Emergence of a New International Legal Order post COVID-19


The year 2020 due to COVID-19 has exhibited an unprecedented consequence of globalisation achieved on planet earth. Homo Sapiens, as we refer to ourselves as a species have hitherto witnessed interconnectivity of the planet due to the massive technological advancements in telecommunications, where major global events, whether political, social or sporting in nature and many times even natural disasters were being viewed in ‘real-time’ by the inhabitants.


In recent times, most deleterious occurrences in one part of the planet have not ever spread across the entire globe causing suffering, either biologically or physiologically to such a grave extent.


The untold human suffering, struggle for life and medical attention, due to this global pandemic has led the academia and jurists around the world to consider devising stringent global mechanisms clothed with legal sanction to prevent the spread of any such occurrences having disastrous consequences. On the positive side, the calamitous pandemic however, resulted in greater integration and interaction between the people of the world due to phenomenal development in various fields through video-conferencing technologies.


In the aftermath of the post-vaccination, when the dust settles and the pandemic stands contained, the issue of China’s accountability and the legal implications towards the enormous loss of life, suffering to health, financial costs of medical treatment etc would come to the fore. The overall global impact to the tune of US$ 8-10 Trillion dollars, including impacts to trade and commerce, besides humongous medical bills, would have to be addressed.


Given the origins of the Pandemic COVID-19 admittedly having originated in Wuhan, China, which was neither dealt in accordance with the WHO mandate/guidelines, nor was an independent International investigation permitted, establishing their absolute culpability in the spread of the global pandemic. Moreover, China’s aggressive posturing and its pandemic predatory practices, in making claims and attempts to acquire disputed territories both on land and at sea or profiteering at business, are being treated as motivated by the comity of nations. There would be a collective effort by several nations and regions to recover the economic damage suffered to their people and economies, by a demand for International reparations.


State Responsibility.


The central doctrine in International law of ‘State Responsibility’ was formally conceptualised over 2 decades ago, in the form of a codified document by the ‘International law Commission’; adopted on 12th December 2001, as resolution No. 56/83 by the U.N.General Assembly titled ‘Responsibility of States for Internationally Wrongful Acts, 2001’. These are now known as ‘Draft Articles’, which represent both the codification and progressive development of the doctrine in International law. This codified law has generally found approval and acceptance of the states, and the International Court of Justice has relied upon and cited it in some of its opinions.


To define briefly, the concept of ‘State Responsibility’ holds a state fully responsible for the breach or violation of its obligations under International law. The rules of state responsibility define the accountability aspect and describe the process by which legal consequences become applicable for the violation of International covenants.


The rules are both primary and secondary in nature, determining the basic nature of the breach and its assessment or application to the framework of the obligations under the covenant. They are analysed as follows:

1. Actions in Violation of International Law & International Covenants.


In any given situation, while determining the International wrongs, there is a twofold test as to what constitutes such an international wrong and how do we arrive at this conclusion. i) Attribution to State: Every action of the Governmental machinery resulting in armed conflict, environmental damage, including spread of pandemic and other hazardous activities towards another state or number of states will count as clear and direct evidence to show those in positions of power, had taken part in such actions by which responsibility can be fixed on them. The question as to whether non-state actors within the state are responsible for those actions or had any influence is a matter to be investigated seriously. ii) Breach of International Obligation by State. Today, no country can survive in the comity of nations without adhering to or being a signatory to international covenants which are wide ranging for the protection of mankind and other species, like health, human rights, environment, Economy and Trade, besides, world heritage monuments etc. Any violation of a solemn commitment would constitute a serious breach. Those termed as serious crimes are contained in Articles - 40 & 41 of the ‘Draft Articles.


2. Liability & Legal Consequences:


The most severe liability arises in situations where a wrong is treated as a crime against humanity, like genocide, acts which disturb the maintenance of international peace and security by violating principles of prohibition of aggression; actions resulting in massive degradation of environment and ecology causing grave danger to human life and other species; and finally, any act which results in the injury to the health, life and well-being of humans and other species due to negligent/intentional spread of contagious and infectious diseases. All of these activities will result in liability and legal consequences. The Legal consequences which are principally outlined in 3 Articles Art.30 deals with duties of non-repetition and cessation, while Art.31 deals with reparations, Art.33(1) specifically states that whether injury or damage to one state or several or the International Community has to be determined on the facts and circumstances of each violation. The ‘Draft Articles’ also create rights in favour of the injured state/states and International Community, while Art.42 and 48 contain the right to invoke liability and Art.49 grants limited rights of taking counter-measures.


3. Defences and Implementation of Legal consequences.


Upon the principles of ‘State Responsibility’ becoming applicable against any state, then the rules of fairness and legality grant an opportunity to that state to explain its actions and take any defences These include force majeure (Article 23), distress (Article 24), state of necessity (Article 25) and counter measures (Articles 49-52), self-defence (article 21) and consent (article 20).


Having outlined the central issue of ‘State Responsibility’ we need to now review in a detailed manner the fallout of an alleged breach of International covenants and the legal consequences thereof.


Role of International Organisations – For assessment of violations of the International law, the various International organisations created under the aegis of the United Nations such as WHO, the Human Rights Council, and the Security Council, that would deliberate upon the issues arising from the material placed before them, by the member states. Another important issue would be whether the jurisdiction of the International Court of Justice could be invoked for the violations of the International Health regulations, as laid down in Art.6 & 7. Already the Human Rights Council and the International Criminal Court have been petitioned


1. Impact on Global Trade, and finance, regulation and reparations.


There is an uneasy calm due to the tremendous efforts by the global Economies and International Financial Institutions, which have risen to the occasion to tackle an impending International Financial crisis, affecting global trade and investment. The amazing resilience shown by the stakeholders till now may only be a temporary respite before the storm. As mentioned above, there are a large number of states, financial institutions and global entities, who would be exploring the route to make claims against either states or private entities for their financial downturn or even bankruptcies in some cases. The WTO would have an daunting task while considering the relevant jurisprudence to be applicable by its panels and the Appellate Body, both in general and in particular in the context of export restrictions on natural resources.


There would also be a host of trade and investment disputes, between private parties, which would be knocking at the doors of various fora of Arbitration tribunals such as ICSID Washington, UNCITRAL Vienna, The permanent Court of Arbitration Hague, London Court of International Arbitration, International Chamber of Commerce Paris, SIAC – Singapore, International Arbitration Centre, International Dispute Resolutions Centre and so on.


2. Evolution of International Legal Mechanisms.


In the light of the availability of newer tools of interaction through sophisticated telecommunication and video-conferencing systems, the legal world is richer by its close-knit functioning and fast paced exchange of data and material which paves way for greater standardisation of rules of engagement of international legal mechanisms. The explosion of opportunities and ability to create much more smoother mechanisms due to simultaneous interaction of jurists, legal professionals and dispute resolution bodies worldwide would enable the evolution of an exceptionally acceptable system for the benefit of all nations.


Conclusion


Needless to say, the COVID-19 pandemic may have brought about untold and immense suffering to the human race comprising various nationalities, but it has perforce resulted in an opportunity for jurists, legal professionals and International Dispute resolution bodies both private and public to improve standardise and develop effective legal mechanisms not only for the benefit of the global Trade and Investment ecosystem, but also for greater health standards, environment and human rights etc.

Author: Dr. G.V. RAO

(Senior Advocate, Supreme Court of India)



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