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The Pandemic Paradox in International Law

Published online by Cambridge University Press:  20 October 2020

Peter G. Danchin
Affiliation:
Jacob A. France Professor of Law, Director, International and Comparative Law Program, University of Maryland School of Law.
Jeremy Farrall
Affiliation:
Associate Professor, ANU College of Law, Australian National University.
Shruti Rana
Affiliation:
Assistant Dean of Curricular and Undergraduate Affairs, Professor and Director, International Law and Institutions Program, Hamilton Lugar School of Global & International Studies, Indiana University Bloomington.
Imogen Saunders
Affiliation:
Senior Lecturer, ANU College of Law, Australian National University.

Abstract

This Essay examines a series of paradoxes that have rendered the international legal order's mechanisms for collective action powerless precisely when they are needed most to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding noncitizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

Type
The International Legal Order and the Global Pandemic
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 Paulo Giordano, How Contagion Works: Science, Awareness and Community in Times of Global Crises, at ch. 12 (2020).

2 See Danchin, Peter G., Farrall, Jeremy, Ford, Jolyon, Rana, Shruti, Saunders, Imogen & Verhoeven, Daan, Navigating the Backlash Against Global Law and Institutions, 38 Australian Y.B. Int'l L. 33, 3435 (2020)Google Scholar.

3 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 71 (2d ed. 2006).

4 Id.

5 Cohen, Jean L., Whose Sovereignty? Empire Versus International Law, 18 Eth. & Int'l Aff. 1, 2 (2004)Google Scholar.

6 Kennedy, David, Theses About International Law Discourse, 23 German Y.B. Int'l L. 353, 363–64 (1980)Google Scholar (quote is on page 362).

7 Natalia Banulescu-Bogdan, Meghan Benton & Susan Fratzke, Coronavirus Is Spreading Across Borders, But It Is Not a Migration Problem, Migration Pol'y Inst. (Mar. 2020).

8 Wendy E. Parmet, Populations, Public Health and the Law 260 (2009).

9 President Trump, Remarks to the 74th Session of the UN General Assembly, Sept. 24, 2019, at https://www.whitehouse.gov/briefings-statements.

10 UN Secretary-General, Comments to the Security Council at its teleconference on the new agenda item Impact of the COVID-19 Pandemic, Apr. 9, 2020, at https://www.un.org/sg/en/content/sg/speeches/2020-04-09/remarks-security-council-covid-19-pandemic.

11 Id.

12 UN Charter, Art. 24.

13 Director-General of the World Health Organization, Declaration at the Second Meeting of the International Health Regulations (2005) Emergency Committee Regarding Novel Coronavirus, Jan. 30, 2020, at https://www.who.int/dg/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov).

14 UN Security Council, VTCs of the Security Council Members and Outcomes During the COVID-19 Pandemic, at https://www.un.org/securitycouncil/content/meetings-2020-vtc.

16 UN Secretary-General, Appeal for Global Ceasefire, Mar. 23, 2020, at https://www.un.org/sg/en/content/sg/speeches.

17 Security Council President, supra note 15. Three months later the Council finally adopted a resolution demanding a cessation of hostilities in all situations on its agenda: SC Res. 2352 (July 1, 2020).

18 UN Charter, Arts. 23, 27.

19 See Farrall, Jeremy, Loiselle, Marie-Eve, Michaelsen, Christopher, Prantl, Jochen & Whalan, Jeni, Elected Member Influence in the UN Security Council, 33 Leiden J. Int'l L. 101 (2020)CrossRefGoogle Scholar.

20 Security Council Report, International Peace and Security, and Pandemics: Security Council Precedents and Options (Apr. 5, 2020), available at https://www.whatsinblue.org/2020/04/international-peace-and-security-and-the-covid-19-pandemic-security-council-precedents-and-options.php.

21 Anna Fifield, Chinese Foreign Minister Warns U.S. Against Taking the Countries “to the Brink of a New Cold War, Wash. Post (May 24, 2020), at https://www.washingtonpost.com/world/asia_pacific/china-tells-us-to-stop-taking-them-to-the-brink-of-a-new-cold-war/2020/05/24/4eda6ffc-9da9-11ea-9d96-c3f7c755fd6e_story.html.

22 See Johns Hopkins University Coronavirus Resource Center, COVID-19 Dashboard, at https://coronavirus.jhu.edu/map.html.

23 Kirby, Michael, Multilateralism, Pushback and Adjustment: From the UN Charter to COVID-19, 35 Md. J. Int'l L. 101 (forthcoming 2020)Google Scholar.

24 Khan, Daniel-Erasmus, Territory and Boundaries, in Oxford Handbook Of The History Of International Law 225, 229 (Fassbender, Bardo & Peters, Anne eds., 2012)Google Scholar.

25 Thirlway, Hugh, Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice, 31 Leiden J. Int'l L. 117, 117 (2018)CrossRefGoogle Scholar.

26 Montevideo Convention, Art. 1, 165 LNTS 19.

27 Newman, David, Territory, Compartments and Borders: Avoiding the Trap of the Territorial Trap, 15 Geopolitics 773, 773 (2010)CrossRefGoogle Scholar.

28 And as set out in Part III, this is facilitated by domestic leaders unwilling to take action to enforce such measures.

29 This also impacts on the effectiveness of border measures internationally. See Chinazzi, Matteo, Davis, Jessica T., Ajelli, Marco, Gioannini, Corrado, Litvinova, Maria & Merler, Stefano, The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak, 368 (6489) Science 395 (2020)Google ScholarPubMed.

30 See Jane Feinmann, PPE: What Now for the Global Supply Chain?, BMJ, 369:m1910 (2020).

31 Id.

32 Although the impact of NAFTA is much more complicated. See Gamso, Jonas & Grosse, Robert, NAFTA 2.0: What Should Be Next?, 40 Harv. Int'l Rev. 30 (2019)Google Scholar.

33 Baldini, Gianfranco, Bressanelli, Edoardo & Gianfreda, Stella, Taking Back Control? Brexit, Sovereignism and Populism in Westminster (2015–17), 21 Eur. Pol. & Soc'y 219, 220 (2019)Google Scholar.

34 Lorenzo Tondo, Salvini Attacks Italy PM Over Coronavirus and Links to Rescue Ship, Guardian (Feb. 24, 2020), at https://www.theguardian.com/world/2020/feb/24/salvini-attacks-italy-pm-over-coronavirus-and-links-to-rescue-ship.

35 See Bank, Asian Development, Global Shortage of Personal Protective Equipment amid COVID-19: Supply Chains, Bottlenecks, and Policy Implications, 130 ADB Briefs (2020)Google Scholar.

36 Anthea Roberts & Nicolas Lamp, Is the Virus Killing Globalization? There's No One Answer, Barron's (Mar. 15, 2020), at https://www.barrons.com/articles/is-the-virus-killing-globalization-theres-no-one-answer-51584209741.

37 Danchin, et al., supra note 2, 39–40.

38 See CEDAW General Recommendation No. 19: Violence Against Women (1992).

39 Shruti Rana, COVID-19's Gendered Fault Lines and Their Implications for International Law, ANU College L. (June 24, 2020), at https://law.anu.edu.au/research/essay/covid-19-and-international-law/covid-19%E2%80%99s-gendered-fault-lines-and-their-implications.

40 Id.

41 What's Really Behind the Gender Gap in COVID-19 Deaths? When in Doubt, Look to Social Factors First, Not Biology, N.Y. Times (June 24, 2020), at https://www.nytimes.com/2020/06/24/opinion/sex-differences-covid.html.

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