COVID-19 | Notes to redesign the global order: International Law

May 7, 2020

Javier Surasky
Cepei
j.surasky@cepei.org

May 7, 2020

International law has “bad press”. Every time its rules are breached, the facts occupy the front pages of worldwide newspapers: wars, genocides, famines, pandemics (we will return to this last point later on). However, international law is respected by almost all States. If this were not the case, imported products would not reach us (governed by international trade and health standards); It would be impossible to make international phone calls (country codes are the result of international regulations); Airplanes would crash quite regularly (the rules on air security and routes are part of international law), and the list could continue. The truth is that in our daily activities, we are surrounded and protected by international regulations, even when it doesn’t seem like it.

The strengths and weaknesses of international law respond to the characteristics of the society they regulate. A society in which States, and not individuals, are the main actors, where political games of unequally power abuse and misuse are played.

However, international law keeps the free and violent exercise of power on the international scene restrained. We explain this as a paradox: Powerful States have significant influence when defining the contents of international law, but it is the least powerful states the ones that need the greatest respect of its norms, for the simple reason that the strong are always better prepared to ignore the norms they have established.

The United Nations Charter drafters were aware of this paradox. Therefore, they decided to include the respect for international law in the Charter’s preamble, and also as “a principle among purposes” of the organization (article 1.1). Moreover, the same document established that the UN General Assembly must “promote the progressive development of international law” (article 13.1). To that end, in 1947, the UN member States created the United Nations International Law Commission, the origin of some currently in force international agreements. Shortly after, in April 1948, the same countries signed the document which created the World Health Organization, and that same year, in September, the Universal Declaration of Human Rights was adopted. The war had taught to those leaders that respecting international law and working jointly in multilateral institutions was necessary for a world that aimed to move away from horror.

Focusing our attention on today’s much-criticized World Health Organization (WHO), let us begin by pointing out that the States have set a single main objective for it: “the attainment by all peoples of the highest possible level of health” (WHO Constitution, article 1). To do so, they gave the WHO a set of functions, among which is “to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments” (Article 2.d). Only for those who “request or accept” it. The WHO Member States decided that the organization could not “force” any State to receive its support or to follow its advice even if this could lead to a world pandemic.

Nevertheless, the WHO became the driving force behind the International Health Regulations (IHR) adoption. The IHR is the primary legal instrument we have for dealing with a pandemic. Adopted in 1969, amended in 1973, 1981 and 2005, the current version of the IHR came into force in 2007. This document, rarely mentioned during COVID-19 days, is the “internationally agreed guide to behave” in the case of pandemics. It is an international law document (always improvable) that provides the international community with various tools that could have helped to face the actual global health emergency. Unfortunately, the IHR tools have been implemented slowly and weakly.

Have there been failures in the crisis management by the WHO? It’s possible. Did the WHO reacted too late? Maybe. Were the WHO warnings, made in 2019, of imminent danger of a pandemic heard? No. Did States gave the WHO the resources it needed to fulfill its mission and be prepared for a pandemic like the current one? Definitely no. In a previous post, we pointed out that governments across the world have been deaf and foolish.

Consequently, we can affirm that the problem is not whether international law is useful or useless (if you are keen to take the second option, I kindly invite you to imagine how a world without the United Nations Organization or Human Rights international protection would look like). Instead, we need to understand what the reasons behind its failures are.

To honor the UN Charter’s commitments, and to live up to the efforts required to redesign our increasingly uncertain world, we need to set “international rules”. The first condition to make that possible is world leaders’ action, making international law a reality, and not beautiful but empty texts.

In a world where easy paths can no longer be walked and planetary challenges must be faced without any delay, when moving-forward implies to pay the costs of an unpaid debt, we must resort to all the elements that we have on hand. International law is there, waiting to be rescued from the tyranny of short-term measures and greedy blindness. Like any other tool, international law can do little by itself, but it becomes powerful when managed by skilled hands.

The world we are called to build must understand what Jeremy Bentham told us almost 200 years ago: The greatest happiness of the highest number of individuals is the foundation of laws. Isn’t that an exciting horizon for the post-pandemic world?

External inputs

Informe de las políticas y acciones tomadas frente al Covid-19 en 26 países de la región (Spanish)

“An additional 43,300 cases and 3,225 deaths were reported in the past 24 hours, representing approximately 3% and 4% relative increase for cases and deaths respectively, compared to the previous day.”
PAHO, May 7, 2020.

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