COVID-19 Symposium: Quantum Leaps of International Law

[Marina Aksenova is a Professor of Comparative and International Criminal Law at IE Law School, Madrid.]

Legal studies condition lawyers to think about international law as progressing in a linear fashion with the gradual evolution of its various institutions in parallel with the development of the body of applicable law – treaties, custom and the general principles of law. At the same time, if one looks at the historical development of the discipline in recent times, it becomes clear that international law develops in quantum leaps rather than in a gradual linear way. These developmental shifts occur in response to crises perceived as being of concern to humanity as a whole. This post argues that the current global health crisis is a unique opportunity to ‘recondition’ the system to better reflect the increased global interconnectedness of people, organisations and states across the world. This momentum should not be lost.

Moment of consensus

Arguably, the entire architecture of the international global order is premised on consensus formed as a response to crises perceived as a threat to humanity as a whole. The entire structure of the United Nations (UN) as a global institution was conceived immediately in the aftermath of the Second World War with the principal aim of preventing aggressive war. The drafting of the UN Charter began on 25 April 1945 in San Francisco. The document was adopted two months later and came into effect on 24 October 1945, a mere six months after work had started. With the memory of mass atrocities still fresh in the psyche of policy makers, the necessary momentum and motivation emerged for taking decisive and much needed action. The process started in the 1940s gave rise to the UN human rights system, international criminal law, and the global economic order (the World Bank, International Monetary Fund, General Agreement on Tariffs and Trade).

The second point of consensus initiating another wave of international institutions and instruments can be traced back to late 1980s and early 1990s when Francis Fukuyama famously announced ‘the end of history’ – a time when the destructive ideologies of fascism and communism appeared to have been defeated. The creation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda through unanimous resolutions of the UN Security Council was one manifestation of this surge in internationalism. That said, one may object that their establishment was rather a sign of the inability of the global actors to prevent mass atrocities from unfolding. Yet, the mere fact that enough support was garnered for the creation of these institutions – an outcome that appeared far from certain to some circles at the time – was a sign that the international community agreed on at least some measure of collective response, however imperfect. The UN Security Council failed to exhibit similar solidarity in the 2000s with respect to the situations in Syria and North Korea.

Are we living through a third wave of consensus building in our present moment? On 11 March, the Director General of the World Health Organization declared a global pandemic – a move acknowledging the truly universal significance of the threat posed by COVID-19. Can the threat of the virus galvanize enough support to trigger decisive action on behalf of the international community as a whole?

Nature of the threat

There are important differences between the threats tackled by international community in the 1940s and the present moment that have implications for potential consensus building. First, policymakers in the 1940s were responding to the devastation of the Second World War, largely to harm that had occurred in the past. The current crisis response is more oriented towards the future, with the focus of policymakers on putting mechanisms in place in order to mitigate the effects of the pandemic prospectively. The number of reported cases globally is disheartening, yet restrictive measures introduced by various governments are more in line with the precautionary principle and the desire to mitigate the effects of the virus in the future.

Secondly, war is a human-led activity and is therefore based on distinctions set out by people. The response of the 1940s was thus tailored to tackling abuses of power by individual civilian and military leaders, as well as eliminating harmful ideologies resulting in discrimination. In contrast, the current pandemic is driven by the laws of nature (even if caused in part or entirely by human colonization of the planet) and is consequently following its own inherent logic. Containment of such a threat is less of an issue of the passing of abstract laws and regulations to which people or states (may) respond, but more a question for scientists and data crunchers. It is impossible to institute a tribunal to prosecute COVID-19 for crimes against humanity as the agent is missing in this case. That being said, international (criminal) law is not to be fully dismissed as irrelevant in tackling the current crisis. As Fabricio Guariglia argues, epidemics and international crimes often stem from the same roots, such as systemic poverty, lack of access to education and basic human rights, including socio-economic rights. The instrument of international criminal justice can therefore potentially be useful in assigning individual responsibility for failing to address these core conditions leading both to offending and the spread of the virus.

Thirdly, the current crisis is unfolding in an incomparably more interconnected world. It reveals that the borders of a nation state serve as weak protection against the disruption of global supply chains and the spread of the virus.

Cooperation vs. deterrence: a new paradigm?

The peculiarities of the current crisis call for a number of potential adjustments to the global governance order. In this post, I only focus on three possibilities.

First, there is an opportunity for rethinking disarmament and international approaches to warfare. A global war on the virus, which is an ‘invisible enemy’, highlights the role of the UN and other international institutions in promoting peace. There are clear challenges in implementing measures aimed at tackling the virus in societies affected by an armed conflict. Can the virus bring us one step closer to peace? On 23 March, the UN Secretary General advanced in this direction by calling for an immediate global ceasefire. ‘The fury of the virus illustrates the folly of war’, Guterres proclaimed, referring to the virus as the common enemy of mankind.

Secondly, there is a possibility to reconsider the architecture of global policy making. The UN Security Council – the executive body of the UN historically tasked with taking collective action to address threats to humanity as a whole – is widely perceived to be flawed in its structure and composition as it reflects the distribution of power following the Second World War. Its key task, at the time of conception, was ensuring deterrence. The pandemic is demonstrating that nature-led disasters have no regard for the disparity in equality among states regardless of their size and historical role. It is then only logical that each and every state needs to have an equal say in the global management of this situation. It is telling that no specific action has been taken by the UN Security Council yet to respond to the pandemic. If the virus is merely a ‘test run’ for other (and perhaps even more devasting) nature-driven disasters that may ensue as a result of the extensive damage done to the planet, then we need to have a quick and effective global response mechanism. Cooperation, and not deterrence, should be the guiding principle of its operation. The UN Charter provides a legal basis for building on this principle in Articles 1(3), 55(b) and 56.

Finally, transparency may rise to the forefront of discussions at the international level. As states implement unilateral measures to combat the virus, there is a clear threat of misinformation spreading through the media. International institutions may play a key role in the future by facilitating a roll-back of national emergency response actions trampling on individual freedoms. Transparency and accuracy of information may become an increasingly important tool to address constituencies below the level of the state. Such clear communication may then have capacity to put pressure on governments to ease restrictive measures once the emergency has passed.