Governments around the world are taking unprecedented measures in the name of public health regulation, to confront the COVID-19 pandemic. This State regulation affects actors from all around the world, including other States, international organisations, private entities and individuals. This conflicting dynamic is presenting challenges to the international rule of law and raising extremely complex legal issues.
The key legal instrument regulating the “international spread of disease” is the International Health Regulations (2005) (the “IHR”). The IHR have a role to play in global, regional and national responses to the COVID-19 pandemic. But the IHR were not designed, nor are they able to provide by themselves, an answer to the totality of inter-State cooperation and conflict-resolution required to address this pandemic’s wide-ranging consequences. The IHR must be interpreted and applied alongside a wide variety of customary international law principles and international legal instruments, including immigration, refugee, national security, economic cooperation, trade, investment and industry-specific treaties.
Drastic public health regulations put into place by one government may dramatically harm the society and economy of another country. Different levels of wealth and capacity amongst States mean that different governments will likely need different public health responses to the same pandemic issues.
States, international organisations, private entities and individuals need clarity on the content and limits of the public health regulation measures that international law both requires and allows States to take. For example, clearly defined parameters will be key for international organisations to fulfil their mandates in this supranational crisis. And foreign investors will need to know the level of protection they enjoy under international law against any unjustified injury resulting from public health measures. Importantly, fundamental human rights norms and freedoms are being challenged by increasing surveillance of individuals and groups by governments, including through exceptional (and temporary?) public health regulation measures.
These issues raise important questions about the relevance and even the survival of the modern system of rules-based international relations and the public international law on which it is founded.
This seminar provided an opportunity to discuss some of these issues. Our experienced panellists were:
Álvaro Nistal, Counsel at Volterra Fietta. Mr Nistal provided an overview of the most relevant provisions of the IHR and of the obligations they impose on their States Party in the context of the current COVID-19 pandemic. He also analysed the IHR’s dispute resolution mechanisms and the interrelation between that key legal instrument and other applicable international law obligations. A civil and common law lawyer, Mr Nistal advises States, international organisations and private entities on a wide range of public international law matters. He has represented and provided States in Africa, Latin America, the Middle East and Southeast Asia with legal advice in relation to proceedings before the International Court of Justice. He also regularly represents States and foreign investors in major investment treaty arbitrations.
Nancy M. Dale, PhD, MPH, Research Fellow in the Centre for Global Child Health at the Hospital for Sick Children in Toronto, Canada. Dr Dale discussed the realities of public health challenges in resource-poor settings of low-income States in the context of the COVID-19 pandemic. Her research focus explores early identification and management of high-risk children in low-income countries through collaborations with non-governmental organisations and the WHO. Dr Dale is also a trained paediatric critical care nurse and has extensive field experience managing emergency programmes in sub-Saharan Africa with Médecins Sans Frontières.
Robert Volterra, Partner at Volterra Fietta and visiting professor of law at University College London. Mr Volterra talked about the complex web of issues that engage State Responsibility and the COVID-19 pandemic. Mr Volterra advises and represents governments, international organisations and private clients on a wide range of public international law issues. He regularly acts as co-agent, counsel and advocate before the International Court of Justice and ad hoc international arbitration tribunals, including under the Permanent Court of Arbitration, ICSID, ICC, SCC, LCIA, UNCITRAL, WTO and UNCLOS rules. He is on the UK Attorney General’s A-list for public international law practitioners.
Peter Flint, Consultant at Volterra Fietta. Mr Flint talked about the force majeure defence in the context of the COVID-19 pandemic. Mr Flint advises governments and commercial parties in connection with cross-border disputes in a wide range of jurisdictions, including Russia and the CIS, the Baltic States, Turkey, Lebanon, India, Pakistan, the Middle East, South America, Thailand, Indonesia, China, South Korea and a number of sub-Saharan African States. He has advised clients on disputes arising in the context of cross-border contracts, BITs, the ECT, multilateral trade agreements and host State investment protection legislation. This includes significant experience in representing both investors and States at ICSID, the PCA and elsewhere.
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