Resolutions and declarations are the results of political compromises and nothing else. They merely languish in the hinterland of global rhetoric, to be used or not by countries at their behest.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
Inequality is neither economic nor technological. It is ideological and political.
Thomas Piketty, Capital and Ideology
There is no such thing called “pandemic law”. At least, not in a general sense as in environmental law, criminal law or contract law. For that matter, there was no such thing as environmental law until the Stockholm Conference of 1972, which was initiated to discuss the threat of acid rain. Until this point in time, public international law was neither concerned with environmental protection nor with the interests of the climate and the rapidity with which it could change for the worse due to our own feckless insouciance. Either we were not aware of the dangers of our own actions or there were other important things to worry about. Inevitably, as Nobel Laureate Amartya Sen said, we thought that nothing would happen if we interfered with the environment as little as possible. But wittingly or unwittingly we did interfere big, with catastrophic consequences.
The same scenario could be seen as being played out with the current pandemic. Like environmental abuse, which now has far reaching consequences politically, economically and socially, the pandemic, hitherto not in the radar of the international community and forgotten as a global threat, since a global pandemic was last experienced a hundred years ago, has shown substantial effects adverse to humanity, firstly to life itself but also to the economic and social well being of the entire international community. It has even threatened global security, as TIME of 18 May 2020 reported, that ISIS militants on May 1 carried out an attack on Iraqi paramilitary forces killing 10. TIME said: “ Amid the COVID 19 pandemic, the US troop drawdown, and Iraq’s internal political crisis, experts say ISIS is exploiting security gaps – and shifting its tactics from intimidation and assassinations to more sophisticated techniques”.
The UN’s Framework for the Immediate Socio-Economic Response to the COVID 19 Crisis has warned that “The COVID-19 pandemic is far more than a health crisis: it is affecting societies and economies at their core. While the impact of the pandemic will vary from country to country, it will most likely increase poverty and inequalities at a global scale, making achievement of SDGs (Sustainable Development Goals) even more urgent”. This statement shows it is therefore incontrovertible that there is a compelling need to seriously consider a global response that would establish legal norms establishing State responsibility in the event of an initial outbreak of a communicable disease, as well as the prudent and responsible management practices of an outbreak.
This article does not serve to suggest the usual Resolution of the United Nations General Assembly as a panacea to the horrific threat the world faces which has upended almost every aspect of human conduct and living. In 2018 we saw a Resolution on Tuberculosis. The UN stated: “the General Assembly adopted two resolutions containing political declarations on urgent global responses to tuberculosis and on accelerating efforts to address non-communicable diseases. By the terms of the resolution “Political declaration of the high-level meeting of the General Assembly on the fight against tuberculosis” … the Assembly adopted the Declaration “United to End Tuberculosis: An Urgent Global Response to a Global Epidemic”, by which world leaders pledged to end the global tuberculosis epidemic by 2030 and acknowledged that the disease disproportionately affects developing countries”.
Resolutions and declarations are the results of political compromises and nothing else. They merely languish in the hinterland of global rhetoric, to be used or not by countries at their behest.
With the COVID pandemic, the world would need more than just resolutions or declarations or goals. We would need an instrument that could enforce accountability on negligent countries, whether in the monitoring of sanitary conditions within their territories or in disseminating news of a pandemic threat without delay. It is inexcusable that these two elements are not covered in a binding and enforceable legal document.
Such an instrument should not be the relegated to entering into force upon a certain number of ratifications, nor should it be subject to applicability only to countries which ratify the treaty. A multilateral treaty in this context should transcend borders and proprietary rights in order that sickness, death and inequality caused by a global pandemic be obviated. Thomas Piketty says in his book (quoted above) : “more generally, inequality today is strongly influenced by the system of borders and national sovereignty, which determines the allocation of social and political rights. This has given rise to intractable multidimensional ideological conflicts over inequality, immigration and national identity…” Piketty is right: borders and national sovereignty have amply demonstrated the miserable failure of some countries in handling the pandemic crisis which has led to several hundreds of thousands of deaths in addition to poverty and misery.
The sovereignty that is relevant in the carving of a global instrument against the proliferation of communicable viruses should be based on, what Richard Haas, Chief of the Foreign Relations Council called “sovereign responsibility”, which means that sovereignty should not stop at borders but extend to helping countries and their people who might suffer as a result of arbitrary and capricious decisions of leaders taken under the shroud of national sovereignty. The most important characteristic of a global treaty in this context must be the requirement to be recognized as an instrument of customary law which is applicable to all members of the United Nations, irrespective of ratification. In effect, such a treaty would be on par with the Vienna Convention on the Law of Treaties of 1969 which applies globally without exception.
In the final analysis, addressing the devastating effects of the COVID pandemic is a matter of State responsibility. It is already an entrenched principle of international law that territoriality can be overridden by extra territorial measures by individual countries on the principle of the “effects theory”. This theory goes to say that a country has a legal right to legislate beyond its borders against a threat which would have an adverse effect on its territory and people. Therefore conceptually, countries have a legal right to hold legally responsible other countries whose negligent actions would adversely affect them, as it has happened with the current pandemic.
With the bizarre state of affairs we are currently in when it comes to nationalism and populism, the question as to how a mandatory instrument of customary international law would be globally acceptable, let alone be conceived and developed, is another issue.
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