The Right to International Solidarity and Humanitarian Assistance in the Era of covid-19 Pandemic

In: Journal of International Humanitarian Legal Studies
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  • 1 Department of Public & International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Assistant Professor of International Law, Tehran, Iran
  • 2 Department of Public & International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, LLM, Tehran, Iran

Abstract

From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.

Abstract

From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.

1 Introduction

The outbreak of covid-19 and the rapid spread of the disease around the world has made, more than any other time in the history of the United Nations (‘UN’), the term ‘solidarity’ the keyword of the UN officials’ statements. António Guterres, the UN Secretary-General, in his several covid-19 related messages and remarks has highlighted global solidarity as a must in everyone’s interest.1 Michelle Bachelet, the UN High Commissioner for Human Rights, echoing the call by Guterres for coordinated, decisive, and innovative policy action to counter the spread of covid-19, stating that: ‘no country can effectively combat this epidemic on its own. We need to act with solidarity, cooperation and care’.2 Obiora Okafor, the UN Human Rights Council Independent Expert on human rights and international solidarity, has urged State and non-State actors to ‘take international solidarity much more seriously in the struggle to optimally realize all human rights around the world’.3 Moreover, the UN General Assembly (‘UNGA’) in its Resolution on the ‘Global Solidarity to Fight the Coronavirus Disease 2019 (‘covid-19’)’ recognized that this pandemic ‘requires a global response based on unity, solidarity and renewed multilateral cooperation’.4 The Security Council, with reference to this important Resolution of the General Assembly, has underlined that ‘combating this pandemic requires greater national, regional and international cooperation and solidarity’.5

But what does ‘solidarity’ mean, and how can it be implemented during this pandemic from an international legal perspective? To find a proper answer to this question, this brief paper in the first section with a focus on the International Law Commission’s (‘ilc’) Draft Articles on the Protection of Persons in the Event of Disasters (‘Draft Articles’), argues that the coronavirus outbreak has to be qualified as a ‘disaster’. The article then sheds some light on the mysterious concept of solidarity to determine its meaning and implications in the event of disasters from an international law perspective. In the third section, we underline the relationship between international solidarity as a human right and the right to humanitarian assistance as enshrined in the work of the ilc. The paper argues that the contextualization of international solidarity within the international legal system goes beyond a pure theoretical academic discussion. As argued in this paper, solidarity as a human right, results in more concrete actions including humanitarian assistance and international cooperation, in soothing and rectifying global challenges.

2 covid-19 Pandemic as a Disaster

Back in 2007, the ilc started working on the topic of protection of persons in the event of disasters, from which the Draft Articles emerged.6 The Draft Articles, at least partially, reflect international law as it stands,7 i.e., they illustrate customary international law. As these provisions are designed to be applicable in times of disasters, it is of utmost importance to clarify, first, the legal definition of the term ‘disaster’, and whether the current covid-19 outbreak qualifies as such. Draft Article 3(a) defines disaster as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’.8

The ilc definition does not demand that the event overwhelm a society’s response capacity. The focus on the disruption of society serves to distinguish a disaster from mere economic or political crises, or events which occur without affecting a society such as an earthquake in the middle of an ocean with no impact on human populations. The term ‘calamitous’ here serves to establish a threshold, by reference to the nature of the event, whereby only extreme events are covered.9 This should be read in light of the phrase ‘event or series of events’, which aims ‘to cover those types of events, such as frequent small-scale disasters, that, on their own, might not meet the necessary threshold, but that, taken together would constitute a calamitous event for the purposes of the draft articles.’10 Furthermore, no limitation is included concerning the origin of the event, i.e., whether it is natural or human-made, in recognition of the fact that disasters often arise from complex sets of causes that may include both wholly natural elements and contributions from human activities.11Whether the disaster in question should have a trans-boundary effect or, in other words, be international in its scope, has also been addressed. Accordingly, ‘where an event has resulted in a relatively localized loss of life, owing to adequate prevention and preparation, as well as effective mitigation actions, but nonetheless has caused severe dislocation resulting in great human suffering and distress that seriously disrupt the functioning of society, would be covered by the Draft Articles.’12

Having briefly touched upon the definition of disaster, the next step would be to analyze whether the current covid-19 pandemic falls within the scope of the above definition. This is not merely a legal question, but rather calls for adherence to the reports and analyses given by expert bodies such as the World Health Organization (‘who’). Diseases were not of much clear concern during the proceedings leading to the adoption of the Draft Articles. However, the International Federation of Red Cross and Red Crescent Societies (‘ifrc’) held the position that great human suffering and distress might also be occasioned by, inter alia, disease or other health problems, which fall under the umbrella term ‘disaster’.13 The ilc commentary has adopted this view.14

The who and the unga have designated the covid-19 outbreak as a pandemic, till now infecting more than 40 million people with more than 1.1 million deaths globally.15 The broad definition of disaster, and its interpretation by some scholars as well as humanitarian actors as including the outbreak of disease, suggests that the outbreak of covid-19 should be considered as a disaster in terms of the Draft Articles.16 This view is consistent with other historical incidents of pandemic, which, upon analysis, can and are construed as disasters or deemed disastrous.17

3 International Solidarity as a Right

In 1977, the unesco Courier published an article written by Karel Vasak, the then-Director of unesco’s Division of Human Rights and Peace, where he categorized human rights in three generations. These were civil and political rights as the first; social, economic and cultural rights as the second; and ‘the rights of solidarity’ as the third generation of human rights. In Vasak’s words, solidarity was seen as a reflection of ‘certain conception of community life’ which can only be implemented by the ‘combined efforts of everyone’.18 As discussed by some commentators, this kind of categorization of international human rights law through historical generations is not accurate.19 Yet, his emphasis on the substantial difference between the solidarity rights and other human rights as enshrined in the two 1966 International Covenants20 has to be seen as the beginning of a long journey from his time to the current covid-19 disaster, when the Draft Declaration on the Right to International Solidarity (‘Draft Declaration’), as suggested by Virginia Dandan, the former UN independent expert on international solidarity,21 is still waiting for further attention from States.22 This is despite the fact that Okafor trusts that the right to international solidarity exists in State practice and opinio juris 23 and the UN Member States have recently recognized that ‘the covid-19 global pandemic requires a global response based on unity, solidarity and multilateral cooperation’.24

Article 28 of the Universal Declaration of Human Rights stipulates that ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’25 Along the same line, the Draft Declaration describes the right to international solidarity as a human right ‘by which individuals and peoples are entitled, on the basis of equality and non-discrimination, to participate meaningfully in, contribute to, and enjoy a social and international order in which all human rights and fundamental freedoms can be fully realized’.26 The right to international solidarity imposes no extra duty on States, but requires them to prepare the ground for fulfillment of all human rights which is to be done through ‘preventing and removing the causes of asymmetries and inequities between and within States, and the structural obstacles and factors that generate and perpetuate poverty and inequality worldwide’.27 ‘Solidarity rights’, as introduced by Vasak, were referring to a third group of rights including the right to development with a different group of rights holders, i.e., communities. However, the right to international solidarity, as described in the Draft Declaration, is mainly a distinct human right for both individuals and peoples within or beyond their territories to claim international solidarity.28

On this basis, the Draft Declaration, with reference to the UN Charter and the unga Resolution 2625 (xxv) concerning Friendly Relations and Cooperation among States, calls upon States to take a ‘human rights-based approach to international cooperation and all partnerships in responding to global challenges’.29 The Draft Declaration obliges States to ‘co-operate with one another … in order to … promote international economic stability and progress, the general welfare of nations and international cooperation free from discrimination based on such differences.’30 It defines international solidarity as a ‘foundational principle underpinning contemporary international law in order to preserve the international order and to ensure the survival of international society.’31 International solidarity consists of (i) preventive solidarity, which, inter alia, requires that ‘States fully respect and comply with their obligations under international law’,32 (ii) reactive solidarity, which is characterized by ‘collective actions of the international community to respond to the adverse impacts of natural disasters, health emergencies, epidemic diseases and armed conflict’,33 and (iii) international cooperation, which is based on the fact that some States may not have enough resources or capacity to realize all human rights, and States in a position to do so, acting separately or jointly, ‘should provide international assistance’.34

Difficulties arising from the covid-19 pandemic have demonstrated that the abovementioned pillars of international solidarity and, especially, international cooperation in terms of humanitarian assistance are at risk and consequently, the right to international solidarity is facing serious practical and legal challenges. As Guterres said, it seems that ‘while we are all floating on the same sea, it’s clear that some are in super yachts, while others are clinging to the drifting debris’.35

In the next section, the paper examines the capacity of the ilc Draft Articles  to trigger the fulfillment of the right to international solidarity in a time of disaster such as the current pandemic.

4 Solidarity in the ilc Draft Articles on the Protection of Persons in the Event of Disasters

The ilc Draft Articles provide a relatively comprehensive set of legal obligations that guide the behavior of States and other international stakeholders in times of disaster. As identified by some scholars, the Draft consists of vertical duties (owed to victims of disasters) and horizontal obligations (regarding cooperation among affected States and assisting actors) in the rights-duties perspectives.36

Draft Article 10(2) states that the State affected by disaster has the primary role in the direction, control, coordination, and supervision of relief assistance. On the other hand, under Draft Article 7, States bear the duty to cooperate among themselves, with the UN, and other assisting actors, including the components of the Red Cross and Red Crescent Movement. Under Draft Article 8, however, the ilc enumerates cooperation in the context of responses to disaster, meaning that States, which must provide humanitarian assistance to the population in the territory under their jurisdiction or control under Draft Article 10(1) if impacted by a disaster, must resort to cooperation with the relevant stakeholders. This is an echo of the general obligation to cooperate in Draft Article 8.37 In contrast to the situations of armed conflict, whether the right to humanitarian assistance during peacetime in the event of disaster has stepped into the domain of hard-law is still open to debate.38 Nevertheless, humanitarian assistance is intentionally placed first among the forms of cooperation mentioned in Draft Article 8, as the Commission considers this type of cooperation of paramount importance in the context of disaster relief.39

Adding to the affected State’s duty to cooperate in the event of a disaster, which entails that it must seek external assistance if the disaster ‘manifestly exceeds its national response capacity’, the affected State, once it has given its consent to external assistance, shall not withhold its consent arbitrarily.40 That is to say, such a State should refrain from obstructing humanitarian assistance without justification.41 This must be read in conjunction with Draft Article 12 which notes in its first paragraph that States, the UN, and other potential assisting actors may offer assistance to the affected State, continuing in the second paragraph that these actors shall expeditiously consider the request and inform the affected State of their reply. The ilc notes that ‘[draft article 12] is an expression of the principles of solidarity and cooperation, highlighted in the preamble, … the latter principle being specifically embodied in draft articles 7 to 9’, and the ‘verb “may” in paragraph 1 is intended to emphasize that, in the context of offers of external assistance, what matters is the possibility open to all potential assisting actors to make an offer of assistance, regardless of their status and the legal grounds on which they can base their action’.42 The principle of solidarity embodied in these provisions, including under Draft Articles 4, 5, 6, and 7, and the Preamble, indicates that this principle is virtually in the domain of lex lata. This view is confirmed by several members of the ilc, including Nolte and Saboia, who took the view that the horizontal rights-duties approach was an accurate reflection of the current law.43

In this way, the ilc has legally systematized international solidarity.44 Bearing this in mind, it is safe to assert that the principle of solidarity, as a foundational basis of the Draft Articles, calls upon all States and other assisting actors to offer their humanitarian assistance to those developing and less-developed States which are more affected by the coronavirus. As already pointed out by some scholars and indicated in the UN reports, the Global South has been and will be affected most by the pandemic, with socio-economic impacts being the most notable form of damage.45 This fact supports the position that international solidarity must play a yet more significant role in tackling this disaster.

5 Conclusion

As noted by Nelson Mandela, ‘one of the challenges of our time … is to re-instill in the consciousness of our people that sense of human solidarity, of being in the world for one another and because of and through others’. The UN Secretary-General quoting this statement said: ‘the covid-19 pandemic has reinforced this message more strongly than ever. We belong to each other. We stand together, or we fall apart’.46

This is also confirmed by the latest Resolution of the UN Human Rights Council on the right to international solidarity, extending the mandate of the independent expert for a period of three years, which emphasizes that

international solidarity is not limited to international assistance and cooperation, aid, charity or humanitarian assistance; it is a broader concept and principle that includes sustainability in international relations, especially international economic relations, the peaceful coexistence of all members of the international community, equal partnerships and the equitable sharing of benefits and burdens.47

This Resolution, while expressing concern at the lack of sufficient solidarity with developing countries in responding to the coronavirus pandemic and in addressing its dramatic economic and social impact, emphasizes on the importance of international solidarity and cooperation for effectively addressing the challenges of the current global crisis owing to the covid-19 pandemic.48

The occurrence of a disaster such as the current outbreak of the coronavirus, which is severely affecting the life and wellbeing of many individuals, especially those who live in less-developed countries, calls for solidarity in terms of a swift and coordinated humanitarian assistance from the international community. Therefore, solidarity is defined as the unity to preserve the interests of the international community, including the international legal order based on multilateralism and humanity as enshrined in international instruments such as the Draft Resolution on International Solidarity and the ilc Draft Articles. This article, with providing an insight on the merits of these two pending documents, reiterates that international solidarity, as a human right, is a foundational principle underpinning contemporary international law.

1

‘Secretary-General’s Opening Remarks at Virtual Press Encounter on covid-19 Crisis’ (UN Headquarters, 19 March 2020) <www.un.org/sg/en/content/sg/speeches/2020-03-19/remarks-virtual-press-encounter-covid-19-crisis>.

2

‘Bachelet Calls for Easing of Sanctions to Enable Medical Systems to Fight covid-19 and Limit Global Contagion’ (UN in Iran, 26 March 2020) <un.org.ir/en/news-page/global-un/item/6339-bachelet-calls-for-easing-of-sanctions-to-enable-medical-systems-to-fight-covid-19-and-limit-global-contagion.html>.

3

‘UN Expert Urges Adoption of Draft Declaration on International Solidarity’ (UN Geneva, 6 May 2020) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25866&LangID=E>; Obiora C Okafor, ‘Solidarity Key to Post covid-19 Response’ (OpenGlobalRights, 28 April 2020) <www.openglobalrights.org/solidarity-key-to-post-covid-19-response/>.

4

unga Res 74/270 (3 April 2020) UN Doc A/res/74/270.

5

unsc Res 2532 (1 July 2020) UN Doc S/res/2532.

6

ilc, ‘Report of the International Law Commission on the Work of its 68th Session’ (2 May–10 June and 4 July–12 August 2016) UN Doc A/71/10, Chapter iv.

7

Dire Tladi, ‘The International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters: Codification, Progressive Development or Creation of Law from Thin Air?’ (2017) 16(3) Chinese Journal of International Law 425, 426.

8

ilc (n 6) draft art 3(a) (emphasis added).

9

ibid draft art 3(a), commentary [4].

10

ibid.

11

ibid.

12

ibid [7].

13

unga ‘Protection of Persons in the event of Disasters – Comments and Observations received from Governments and International Organizations’ (14 March 2016) UN Doc A/cn.4/696, 17. See also: ifrc, ‘Annotations to the Draft Guidelines for the Domestic ­Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (October 26, 2007).

14

ilc (n 6) draft art 3(a), commentary [7]. This view was reaffirmed by the Sendai Framework for Disaster Risk Reduction, adopted at the Third UN World Conference in Sendai, Japan, 18 March 2015. See Amina Aitsi-Selmi and others, ‘The Sendai Framework for Disaster Risk Reduction: Renewing the Global Commitment to People’s Resilience, Health, and Well-being’ (2015) 6 International Journal of Disaster Risk Science 171. In contrast, Austria, at least on one occasion, expressed doubt whether diseases would fall under the scope of disaster. See: unga, ‘Eighth report on the protection of persons in the event of disasters by Eduardo Valencia-Ospina, Special Rapporteur’ (17 March 2016) UN Doc A/cn.4697, [57].

15

who, ‘Weekly Epidemiological Update: Coronavirus disease 2019 (covid-19)’ (20 October 2020) <www.who.int/docs/default-source/coronaviruse/situation-reports/20201020-weekly-epi-update-10.pdf>; unga Res 74/274 (21 April 2020) UN Doc A/res/74/274, Preamble.

16

Alp Ozturk, ‘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’ (asil Insights, 24 April 2020) <www.asil.org/insights/volume/24/issue/6/covid-19-just-disastrous-or-disaster-itself-applying-ilc-articles>; United Nations Office for Disaster Risk Reduction (undrr) also, as it appears, deems covid-19 as a disaster, and has also determined previous pandemics to be severe and disastrous in their impact and scope. See generally ­undrr, ‘Global Assessment Report on Disaster Risk Reduction’ (2019). Since undrr is an expert body on such matters, its qualification of the situation as a disaster should be noted convincingly. See undrr, ‘Prevention Saves Lives’ <www.undrr.org/drr-and-covid-19> accessed 26 July 2020.

17

Cédric Cotter, ‘From the ‘Spanish Flu’ to covid-19: lessons from the 1918 pandemic and First World War’ (Humanitarian Law & Policy, 23 April 2020) <blogs.icrc.org/law-and-­policy/2020/04/23/spanish-flu-covid-19-1918-pandemic-first-world-war/>.

18

Karel Vasak, ‘A 30-Year Struggle’ The unesco Courier (1977) 32.

19

See for example: Patrick Macklem, ‘Human rights in international law: three generations or one?’(2015) 3 London Review of International Law 1, 62; Dustin N Sharp, ‘Re-Appraising the Significance of ‘Third-Generation’ Rights in a Globalized World’ in Ekaterina Yahyaoui Krivenko (ed), Human Rights and Power in Times of Globalisation (Brill 2017).

20

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 (iccpr) and International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 unts 3 (icescr).

21

UN Human Rights Council ‘Report of the Independent Expert on Human Rights and ­International Solidarity’ (25 April 2017) UN Doc A/hrc/35/35, 15–20.

22

Okafor (n 3).

23

UN Human Rights Council ‘Report of the Independent Expert on Human Rights and ­International Solidarity’ (11 April 2018) UN Doc A/hrc/38/40, 5.

24

unga (n 15).

25

Universal Declaration of Human Rights (adopted 10 December 1948) unga Res 217 A(iii) (udhr) art 5.

26

UN Human Rights Council (n 21) draft art 4(1).

27

ibid draft art 3(a).

28

ibid draft art 5.

29

ibid draft art 9(1).

30

Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (adopted 24 October 1970) unga Res 2625 (xxv) UN Doc A/res/2625 (xxv).

31

UN Human Rights Council (n 20) draft art 1(2).

32

ibid draft art 2(a).

33

ibid draft art 2(b).

34

ibid draft art 2(c).

35

‘Inequality Defines our Time: UN Chief Delivers Hard-Hitting Mandela Day Message’ (UN News, 18 July 2020) <news.un.org/en/story/2020/07/1068611>.

36

Tladi (n 7) 429–430.

37

ilc (n 6) draft art 8.

38

This question is, however, virtually clear with respect to a number of other domains of international law. For instance, the right to humanitarian assistance for Internally Displaces Persons, which relates to international human rights law, is recognized as a State obligation under the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, known as Kampala Convention, under art 5(1). The same is true about international humanitarian law, under which humanitarian assistance is remarkably stipulated and recognized. See: Ruth Abril Stoffels, ‘Legal Regulation of ­Humanitarian Assistance in Armed Conflict: Achievements and Gaps’ (2004) 86(855) ­International Review of the Red Cross 515.

39

Giulio Bartolini, ‘The Draft Articles on “The Protection of Persons in the Event of ­Disasters”: Towards a Flagship Treaty?’ (ejil:Talk!, 2 December 2016) <www.ejiltalk.org/the-draft-articles-on-the-protection-of-persons-in-the-event-of-disasters-towards-a-­flagship-treaty/>. See also: Inter-American Convention to Facilitate Disaster Assistance (adopted on 7 June 1991, entered into force 16 October 1996) art iv (iacfda).

40

Georg Nolte, ‘The International Law Commission and Community Interests’ (2017) 7 kfg Working Paper Series, 115.

41

See the Preambles to unga Res 43/131 (1988) and 45/100 (1990).

42

ilc (n 6) draft art 12, commentary [1] and [6].

43

ilc, ‘Summary Records’ (Meeting of 5 July 2012) UN Doc A/cn.4/sr.3141, 5 (Nolte) (The approach ‘was the minimum that should be respected by States, which had the human rights-based obligation to protect life and physical integrity and provide for the basic nutritional needs of the population.’); ilc, ‘Summary Records’ (Meeting of 4 July 2012) UN Doc A/cn.4/sr.3140 (Saboia) (‘Persons affected by disasters were quite likely to be subjected to treatment that affected their rights and their dignity …. Of course, it did not necessarily follow that the affected State … was to blame for all the human suffering endured by its population; nevertheless, there was certainly justification for bearing human rights in mind ….’).

44

Thérèse O’Donnell and Craig Allan, ‘Identifying Solidarity: the ilc Project on the Protection of Persons in Disasters and Human Rights’ (2017) 49 George Washington International Law Review 1, 59.

45

For a brief review of the challenges which the Global South is facing in the pandemic, see Eden Lapidor, ‘Out of the Spotlight: covid-19 and the Global South’ (Just Security, 23 July 2020) <www.justsecurity.org/71570/out-of-the-spotlight-covid-19-and-the-global-south/>. The UN also confirms such assertions, according to which, for instance, Foreign Direct Investment is expected to decline by up to 40% in 2020 which undoubtedly would hit the Global South the hardest. See ‘Sustainable Development Goal 17 Infographic’ (UN Sustainable Development, 2020) <sdgs.un.org/goals/goal17> accessed 1 August 2020.

46

‘Secretary-General’s Nelson Mandela Lecture: Tackling the Inequality Pandemic: A New Social Contract for a New Era’ (UN Headquarters, 18 July 2020) <www.un.org/sg/en/­content/sg/statement/2020-07-18/secretary-generals-nelson-mandela-lecture-%E2%80%9Ctackling-the-inequality-pandemic-new-social-contract-for-new-era%E2%80%9D-delivered>.

47

unhrc Res 44/L.15 (13 July 2020) UN Doc A/hrc/44/L.15, [2] and [10].

48

ibid [2].

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