The Second Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research

[Dapo Akande, Antonio Coco, Talita de Souza Dias, Duncan B. Hollis, Harold Hongju Koh, James C. O’Brien and Tsvetelina van Benthem.]

The alarming spread of the global COVID-19 pandemic—now infecting nearly 19 million and claiming more than 700,000 lives worldwide—has made it increasingly urgent to define international law protections for the health care sector against malicious cyber operations.

In May 2020, malicious cyberattacks on organizations at the frontline of the response to the COVID-19 pandemic—including the World Health Organization, medical providers, research institutes, pharmaceutical manufacturers, hospitals and hospital networks—triggered a two-day virtual workshop at the University of Oxford. That workshop—co-sponsored by the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) at the Blavatnik School of Government, Microsoft, and the Government of Japan—yielded the first Oxford Statement on the International Law Protections against Cyber Operations Targeting the Health-Care Sector.  More than 130 international lawyers from across the globe (including some of the field’s most experienced and accomplished figures) have become signatories to this Statement. It articulated a short list of consensus protections that apply under existing international law to cyber operations targeting the healthcare sector. Its announcement sparked discussion at a May 2020 Arria-Formula meeting of the U.N. Security Council on Cyber Stability, Conflict Prevention and Capacity Building.

As the pandemic continues to unfold, vaccine research has emerged as a new, critical vulnerability. Last month, the United Kingdom, the United States (US) and Canada issued a joint advisory accusing Russian intelligence services of targeting COVID-19 vaccine development “with the intention of stealing information and intellectual property.” A few days after, the US Department of Justice unsealed an indictment accusing individuals linked to China’s Ministry of State Security of hacking entities working on COVID-19 treatments, tests, and vaccines. International law must protect this research from external interference to ensure that a safe, effective and universally available vaccine can reach afflicted, needy populations in the near future.

This urgency led Oxford’s ELAC to host a second virtual workshop on July 31, 2020, again co-sponsored with Microsoft and the Government of Japan, to hear from vaccine researchers and information security experts about the special challenges of protecting vaccine research from cyber-intrusion. Those experts explained that cyberattacks or intrusions into ongoing Phase III clinical trial research, for example, could corrupt or tamper with the relevant data needed to establish a vaccine candidate’s efficacy, leading to the trial’s failure, and the loss of time and lives in the fight against COVID-19.

The workshop clarified both the cyber protections needed by vaccine research, and how international law applies to the protection of the development, testing, manufacture, and distribution of a COVID-19 vaccine. That discussion has now led to The Second Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research, reproduced below. 

Once again, the aim of the Second Oxford Statement is not to cover all applicable principles of international law but, rather, to articulate a short list of consensus protections that apply under existing international law to malicious cyber operations targeting vital vaccines. The Oxford Statement was opened, and remains open, for signature by international law scholars, with hopes that it will spur discussion and clarification of the international legal framework in this area. It is part of an ongoing “Oxford Process”, which aims to articulate points of consensus on international legal rules with respect to urgent global problems, ranging from cyberattacks on the healthcare sector to election security.

Global crises create unique opportunities for international lawmaking. There is no better moment to make explicit and unambiguous—in real and virtual space, in times of war and peace—that when a global pandemic rages, international law must protect the means to ending it. Why does international law exist, if not to save innocent people from needless death?  

The Second Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research

As the COVID-19 crisis continues to affect millions of individuals around the world, the development of a vaccine becomes an essential component of States’ responses to the pandemic. A vaccine may not only save lives but also mitigate the socio-economic impact of the disease by allowing individuals to interact and work more safely.

Noting that, whilst the coronavirus pandemic and its consequences unfold, medical and research facilities in several countries have been targeted by malicious cyber operations, and that seemingly minor intrusions can disrupt or harm the availability or integrity of the data which could, among other things, compromise the ability to conclude clinical trials, obtain approval for them or manufacture or distribute an eventual vaccine,

Further noting that, because scientific development is now highly dependent on information and communications technologies spread across the globe, such harmful cyber activity may undermine States’ and global efforts to contain and recover from the COVID-19 pandemic and its side-effects,

Bearing in mind that COVID-19 is a highly contagious disease that respects no national borders, making international solidarity essential to restoring global health security,

Considering that the discovery and widespread provision of a safe and effective COVID-19 vaccine could save not just lives, but also economic livelihoods around the world,

Noting the Oxford Statement on the International Law Protections Against Cyber Operations Targeting the Health Care Sector conclusion that ‘[a]ny interference with the provision of health-care, including by cyber means, risks further loss of life as thousands continue to die every day’,

And emphasizing that — even if the specific application and interpretation of international law to the technologies, knowledge and data used in the process of vaccine development require fleshing out — COVID-19 vaccine, research, manufacture, and distribution are both essential medical services and part of States’ critical infrastructure that must be protected by international law,

Guided by these considerations, we agree that, currently, the following rules and principles of international law protect the research, manufacture and distribution of COVID-19 vaccine candidates against harmful cyber operations. We encourage all States to consider these rules and principles when developing national positions as well as in the relevant multilateral processes and deliberations:

1. As affirmed in the first Oxford Statement, international law applies in its entirety to cyber operations by States including those that target the healthcare sector and essential medical facilities. These facilities include vaccine research, trial, manufacture and distribution facilities, other research paths to therapies and preventative measures, together with their technologies, networks and data, particularly clinical trial results, and other research.
2. International law prohibits cyber operations by States that have significant adverse or harmful consequences for the research, trial, manufacture, and distribution of a COVID-19 vaccine, including by means that damage the content or impair the use of sensitive research data, particularly trial results, or which impose significant costs on targeted facilities in the form of repair, shutdown, or related preventive activities.
3. International humanitarian law requires that at all times parties to an armed conflict: (a) respect and protect medical facilities, transport and personnel, including those involved in COVID-19 vaccine research, trial, manufacture and distribution; (b) refrain from disrupting the functioning of COVID-19 vaccine research, trial, manufacture and distribution facilities in any way, including through cyber operations; and (c) take all feasible precautions to prevent and avoid, or at least minimize, incidental harm caused by cyber operations to those facilities, and (d) take all feasible measures to facilitate their functioning and prevent their being harmed, including by cyber operations.
4. Outside of armed conflict, international law imposes negative and positive obligations on States vis-à-vis other States and individuals that afford comprehensive protection to the research, trial, manufacture, and distribution of COVID-19 vaccine candidates.
5. States must take all feasible measures to prevent, stop and mitigate malicious cyber operations against the data or technologies used for COVID-19 vaccine research, trial, manufacture or distribution which they know or should have known emanate from their territory or jurisdiction.
6. States’ positive duties to ensure civil and political rights under international law require them to protect COVID-19 vaccine research, trial, manufacture and distribution to individuals subject to their jurisdiction.
7. The fulfilment of social, cultural and economic rights under international law requires States during a pandemic: (a) to ensure the manufacture and distribution of a COVID-19 vaccine in a lawful, fair, equitable, affordable and non-discriminatory manner; and (b) to cooperate to facilitate access to the vaccine by other countries.

The current list of signatories and their affiliations (for identification purposes only) is below. International lawyers who wish to append their name to the Statement should send an email to oxfordcyberstatement@gmail.com

1. Mark D. Agrast, Executive Director, American Society of International Law
2. Dapo Akande, Professor of Public International Law, Co-Director, Oxford Institute for Ethics, Law & Armed Conflict (ELAC), University of Oxford
3. Mariana Salazar Albornoz, Member of the Inter-American Juridical Committee
4. Katya Alkhateeb, Senior Research Officer, School of Law & Human Rights Centre, University of Essex
5. Daniel Álvarez-Valenzuela, Professor of Law, University of Chile School of Law; Academic Coordinator Centre for Information Technology Law Studies (CEDI)
6. Catherine Amirfar, Partner, Debevoise & Plimpton LLP, former Counselor on International Law, U.S. State Department (2014-2016)
7. Mahnoush Arsanjani, Former Director, Codification Division, Office of Legal Affairs, United Nations
8. Eyal Benvenisti, Whewell Professor of International Law, University of Cambridge, C C Ng Fellow, Jesus College, Director of the Lauterpacht Centre for International Law
9. Russell Buchan, Senior Lecturer in International Law, University of Sheffield
10. Başak Çalı, Professor of International Law at the Hertie School, Berlin and its Director of the Centre for Fundamental Rights
11. Nicolás Carrillo-Santarelli, Associate researcher of International Law, University of Monterrey (UDEM)
12. Koldo Casla, Lecturer, School of Law, University of Essex
13. Anthony E Cassimatis, Professor of Law, University of Queensland
14. Kalliopi Chainoglou, Assistant Professor of International Law and International Institutions, University of Macedonia
15. Alejandro Chehtman, Professor of International Law at Di Tella University, Argentina
16. Roger S. Clark, Board of Governors Professor, Rutgers Law School
17. Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Columbia University Law School, Former Vice Chair, UN Human Rights Committee
18. Antonio Coco, Lecturer in Public International Law, University of Essex and Visiting Fellow at ELAC, University of Oxford
19. Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law
20. Federica D’Alessandra, Executive Director of the Oxford Programme on International Peace and Security, Blavatnik School of Government, University of Oxford
21. Lori Fisler Damrosch, Hamilton Fish Professor of International Law and Diplomacy, Columbia University Law School
22. Tom Dannenbaum, Assistant Professor of International Law, The Fletcher School of Law & Diplomacy, Tufts University
23. Talita de Souza Dias, Postdoctoral Research Fellow, ELAC, University of Oxford
24. François Delerue, Research Fellow in Cyberdefense and International Law at the Institut de Recherche stratégique de l’École militaire (IRSEM) and Adjunct Lecturer at Sciences Po, Paris, France
25. Diane Desierto, Associate Professor of Human Rights Law and Global Affairs, Keough School of Global Affairs, University of Notre Dame
26. William S Dodge, Martin Luther King Jr Professor of Law, University of California, Davis, School of Law
27. Jessica Dorsey, Assistant Professor of International and European Law, Utrecht University School of Law
28. Jeffrey L. Dunoff, Laura H. Carnell Professor of Law, Temple University Beasley School of Law
29. Kristen E. Eichensehr, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
30. Chiara Giorgetti, Professor of Law, Richmond Law School
31. Guy S. Goodwin-Gill, Professor of Law, University of New South Wales (UNSW), Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Emeritus Fellow, All Souls College, Oxford
32. Oleg Gushchyn, Professor, Military Law Department, Taras Shevchenko National University of Kyiv, Ukraine
33. Adil Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers Law School
34. Jakub Harasta, Assistant Professor, Faculty of Law, Masaryk University, Czech Republic
35. Kevin Jon Heller, Professor of International Law and Security, University of Copenhagen, Professor of Law, Australian National University, Academic Member, Doughty Street Chambers
36. Tamás Hoffmann, Senior Research Fellow, Centre for Social Sciences Institute for Legal Studies; Associate Professor, Corvinus University of Budapest
37. Duncan B. Hollis, Laura H. Carnell Professor of Law, Temple University School of Law; Member of the Inter-American Juridical Committee
38. Rebecca Ingber, Professor of Law, Benjamin N. Cardozo School of Law
39. Valentin Jeutner, Associate Professor of Law, Faculty of Law, Lund University
40. Derek Jinks, A.W. Walker Centennial Chair in Law, University of Texas School of Law
41. Kate Jones, Faculty of Law, University of Oxford
42. Harold Hongju Koh, Sterling Professor of International Law, Yale Law School,  Legal Adviser (2009-13) and Assistant Secretary for Democracy, Human Rights and Labor (1998-2001), US Department of State
43. Claus Kreß, Professor and Director, Institute of International Peace and Security Law, University of Cologne
44. Masahiro Kurosaki, Associate Professor of International Law and Director of the Study of Law, Security and Military Operations, National Defense Academy of Japan
45. O-Gon Kwon, President, Assembly of States Parties, International Criminal Court, former Judge and Vice President, International Criminal Tribunal for the former Yugoslavia (Seoul, Republic of Korea)
46. Henning Lahmann, Digital Society Institute, ESMT Berlin, Germany
47. Eliav Lieblich, Senior Lecturer, Buchmann Faculty of Law, Tel Aviv University
48. Rain Liivoja, Associate Professor, University of Queensland Law School
49. Marco Longobardo, Lecturer in International Law, University of Westminster
50. Asaf Lubin, Associate Professor of Law, Indiana University Maurer School of Law; Faculty Associate, Berkman Klein Center for Internet and Society, Harvard University
51. Fabrizio Marrella, Full Professor of International Law, University “Ca’ Foscari” Venice, Italy; Professeur invité at the Sorbonne Law School, University Paris I Panthéon Sorbonne
52. Tomohiro Mikanagi, Ministry of Foreign Affairs, Japan
53. Marko Milanovic, Professor of Public International Law, University of Nottingham School of Law
54. José A. Moreno, Faculty Member, National University of Asunción, Paraguay; Member, Inter-American Juridical Committee
55. Samuel Moyn, Henry R. Luce Professor of Jurisprudence, Yale University
56. James C. O’Brien, Vice Chair, Albright Stonebridge Group
57. Mónica Pinto, Professor Emerita, Universidad de Buenos Aires, Facultad de Derecho
58. Paul S. Reichler, Partner, Chair of the International Litigation and Arbitration Department, Foley Hoag LLP, Washington, DC
59. Michael Reisman, Yale Law School
60. Alix Richard, Public International Lawyer, Port-au-Prince, Haiti; Member of the Inter-American Juridical Committee
61. Przemysław Roguski, Lecturer in Law, Jagiellonian University in Kraków, Poland
62. Barrie Sander, Assistant Professor of International Justice, Leiden University
63. Andrew Sanger, University Lecturer in International Law, University of Cambridge
64. Michael Schmitt, Professor of International Law at the University of Reading and Francis Lieber Distinguished Scholar at the United States Military Academy (West Point)
65. Alfred H.A. Soons, Professor emeritus of public international law, Utrecht University School of Law, The Netherlands
66. David P. Stewart, Professor from Practice, Georgetown University Law Center, Washington DC
67. Elizabeth Stubbins Bates, Junior Research Fellow in Law, Merton College, Oxford; Early Career Fellow, Bonavero Institute of Human Rights, University of Oxford; Research Fellow, ELAC
68. Liis Vihul, Founder and CEO, Cyber Law International
69. Michael Waibel, Professor of International Law, University of Vienna, Austria
70. Alex Whiting, Professor of Practice, Harvard Law School