The sudden and dramatic COVID-19 pandemic raises many novel questions of international law. Once the pandemic phase eventually ends, serious questions will be raised as to the ability of existing international law and global governance structures to cope with such an event. Lessons will be learned, and international law will evolve.
Meanwhile, it is important to consider the existing legal framework and the extent to which international law is responding to the pandemic, as well as the nature of international legal problems that have arisen, or that will clearly develop.
This article discusses international legal issues surrounding the global health response and the developing crisis at sea. Obviously there are many other issues that arise, including serious issues of international trade, restrictions upon international aviation and international freedom of movement, as well as the human rights implications from the sudden and extraordinary domestic measures in many countries that restrict freedom of movement in the most severe ways.
The Framework Role of the WHO
The international community has long-feared the outbreak of a health pandemic. However international law has been relatively poorly equipped to respond. The World Health Organisation (WHO) has been the focus of international co-operative efforts to meet the pandemic challenge. The basis of that response is the International Health Regulations (the “Health Regulations”) which were originally adopted in 1969. They are made under the authority of Articles 21(a) and 22 of the Constitution of WHO and are binding upon all WHO Member States who do not specifically choose to opt out after adoption by the Health Assembly of the WHO.
The current version of the Health Regulations were adopted in 2005. They came into force for 196 States in June 2007. The Health Regulations provide a basis for international co-operation, in good faith, between States. Importantly for present circumstances, the 2005 Health Regulations were significantly updated and amended in response to the SARS respiratory epidemic.
The Health Regulations permit the Director-General of the WHO to declare the existence of a public health emergency of international concern.
Following the detection of COVID-19 in December 2019 in Wuhan, China, and the rapid escalation of infection and death within China and throughout many countries, the Director-General declared a public health emergency on 30 January 2020.
However, even following the declaration of emergency, the effectiveness of the Health Regulations is open to question.
Part of the issue is that the Health Regulations (properly) seek to balance the protection of health with unnecessary interference with international traffic and trade (Article 2). Whilst that balance is appropriate and necessary, it may have worked against taking the early and drastic steps affecting international traffic which may have helped to reduce the global spread of the COVID-19 virus.
One area in which the Health Regulations do seem to have assisted is in relation to the relatively early international communication by China of the detection of the virus. Surveillance of possible disease (Article 5) and communication of disease (Article 6) is a central aspect of the Health Regulations.
Article 6 requires a State to notify the WHO within 24 hours of assessment of all events that may constitute a public health emergency of international concern occurring within the State’s territory. Obviously questions will be asked as to whether China’s actions amounted to strict compliance with this obligation, and the extent to which earlier notification may have been critical. It should be noted however, that on the information available China does seem to have complied with its obligations under Article 6(2) to provide detailed information including (laboratory testing results and RNA sequencing), which has enabled progress to be made in relation to potential vaccines.
Following the declaration of a public health emergency, the Director-General is empowered by Article 15 of the Health Regulations to make immediate temporary recommendations designed to reduce the international spread of disease. However the power in Article 15(2) is conditioned not only by the need to reduce the spread of disease, but also by the need to “avoid unnecessary interference with international traffic”. It might be expected that following this pandemic the balance sought to be drawn between the competing goals will be closely examined.
On 30 January, the Director-General made a series of recommendations. They included that China communicate with its population in relation to the outbreak and conduct screenings at international airports and ports to facilitate early detection of symptomatic travellers. The recommendations called upon other countries to be prepared for containment of the outbreak and prevention of onward spread, and cooperate by identifying the source of the virus and develop necessary treatment.
Interestingly, Article 18 provides expressly that recommendations may include placing suspect persons under public health observation, isolating and treating suspect persons, and implementing quarantine of suspect persons.
The Director-General’s recommendations on 30 January appear, with hindsight, to have been ineffective and inadequate to meet the challenge of containing the viral spread. That may well be a function of the existence of asymptomatic airline passengers, and the possibility that by 30 January 2020 the virus was already globally well distributed. The content of the recommendations, and the effective and timely implementation of domestic provisions to give effect to them in this pandemic will need to be closely examined.
Beyond the recommendations of the Director-General, the WHO has taken a coordination role, facilitating the collaboration between States that is required by Article 44 of the Health Regulations. The size and critical nature of this pandemic, together with the speed with which it erupted, place great stress upon the principles of collaboration and create an environment in which States tend to be inwards looking, and concerned about domestic survival. Whilst understandable, global cooperation remains a key to medical research responses to the pandemic, as well as to the provision of medical supplies to States and peoples most in need at any one time.
It is very clear that the extraordinary measures taken by many States would, in ordinary circumstances, amount to breaches of existing bilateral, multilateral and investor-state regimes. Measures taken by States include some apparently directly based upon the Director-General’s recommendations. Other States have acted unilaterally to impose very significant restrictions. The extent to which those measures may amount to actionable or internationally wrongful acts, or to trigger expropriation or other provisions of investor-state agreements, is a matter deserving detailed consideration in a separate note.
Any claims might be expected to be the subject of defences based upon the urgent and critical nature of the threat. Defences of a general nature under customary international law could include those of force majeure or necessity. The onus would be on the defending State to make good a claim that the crisis made an obligation impossible to perform (in the case of force majeure) or that the action taken was the only, and proportionate, response to the situation. Defences to claims of wrongful conduct may also arise under particular treaty exceptions. Some treaties, including some bilateral investment treaties include ‘public order’ or similar exceptions; others make provision for urgent public health measures (for example by Articles 5.5 and 9.11 of the China-Australia Free Trade Agreement).
For present purposes it should be noted that any dispute arising in relation to the Health Regulations themselves (presumably including the interpretation of, and consistency with, the Director-General’s recommendations, as well as possibly extending to the treatment of cruise ships) may be the subject of dispute settlement procedures under Article 56 of the Health Regulations. The extent to which investors trigger dispute settlement provisions of BITs or investor-state agreements, and whether States resort to dispute settlement procedures under Article 56 (to arbitration under the rules of the Permanent Court of Arbitration, or to external dispute settlement processes) will become clear in coming months.
The special case of Cruise Ships
The position of cruise ships (and other vessels) requires close examination. It seems clear that the contagious nature of COVID-19 has allowed transmission within cruise ship populations at a high level, with the Diamond Princess being the most obvious example. The result is the unedifying sight of many thousands of cruise ship passengers in a state of international limbo, unable to land, and in some cases being denied prompt access to ports for purposes of refuelling and reprovisioning, or even allegedly the provision of appropriate medical treatment for individuals on board.
The Health Regulations deal with the position of vessels in great detail, and State parties to the WHO are bound by legal obligation to comply with those provisions.
A distinction is drawn between ships “coming from an affected area” and those which do not. Where a ship is not coming from an affected area, Article 25 requires that it be permitted to take on fuel, water and supplies, and that no health measure be applied to the vessel.
However given the number of affected areas, in the COVID-19 pandemic, the more significant provisions are those dealing with ships coming from affected areas.
Such vessels, when in transit, are governed by Article 27. That Article permits a coastal State, if evidence of a public health risk or clinical signs of infection are observed, to disinfect the vessel, and take other steps within the scope of the health Regulations to secure an “adequate level of control of the public health risk”. Importantly, the vessel may be allowed to depart and must be permitted to take on fuel, water, food and supplies before departure.
By Article 28(1), a vessel must not be prevented from calling at any port of entry of a coastal State, although it may be directed to a port of entry which is more appropriately equipped to deal with the health crisis. By Article 28(2) vessels must not be refused free pratique (the ability to enter a port on assurance that the vessel is free from disease) on public health grounds, although the coastal State may grant free pratique on condition of inspection, decontamination or other necessary measures to prevent the spread of infection. The coastal State obligations under Article 28 to permit the taking on of fuel, water, food and supplies have been severely tested by the COVID-19 pandemic, given that it seems that with present medical science it is not easily possible to disinfect or otherwise deal with on board infection so as to prevent the spread of risk within the coastal State.
Notably, Article 28(6) permits an officer in command of a ship to take “such emergency measures as may be necessary for the health and safety of travellers on board”. It is not clear at the date of writing whether any ships’ captain has declared a mayday emergency or taken other forceful steps to ensure the health treatment of infected passengers and crew,
The operation of Article 28 is expressly made subject to Article 43. Article 43, entitled “additional health measures”, permits a State to implement health measures consistent with international law in response to specific public health risks or public health emergencies of international concern which are otherwise inconsistent with (relevantly) Articles 28(1) or 28(2). Any measure which involves refusal of entry to international travellers or conveyances (including vessels) must be notified to the WHO together with the rationale for the restrictive measure.
Notably, Article 43 does not exclude the possibility of a ships’ captain taking emergency measures to secure the health and safety of those on board. States are obliged under the 1979 International Convention on Maritime Search and Rescue to ensure that assistance is provided to any person in distress at sea and to provide for medical and other needs and deliver them to a place of safety.
Regrettably, it seems increasingly likely at the date of writing that vessels may have to declare states of distress in order to obtain coastal State assistance for seriously and critically ill passengers and crew. The fact that vessels are in such a predicament demonstrates with harsh reality the extraordinary tension between coastal state self-interest and obligations to those at sea.
Dr Christopher Ward is Senior Counsel of the New South Wales Bar, Adjunct Professor of the Australian National University and President of the International Law Association.