Covid-19: Just Disastrous or the Disaster Itself? Applying the ILC Articles on the Protection of Persons in the Event of Disasters to the Covid-19 Outbreak

As of April 18, 2020, Covid-19, designated as a pandemic by the World Health Organization (WHO), infected more than 2 million persons.[1] This dramatic increase in the number of cases since the first reported case on December 31, 2019, sparked a range of responses from various public and private actors. Since international cooperation is vitally important to control the outbreak and to help countries manage the increasing number of cases, the international community has quickly mobilized to provide monetary and technical assistance to the countries affected by Covid-19. 

The UN International Law Commission's (ILC) Articles on the Protection of Persons in the Event of Disasters (ILC Articles) provide a framework of rights and responsibilities during disasters. However, the ILC Articles appear to have significant shortcomings in the context of pandemics. The first section of this Insight explains the legal significance of the ILC Articles and the definition of disaster. The second section delves into the potential responsibilities of affected states to notify the international community of a pandemic. The final section deals with the potential duty of states not to impede relief efforts. 

I. Legal Significance of the ILC's Articles for Covid-19

In 2016, the ILC adopted the draft Articles, and submitted them with commentaries to the UN General Assembly with a recommendation for the elaboration of a convention based on the draft Articles.[2] The ILC holds a key role in the understanding and development of international law. It regularly undertakes to formalize international law on specific issues into such draft articles, which states may then use as a draft treaty text in negotiations. Courts may also find that an ILC draft or part thereof reflects customary international law. The General Assembly took note of the Articles on the Protection of Persons in the Event of Disasters and called upon member states to comment on a potential convention based on the ILC Articles.[3]

The ILC Articles set forth rules pertaining both to disaster response activities, which are typically post-disaster measures, and to risk reduction efforts, which include prevention, mitigation, and preparation. ILC Articles provide a two-dimensional normative landscape.[4] One set of rules regulates the relationship among disaster-affected governments, assisting governments, intergovernmental organizations, and nongovernmental organizations and actors (horizontal function).[5] Another set of rules involves individual rights of people affected by a disaster (vertical function).[6]

Article 3 defines "disaster" as:

1. a calamitous event or series of events,
2. resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, and 
3. causing serious disruption of the functioning of society.

The ILC articles and commentaries do not reference pandemics, resulting in uncertainty as to whether they are included in the coverage of the Articles. In one instance, the Austrian Government questioned the potential exclusion of epidemics and pandemics from the scope of the draft Articles because of the uncertain causal link between an outbreak and a traceable calamitous event.[7] In response, The Special Rapporteur emphasized the broadness of the definition and stated that, when analyzing a potential disaster, the emphasis is on the consequence, but not on the characterization of an event.[8]

The broadness of the definition was repeatedly emphasized during the drafting process. Some events are clearly excluded, such as purely economic losses from the collapse of stock markets and other financial shocks.[9] In the commentaries, the ILC Articles acknowledge that a calamitous event is not necessarily a sudden event, but it also includes slow onset events, such as droughts. Furthermore, the definition includes human-caused disasters as well as natural disasters. Finally, an important international actor in the field of disaster law, the International Federation of Red Cross and Red Crescent (IFRC), has previously regarded the outbreak of a disease (HIV) as falling within the definition of a disaster.[10]

The broad definition, and its interpretation by some actors as including the outbreak of disease, suggests that the outbreak of Covid-19 may be considered as a disaster. The current pandemic consists of a series of calamitous events, resulting in the death and harm of many people and causing great human suffering and distress, thereby resulting in serious disruption of the societies' functioning, with the cancellation of gatherings, closure of non-essential businesses, shift to online education, and curfew measures. 

II. Duty to Notify

Under the ILC Articles, the affected state and assisting actors have the duty to cooperate, which includes cooperation with intergovernmental organizations.[11] The affected state has the primary role in this cooperation.[12] Types of cooperation listed by the ILC Articles include "humanitarian assistance, coordination of international relief actions and communications, and making available relief personnel, equipment and goods, and scientific, medical and technical resources." [13] Indeed, effective sharing of information and technical resources is particularly important for the containment of the Covid-19 pandemic.

However, the ILC Articles do not explicitly provide an obligation to notify other states of an outbreak. The commentaries to the ILC Articles emphasize that the types of cooperation listed in Article 8 do not create an additional obligation on affected and assisting states.[14] Therefore, "coordination of international relief actions and communications" cannot be considered as a separate duty of notification. The commentaries, however, acknowledge that cooperation may occur in the context of an existing obligation, as illustrated by the duty to notify in the Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted in 2001.[15]

Particularly in the case of pandemics, the early notification can prevent the unrestricted movement of the infectious disease. Several countries have been criticized for their delay in informing the international community about the Covid-19 cases on their territory, which resulted in the delays in much necessary measures.[16] The ILC Articles position on the duty to notify may still be insufficient in this respect. 

III. Duty Not to Impede Relief Efforts

The ILC Articles do not prescribe any duty to provide assistance because there is no clear existing international obligation to do so; it would also be impracticable to oblige states to provide assistance given the differences in their capacities to help.[17] However, it is unclear whether the ILC Articles foresee a duty not to impede relief efforts to provide such assistance.             

This is particularly relevant in the context of the U.S.-led multilateral sanctions against Iran.[18] The sanctions have serious effects on the ability of Iran to respond to the Covid-19 crisis in the country.[19] Restrictions on financial transactions and flights to Iran limit the transfer of donations and medical equipment.[20] For instance, the WHO faced delays in providing testing equipment due to flight restrictions.[21] A potential duty not to impede might require the U.S. and the international community to ease its sanctions against Iran and reassure international community about their humanitarian transactions with the country. 

The Articles place the primary responsibility to provide assistance on the affected state.[22] They also require the affected state to seek external assistance when the disaster exceeds its national capacity[23] and prevent affected states from arbitrarily withholding consent to external assistance[24]. 

However, the ILC Articles do not prescribe a duty not to impede relief efforts for non-assisting actors. The Special Rapporteur stressed the voluntary nature of external assistance and that the duty of a State to cooperate does not create a positive obligation to assist.[25] The ILC adopted this approach in its commentaries, emphasizing the absence "of a legal duty to assist."[26] Therefore, it would be difficult to infer a duty not to impede relief efforts from the duty to cooperate. 

With respect to the protection of persons, the ILC Articles incorporate the existing framework of international human rights and do not prescribe additional human rights obligations. Article 5 states that "persons affected by disasters are entitled to the respect for and protection of their human rights in accordance with international law." This provision does not specify who bears the responsibility to respect and protect human rights. The provision may therefore also cover non-assisting actors. However, the commentaries only discuss the obligations of assisting actors and affected states, and do not elaborate on the potential responsibility of non-assisting actors not to impede disaster relief efforts. Additionally, the commentaries specify that the phrase "in accordance with international law" incorporates rights and limitations in international human rights law.[27] Therefore, unless a duty not to impede relief efforts exists in international human rights law, the ILC Articles do not prescribe such a supplementary duty. 

In sum, in their current form, the ILC Articles do not involve a duty not to impede relief efforts. However, given the importance of cooperation and external assistance during disaster response, this duty would be a viable option for the future framework of international disaster law. Impediments to relief efforts not only endanger human life in the state targeted by sanctions or other restrictions, but also increase the risk of spreading Covid-19 to other states.  

Conclusion

Governments, international organizations and NGOs are engaged in an extraordinary effort to prevent the spread of Covid-19 and treat patients, and the ILC Articles provide a useful framework for the global response. The ILC Articles regulate the relationship between states and assisting actors and put an emphasis on human rights of individuals affected by disasters. By applying the Articles to the Covid-19 crisis, this Insight identifies the shortcomings of the Articles, including the apparent lack of the duty to notify the international community of health hazards and the duty not to impede relief efforts. The rules developing in this field are promising, but all actors dealing with international pandemics must play an important role in furthering this framework.

About the Author: Alp Ozturk had his legal training in Turkey, Spain, and the US. He graduated from the LL.M. in International Legal Studies program at New York University School of Law. As an International Finance and Development Fellow of NYU, he recently worked as a consultant at the World Bank Legal Vice-Presidency.