COVID-19 Symposium: COVID-19 and International Law

[Philippe Sands is a Professor of Law at University College London and a barrister at Matrix Chambers.]

The birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law. The full consequences will emerge over time, but certain observations may be proposed. It is plain that the health needs of COVID-19 go beyond the capacities of our hospitals, and of our international legal structures.

What have we learned?

We are interconnected.

We are fragile.

We are ill-informed.

We need government and cannot rely on the market-place.

We adopt international principles – like precaution – then fail to apply them.

We are adaptable.

We cannot act alone.

Whether the world will act together remains unclear. ‘The epidemic itself and the resulting economic crisis are global problems’, Yuval Noah Harari notes, even as the response confronts us with a binary choice, ‘between nationalist isolation and global solidarity’. Harari opts for ‘global co-operation’.

It cannot be assumed, however, that the fearful and their governments will embrace that viewpoint. The World Health Organisation has shown leadership (‘Test, test, test’, the Director-General declared), as the UK ignored his plea and the US eyed deep cuts to the WHO budget.

The timing is hardly propitious, situated as we are at a ‘strong man’ moment. ‘Make America Great Again’ (the U.S. and President Trump) and ‘Take Back Control’ (the U.K. and Brexit) offered an inward turn, an abandonment of the two countries’ earlier ideas of a rules-based multilateral legal order premised on global co-operation: see The Atlantic Charter, 1941. The assault on multilateral cooperation was underway before COVID-19 worked its magic.

Nor is it apparent, for proponents of greater co-operation, that existing institutions have been sufficiently prepared  for what has befallen, or adequately responsive when it arrived. ‘Each to ourselves’ has been the initial instinct. European Union members defaulted to unilateral actions, bringing back borders and the measures each deemed necessary. The call for a retreat to a world of greater borders will echo widely. More national self-reliance, it will be said, less movement, more barriers.

The cries will multiply. They must be resisted. They will not prevail, not over the longer term. We are where we are, in an imperfect world, and we are in it together, a common humanity, from Anchorage to Abu Dhabi, from Brixton to Bali, from Cartagena to Canberra. As Paolo Giordano puts it in a sublime and painful essay:

‘And so the epidemic encourages us to think of ourselves as belonging to a collective. It pushes us to behave in a way that is unthinkable under normal circumstances, to recognise that we are inextricably connected to other people, to consider their existence and wellbeing in our individual choices. In the contagion we rediscover ourselves as part of a single organism. In the contagion we become, again, a community.’ (How Contagion Works, 2020, p. 24)

The contagion knows no borders, even if we seem unable to look beyond our own boundaries to see the havoc that is wrought.

If nothing else, the need to avoid a greater economic dislocation will drown the calls to shelter behind walls that are higher and stronger. Global co-operation in relation to health, technology, trade and investment is inevitable, as are the response measures that curtail our most basic freedoms, necessary perhaps in the short term, but surely not beyond.

This means more international law, not less. ‘International law may well be our only global value system’, Aung San Suu Kyi recently told the International Court of Justice. (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Verbatim Record, CR 2019/19, 11 December 2019, p. 19, para. 29). Indeed. But what does that value system allow us to do. What is to be done?

International law tends to be responsive, to war, atrocity or other disasters. We are struck by events, and only then do we act. As international lawyers, when it comes to actions, we tend to follow rather than lead. And we have much to learn about interacting with other disciplines, not least in the world of science.

We lawyers know how to ask questions.  

What worked? What didn’t? Why not?

What is needed? What is possible?

What tools are available to us? What new tools do we need?

We lawyers are less effective in offering answers.

Let us use this moment wisely. Let us open our legal imaginations. Let us seek to give true meaning to the notion of a community.