COVID-19 and International Law Series: Introduction

[Editor’s Note: This article is the first article in a Just Security series “COVID-19 and International Law.” All contributions to the series can be found here.]

As of this writing, the global COVID-19 pandemic has infected more than 50 million people and killed more than 1.2 million – including over 238,000 in the United States alone. In the United States, pundits and journalists have focused on the ineptness of the Trump administration’s response, the development of potential COVID-19 vaccines, and the different approaches of the two presidential campaigns to addressing the pandemic. Fewer writers have looked outward to consider COVID-19’s toll on the international legal order.

In this series of articles, collectively entitled COVID-19 and International Law, we aim to partly fill that gap by exploring the specific ways in which States’ responses to the spread of COVID-19 are regulated by international law and the impact of this pandemic on State practice in various bodies of international law.  In this article, we begin by describing the course of the pandemic and the key responses to it, before turning to the various international legal issues that these responses raise – issues that we will address in depth in the rest of the series.

President-elect Joe Biden made battling the COVID-19 pandemic a centerpiece of his presidential campaign.  He emphasized that, if elected president, he would take steps to “help lead the response to this crisis globally.” As he and his team now begin to work to make good on that promise, they can start by ensuring the United States and other countries around the world commit to fighting the pandemic within the bounds of international law. This series offers a starting point for that effort.

The Spread of COVID-19

COVID-19 is believed to have originated in a seafood and poultry market in Wuhan, China late last year, though virologists at the Wuhan Institute of Virology as well as several other foreign experts have argued otherwise. The virus quickly spread from Wuhan to other parts of China as the government silenced doctors and whistleblowers who were calling attention to the virus’ deadly potential. It did not take long for the virus to spread worldwide. Europe’s first case of COVID-19 may have come as early as December 2019.   The first cases were detected in the United States in January. The African continent recorded its first case in early February and a case was confirmed in Latin America some weeks later.

Some jurisdictions, such as Taiwan and Hong Kong, implemented controls and restrictions immediately and were able to contain the spread of the virus. As CNBC reports, the Taiwanese government closed borders early, increased the domestic production of masks, and relied on big data tools to track the virus’ spread. South Korea is another early success story. As The Atlantic notes, South Korea based its COVID-19 strategy on fast testing, expansive high-tech tracing, and zero-tolerance isolation – that is, the “South Korean public-health policy” was “test, trace, and isolate.”

Other countries have been far less successful. In the United States, for example, President Donald Trump refused to take the virus seriously in its early months. As of this writing, over 238,000 have died and over 10 million have been infected by the virus, now including the President, the First Lady, and many members of the Trump administration. The United Kingdom’s initial lack of urgency in responding to the virus’ threat also led to tens of thousands of excess deaths, disproportionate impacts on ethnic minorities, and a staggering death rate proportional to population. In India, the coronavirus has infected over 8.5 million people.  In late summer, India led the globe in terms of the number of new recorded COVID-19 cases per day, and the true infection count was likely even worse.

Even countries that more effectively dealt with COVID-19 have faced new bouts of infection. Hong Kong experienced a second COVID-19 wave in March after overseas students and residents started to return to the territory, and then experienced a third wave in July. In Canada, where various provincial governments had brought the pandemic under control over the summer, the national case count is rising yet again. France, Spain, and even Germany – hailed in the summer as a model of effective containment – have all seen their case counts and positivity rates rise dramatically in recent weeks. As seasons shift and various countries face new bouts of COVID-19 infections, it is clear that the international community’s fight against the pandemic is far from over.

The Need for an International Response to the Pandemic

Several commentators have focused on how individual countries have responded to the COVID-19 pandemic or how it has exacerbated ongoing domestic challenges (see, for example, pieces on Ecuador, Nigeria, China, Italy, Russia, South Korea, and the United Kingdom). But beyond the toll the pandemic is taking on individual countries is a broader concern of the toll it is taking on the international legal order. In recent remarks to the United Nations General Assembly, French President Emmanuel Macron warned that the U.N. “runs the risk of powerlessness” and that “this crisis, undoubtedly more than any other, requires cooperation, requires the invention of new international solutions.” A companion webinar to this series of articles considers the effects of the coronavirus pandemic on the global order and whether its effects will last long after the pandemic ends. This series focuses on a related topic: the international law consequences of the current pandemic.

United Nations officials have called on world leaders and non-state actors to recommit to international law in this moment. Filippo Grandi, the United Nations High Commissioner for Refugees, has warned States not to close “avenues to asylum” or to force “people to return to situations of danger,” arguing that “we all need … solidarity and compassion now more than ever before.” António Guterres, the United Nations Secretary General, has called for warring actors to respect international humanitarian law and has even appealed for a global ceasefire.

Before States and commentators can suggest meaningful reforms to the international system, however, it is essential to first establish the scope of the issues raised by the pandemic. That is what this series aims to do.

The Range of International Legal Issues Raised by the Pandemic

In this multi-article series, we will examine the ways in which COVID-19 is straining rules and norms of international law. We will focus on five main bodies of law implicated by the pandemic and States’ response to it: (1) international humanitarian law, (2) international human rights law, (3) international refugee law, (4) international cyber law, and (5) the rules and regulations of the World Health Organization. We aim to highlight the key issues that COVID-19 raises with regard to each.

We begin with three articles on the intersection of COVID-19 and international humanitarian law – the law that governs during armed conflict. We address, first, the rules and norms governing the conduct of hostilities during a pandemic; second, how the pandemic affects state obligations to provide humanitarian access; and third, the treatment of detainees during an armed conflict during a pandemic.

The next set of articles addresses the intersection of COVID-19 and international human rights law. We first examine how the pandemic affects states’ obligations to protect the right to life. Next, we turn to the right to health, the scope of its application, and how it applies in a pandemic context. Finally, we document how various States have upheld or infringed various civil and political rights in responding to COVID-19, focusing on speech and assembly, privacy, electoral participation, fair judicial proceedings, and protection against deprivation of liberty.

The series then turns to questions of refugee law, identifying States’ obligations to asylum-seekers in the COVID-19 context. We examine the obligation of non-refoulement, which prevents States from returning asylum-seekers to unsafe foreign territory even during a pandemic. We also examine the obligations that States owe to asylum-seekers, refugees, and other immigrants detained in state-operated facilities or confined within camps and settlements.

The series’ final two topics are cyberlaw and the World Health Organization (WHO). We ask whether cyberattacks attempting to steal vaccine research and COVID-19-related disinformation campaigns aimed at foreign citizens might break international law. And we examine WHO regulations, asking whether States, or even the WHO itself, might have violated these rules. We also consider what role the WHO’s legal architecture might have in the organization’s failures in response to COVID-19 and whether it’s time to explore how it might be improved.

By clearly identifying the ways in which States’ actions in response to COVID-19 are governed by international law, we hope this series will spark a conversation about how States can – indeed must – respond in ways that are consistent with the full range of their legal obligations.

Image: NEW YORK, NY – MAY 13: Medical workers in personal protective equipment (PPE) test for COVID-19 at Abyssinian Baptist Church, one of 11 churches across the city as well as Nassau County and Westchester that has begun testing for the virus on May 13, 2020 in New York City.  (Photo by Spencer Platt/Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Preston Lim

J.D. student at Yale Law School, former Schwarzman Scholar at Tsinghua University - Follow him on Twitter (@PrestonJordanL1).

Mark Stevens

Mark Stevens is a 2021 J.D. candidate at Yale Law School and Hansell Fellow at the YLS Center for Global Legal Challenges. Follow him on Twitter at (@MarknotSteve)

Alasdair Phillips-Robins

Alasdair Phillips-Robins is a second-year student at Yale Law School, where he is a Hansell Fellow at the Center for Global Legal Challenges and a member of the Media Freedom & Information Access Clinic. Follow him on Twitter at (@alasdairpr)