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Promoting a Fresh Look at International Human Rights Law

The Institute of International Law (IIL) created a special commission on Pandemics and International Law composed of 16 prominent international legal experts from all over the world to study the relationship between pandemics and international law. AUWCL’s own Dean Emeritus and Professor Claudio Grossman joined this working group in February 2020, when the group was first formed.

With this commission, the Institute addresses cutting-edge issues in international law. The Institute was founded in 1873 in Ghent, Belgium by eleven well-known international lawyers as a learned society, with the purpose to promote the progress of international law. In recognition of its action in favor of arbitration among States, a peaceful means of settling disputes, the Institute received the Nobel Peace Prize. AUWCL’s Dean Emeritus and Professor of Law Claudio Grossman was elected Associate Member in the August 2019 session of the Institute.

The commission on Pandemics and International Law focuses on the development and clarification of legal principles for future action in preparation for and response to a pandemic. Prof. Shinya Murase was appointed Rapporteur of this commission. The other fifteen members are José E. Alvarez, Antony Terence Anghie, Eyal Benvenisti, Francesco Francioni, Vanda Eva Lamm, Campbell McLachlan, Theodor Meron, Václav Mikulka, Gérard Niyungeko, Fausto Pocar, Antonio Remiro Brotóns, Bernardo Sepúlveda-Amor, Dire Tladi, Hanqin Xue, and AUWCL’s Professor Claudio Grossman. All of them are widely recognized experts, prominent academics, international judges or accomplished practitioners in international law. Pursuant to Article 38.1(d) of the Statute of the International Court of Justice, the work of this authoritative group of eminent experts constitutes doctrine that may be used as auxiliary means of determining the meaning of customary and other international rules in force.

Professor Claudio Grossman participated in this endeavor generating four comments so far,  putting  substantial effort into analyzing matters that include the effect of pandemics on the conduct of states, international organizations, the impact on persons and under what international legal obligations states are to respond and prevent the impacts and risks of pandemics.

Grossman observed that currently the international legal framework that might be applicable to pandemics consists of an extensive patchwork of international treaties, customary norms, and principles on the most varied issues. According to him, who spoke only on  general terms  because of the nature of a process taking now place, it is desirable to have a comprehensive overview of all matters that impact the protection of persons. Such an overview may avoid further fragmentation and incoherent application of this vast legal regime.

Professor Grossman has a particular interest in this topic, as the response to pandemics touches upon many aspects of international law, human rights, humanitarian law, international organizations, peace and security  He observes for example, that the phenomenon of the pandemics underlines the need for an important shift in international human rights protection. The COVID-19 crisis has made this particularly clear. The shift is from “abstention”, traditionally required from states, to “positive action.” Abstention means that states are prevented from interfering with certain rights, such as the right to life, privacy, and the freedoms of movement, expression, and religion. The positive action that contemporary human rights law requires from states comprises proactive engagement of the state with individuals and groups to effectively provide the conditions for the realization of human rights. Programmatic developments , policies involving economic, social, and cultural themes, and the recognition of a space for the human rights approach in some areas has become an imperative if we want to prevent future Pandemics.

The notion of positive action is relevant also as a basis for enhanced engagement of the state in times of pandemics, because of the population’s special vulnerability in these times. COVID-19 has shown that everyone is affected by pandemics, but the most vulnerable suffers the most.  States are called upon to act ensuring preventively and in reaction to any type of discrimination, that everyone is protected in their basic rights. Vulnerable populations include women, children, the elderly, indigenous populations, ethnic and religious minorities, people with different sexual orientation, essential workers, immigrants , people in detention  This means that states must carry a responsibility before , during and after pandemics.

Needles to say, not all states have the financial resources to affront these burdens. Due to that reason, international cooperation and capacity building become essential

 It may be argued that states have already an obligation to adopt measures already to limit and  avoid  the expansion of a pandemic, including  under current international human rights law. The scope of this obligation to prevent has been extensively discussed during the COVID-19 crisis. This obligation to prevent is grounded on the inherent interest everybody has in preserving a healthy and livable environment. This preventive action is best achieved if done in close consultation and cooperation with civil society, such as medical association, the media, and others.

For the implementation of these preventive measures, states may declare “states of emergency.” International law provides guidance and limitations for the declaration of such states of emergency. During the COVID-19 pandemic, many states declared states of emergency to restrict certain freedoms, such as free movement and the freedom of expression with the aim of preserving the right to life and health of the population. The limits within which states have to act when declaring states of emergency include its temporary nature, the proportionality, and the non-discriminatory nature of the restrictive measures imposed.

Another human rights-related aspect of the international legal framework applicable to pandemics is the need for international cooperation. The COVID-19 crisis has shown that a pandemic has no passport and no nationality. A pandemic is inherently transnational or global in nature. Many responses to a pandemic require the coordinated efforts of all, or a substantial number of states, ideally within the framework of an international organization.

Professor Grossman has approached other colleagues in our community, as well as the International Law Students Association ( ILSA),  for the purpose of follow up international action. Our school’s international expertise, and the motivation and engagement of our students (“ they are the best we offer to the nation and the world” ) bodes well for the development of follow up initiatives in the area of research teaching and service

In summary, Professor Claudio Grossman and the school’s expertise his colleagues provide a long list of international human rights obligations that are key to the international legal regime applicable in times of pandemics. The work of the IIL commission is ongoing and it seems that its work will reveal an extensive set of rules from many sub-sectors of international law applicable in times of pandemics.