Московский журнал международного права (Oct 2021)
Сovid-19 and International Law: General Issues
Abstract
INTRODUCTION. In December 2019, an outbreak of coronavirus infection (SARS-CoV-2) transmitted by airborne droplets was recorded in Wuhan, China. In mid-January, the virus was detected in Thailand and Japan; in March, the center of the pandemic moved to Europe; in early April, the United States came out on top in terms of the number of infections. To combat the virus, many states have introduced emergency measures, including lockdowns, social distance requirements, mass testing, etc. The pandemic has affected all spheres of public life, including international relations and international law.MATERIALS AND METHODS. The article analyzes the response to the pandemic on the part of states, organizations and the doctrine of international law; examines the international legal aspects of the pandemic: application of the International Health Regulations 2005, possible responsibility of China and other states, impact of the pandemic on human rights. The problems of legal regulation in connection with the pandemic are defined and the ways of their solution are determined. The subject of analysis is the materials of foreign legal press, first of all, posts and articles on the Internet. In addition to the data of international law, scientific categories of philosophy, economics and political science are used.RESEARCH RESULTS. Major UN bodies have reacted to the pandemic with general statements. WHO positioned itself as an international center for the fight against the virus and made recommendations that, however, were not implemented by states which adopted more restrictive measures. The main document that guided WHO is the International Health Regulations 2005 (IHR). Some states and the media accused China of a belated reaction and withholding information. As a result, the doctrine has discussed the issue of bringing a claim against China to the International Court of Justice. The legal basis for this claim could be the provisions of the IHR, the WHO Constitution and a number of duediligence obligations. The jurisdictional basis for applying to the ICJ could be Art. 75 of the WHO Constitution, and to an arbitration Art. 56 IHR. In response to the pandemic, many states have limited human rights; references have been made to the possibility of a temporary derogation from human rights obligations in an emergency and the possibility of limiting human rights in the interests of national security, health and the protection of the rights of others.DISCUSSION AND CONCLUSIONS. The foreign doctrine notes an nsufficient response frominternational organizations and makes proposals aimed at expanding the powers of the UN Security Council in combating the pandemic and at reforming the WHO. In addition, there are shortcomings of the IHR that hinder their effective use. The possibility of holding China accountable is questioned: there is nsufficient evidence of the violation; the threshold for breach of duediligence obligations is very high; China is unlikely to agree to participate in the lawsuit against it. Nevertheless, several lessons can be learned for the law of responsibility (the possibility of deviating from the principle of full compensation, etc.).The procedure for derogating from human rights obligations during a pandemic also needs clarification. In general, the international legal doctrine coped with the task of understanding of the pandemic phenomenon: it systematized and qualified the facts, discovered and formulated legal problems, both private and public, and suggested means to solve them. Few questioned the advisability of such a harsh global reaction and formulated a radical criticism; instead, the shortcomings of individual measures were noted and proposals were made to improve their effectiveness.
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