The coronavirus epidemic has now enveloped the globe and generated new forms of governmentality and bio-legitimation practices in its wake. But only new forms of human compassion and solidarity can help overcome this lethal and formidably grim challenge.
Even amidst the disease and death caused by the pandemic, theoretical discourse rages, on the one hand on the intensification of the state of exception in combating COVID-19 and, on the other, the projection of the crisis as an opportunity for building a new future for global politics marked by empathy, fraternity, justice, and rights.
We engage here with only one facet of the new developments: How to read international law in the context of the pointers to the future?
Respect for the norms and standards of international law is among the paramount constitutional duties of the state under Article 51 of the Constitution, regardless of the quibbles on whether the language here refers only to treaty/obligations or also to customary international law. And despite US President Donald Trump’s recent threat of actions against the WHO, international norms, standards, and doctrines remain relevant to making national policy and law.
The difference between the United Nations as a site of normative discursivity and as a site of doing global power politics is sadly manifest even now in the accelerated pace of the pandemic. President Trump’s insistence on calling it a “Chinese virus” renders it extremely unlikely that the pandemic will be discussed during the current monthly presidency of the UN Security Council by China. The threat of veto by China and Russia will always loom large whenever the matter is placed for discussion.
But the UN is also a site of systems of norm enunciation. Along with the International Law Commission, it is responsible for the progressive codification of law. The UN system has developed lawmaking and framework treaties as well as provided auspices for systems of “soft” law that may eventually become the binding law.
Some of the norms of international law are robust and deeply relevant. For example, the peremptory jus cogens — a few fundamental, overriding principles of international law such as crimes against humanity, genocide, and human trafficking apply to all states. And Article 53 of the Vienna Convention on the Law of Treaties goes so far as to declare that a “treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”. And even when ingredients of genocide remain difficult to prove, the International Court of Justice (ICJ) has held, in 2007, that states have a duty to prevent and punish acts and omissions that eventually furnish elements for the commission of crime of genocide. There also exist erga omnes rules prescribing specifically-determined obligations which states owe to the international community as a whole. This was enunciated by the ICJ in 1970 for four situations — the outlawing of acts of aggression; the outlawing of genocide; protection from slavery; and protection from racial discrimination. A great significance of this judicial dictum is that it lays down obligations which transcend consensual relations among states.
In addition, there are three other sets of international law obligations. These are primarily derived from the no-harm principles crystallised in the International Law Commission’s 2001 Draft Articles on the Prevention of Transboundary Harm (DAPTH) and the Paris Framework Agreement on Climate Change, 2015.
The DAPTH has carefully developed norms of due diligence, stressing all the way that these may be adapted to contextual exigencies. But due diligence obligations certainly extend beyond local and national boundaries, especially because the environmental problems have a transboundary impact. Each state is obliged to observe these standards in the fight against COVID-19 as a matter of international law.
The second set of obligations relates to the other core human rights measures — no law or policy to combat epidemics or pandemic can go against the rights of migrant workers, internally displaced peoples, and refugees and asylum seekers. Respect for the inherent dignity of individuals in combating COVID-19 and for the rights of equal health for all, non-discrimination, and the norms of human dignity further reinforce accountability and the transparency of state and other social actors. Panicky and sadist policing, including shoot at sight orders in collective exodus situations, and militaristic responses to food riots de-justify health lockouts and curfews.
The third set of obligations arises out of international humanitarian law. The Biological and Toxin Weapons Convention (BTWC) is pertinent here. India did not subscribe to any conspiracy or racist theory about the origins of COVID-19 — in fact, India’s foreign minister rightly affirmed the BTWC obligations on March 26 (on the 40th anniversary of that Convention). Surely, this global and non-discriminatory disarmament convention deserves applause because it outlaws a whole range of weapons of mass destruction. India has, and rightly so, called for “high priority” to “full and effective implementation by all states parties”.
Multinational and domestic corporations are also liable before an increasing number of domestic courts. As if to confirm this, the Canadian Supreme Court, on February 28, held that customary international law can give rise to a direct claim in Canada if obligations pertaining to forced labour, slavery, cruel, inhumane and degrading treatment, and crimes against humanity are violated.
The starting point of a determined fight against COVID-19 has to be a full-throated repudiation of an ancient Latin maxim, inter arma enim silent leges (in times of war, the law falls silent). Combating this fearsome pandemic calls for re-dedication to nested international law obligations and frameworks.
The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi
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