Do We Need an International Commission of Inquiry for COVID-19? Part I

As the COVID-19 pandemic dominates daily life, questions abound. How did the virus start and spread? How can the problem be managed and an effective treatment or vaccine be developed and made available? Have states and the World Health Organization (WHO) acted reasonably and appropriately? Much attention has focused on the alleged wrongdoing of China, as well as states that may be exploiting the crisis to shirk their human rights obligations. This two-part post considers whether the response to COVID-19 should include an international commission of inquiry—an idea that Australia and the European Union have already raised. The first instalment considers what a commission of inquiry’s mandate might contain and who could create such a body. The second part considers what the composition of an international commission of inquiry might look like and how to maximise co-operation with any such endeavour.

Why an inquiry rather than litigation?

An international commission of inquiry, whose findings and recommendations would be non-binding, provides an alternative to adversarial, litigation-focused responses that may not be fit-for-purpose. The possibility of COVID-19 litigation against China has generated considerable commentary (see here, here, and here), but a wide-ranging and thorough commission of inquiry may be a more productive use of resources than a bundle of separate legal actions. Neither domestic nor international lawsuits aimed at apportioning blame and obtaining money damages (the latter seems to be the main motivation—see here and here) hold much promise, despite the innate appeal they may hold for grieving families and aggrieved politicians. For one, even if a court were to establish that China violated the legally-binding International Health Regulations (IHR)—including obligations of prompt notification (Article 6), information-sharing (Article 7), or consultation (Article 8)—this would not necessarily trigger China’s legal responsibility for the massive consequences wrought by the spread of the virus beyond its borders. The causation issues are formidable. Moreover, there is no reason to subject only China’s conduct to scrutiny. Is the international responsibility of other states that failed to prevent the onward spread of the virus also engaged? Do the inadequacies of other states’ responses mitigate China’s potential liability? Most states have made a range of policy decisions (e.g., ‘lock-down’ measures, testing strategies, contact tracing, travel restrictions, PPE procurement, economic relief) that may or may not look reasonable in hindsight. In short, it is far from clear that litigation is a good idea—and it may be counter-productive.

Individual states will also inevitably establish their own inquiries under domestic law to examine their responses and preparedness. Some US lawmakers have called for an independent, bipartisan 9/11-style commission of inquiry. These may be highly useful and necessary exercises, depending on their mandates and whether they have sufficient freedom to investigate and criticise their home governments. But they are unlikely to provide a genuinely global perspective, and the ‘silo effect’ of parallel but separate inquiries may do little to help construct a consensus narrative or agreement on future collective action. As much as any recent global crisis, the pandemic has made clear that cross-border threats cannot be solved through individual national responses.

What should a COVID-19 commission of inquiry’s mandate contain?

As with any international commission of inquiry, the question of objectives is essential: What is the inquiry intended to accomplish? Should this be an international commission focused principally on state responsibility and accountability, or should this be a forward-looking, ‘lessons learnt’ exercise that seeks to establish an authoritative narrative and a blueprint for the future? My own inclination would be to pursue the latter: a commission of inquiry with a mandate to document the response as comprehensively as possible (a massive task if pursued at a truly global level), to push back against false narratives and disinformation campaigns, and to offer a forensic account of the crisis that can be drawn upon as deliberations proceed on the larger structural changes that a post-COVID-19 world may require.

One reason not to focus on blame and accountability is the near assurance that this will antagonise key states and encourage their retrenchment behind self-serving national narratives. If the inquiry is intended to foster a shared understanding of the crisis and an ethos of cross-border problem-solving (wishful thinking, I know), a disproportionate focus on legal accountability would undermine these goals before the inquiry even began. States are unlikely to co-operate if they see the commission as a precursor to legal claims and political retribution, or as an instrument intended to humiliate and destabilize. This would mean less transparency, more obstruction, and a concerted effort to cast doubt on the capacity and credibility of the investigation. To avoid this scenario, it is not beyond the pale to consider whether some type of a waiver of inter-state claims relating to the pandemic might be a worthwhile cost of inducing the broadest and deepest participation possible (contingent, however, on that participation and co-operation taking place in good faith). The way that truth commissions have granted amnesties to some categories of witnesses in exchange for their full and truthful testimony provides an imperfect analogy.

This does not mean that a COVID-19 commission should ignore international law entirely. The question is what its engagement with international law should look like. For example, it may be desirable for a commission to consider whether existing international legal instruments—such as the WHO Constitution and the IHR—could be improved. Some have argued that the WHO did not act quickly enough or with sufficient diligence; the inquiry might assemble evidence that corroborates or refutes those claims, but more importantly it might identify structural flaws in the existing legal instruments that impeded a more effective response. For example, should the requirements needed to trigger the declaration of a Public Health Emergency of International Concern (Article 12 of the IHR) be different? The mandate might also cover topics such as the international regulation of ‘wet markets’ or the legal status of export bans affecting trade in medical goods. Moreover, legal instruments will inform the direction of fact-finding. For example, Articles 9 and 10 of the IHR contemplate a situation in which the WHO may initiate a verification process with a member state on the basis of concerning information, even before the member state has formally notified the WHO about a new pathogen. This suggests a certain line of inquiry into whether the WHO did so (or could have done so) with regard to China in this case. But this is quite different from a focus on legal responsibility that threatens to turn the inquiry into a score-settling exercise.

A more prudent option may be an international commission of inquiry with a mandate to examine the global response to the pandemic from a problem-solving perspective: a state-by-state accounting, with attention as well to the role of the WHO, the World Organization for Animal Health (OIE), the European Union, and other relevant international entities. The idea would not be to focus disproportionately on the acts or omissions of any particular state or international organisation, although it is inevitable that China and the WHO—and their interactions with each other—will receive considerable attention. But how the virus spread beyond China and how states have co-ordinated their responses should also be on the table.

In sum, a COVID-19 commission of inquiry could be mandated to construct an authoritative chronology of events and decisions (including who knew what and when), how different parties reacted to the evolving data streams (taking care to put policy-choices into the correct context based on then-available information), and what strategies were implemented and to what effect. This may involve examining different measures of ‘effectiveness’, whether from a public health perspective or otherwise. The exercise could be entirely descriptive, or the commission could evaluate whether different policy decisions fell within a range of reasonable responses when they were taken. The commission could also be asked to offer a set of recommendations aimed at preventing future public health emergencies and, when they arise, how to better manage the collective response. This inquiry model is more akin to an investigation into the acute and structural causes of an airplane disaster—without a focus on liability—than an investigation that aims to assign state responsibility or pave the way to criminal justice.

What entity should establish a COVID-19 commission of inquiry?

Given the global nature of the problem, there is good reason to look to the principal organs of the United Nations. The Security Council, the General Assembly, and the Secretary-General have the legal authority to establish international commissions of inquiry and each has done so in other contexts. But the question of who should provide the mandate and fund the commission is more a matter of politics than legal authority. The degree to which an international commission of inquiry can fulfil its mandate is often a function of the support and co-operation that it receives from states, especially those states whose conduct is under scrutiny. States frequently refuse to co-operate with international commissions of inquiry, and this typically means that a commission will be more limited in the sources of evidence that it can consider. The refusal to co-operate with an inquiry—ostensibly based on claims that the commission or its mandate-provider is biased, but also driven by an unwillingness to have one’s mistakes or delicts exposed—can function as a self-fulfilling prophecy; the refusal to co-operate may lead to a less nuanced and more damning report.

Arguably, a commission of inquiry established by the Security Council might be the best-case scenario, if it were possible—and this is a big ‘if’. There is scant evidence that the global crisis of COVID-19 has fostered the type of inter-state solidarity that one might have hoped to see and that Security Council action requires, as frustrated diplomats have reiterated. Working through the Security Council would require China, the United States, and the other P-5 states to work together to arrive at a structure and format that they can live with. This seems unlikely, or could lead to a weak commission with a narrow or diluted mandate. If that outcome could be avoided, however, the establishment of a commission of inquiry by the Security Council (either on its own initiative or by directing the Secretary-General to do so) could signify a seriousness of commitment and bring others along. In theory, the Security Council could even seek to compel co-operation with the inquiry by acting under Chapter VII, on the ground that the pandemic is a threat to the peace; this would be novel, but a comparison could perhaps be drawn to the Security Council’s quasi-legislative counter-terrorism initiatives post 9/11.

The UN General Assembly is another option. This would allow for greater formal participation in the process of establishing the inquiry body. Given the potential global reach of any commission’s competence, this option has some appeal, but could also make it even harder to reach consensus on a mandate and structure. Even a strong General Assembly vote in favour of establishing the commission might mean little without buy-in from key players. The UN Secretary-General could also establish a commission of inquiry on his own initiative. In principle, the Secretary-General has more freedom to act than either of the aforementioned deliberative bodies, and he could undoubtedly assemble an impressive panel. This is a viable option, especially if key states offer their tacit support, but prefer to maintain some public distance from the initiative at the outset (no social distancing joke intended).

The above options seem preferable to a subsidiary body such as the UN Human Rights Council taking the lead, although one could imagine the Human Rights Council establishing an inquiry into the specific (yet still broad-ranging) question of whether states have taken unlawful or problematic measures to interpret their human rights obligations restrictively or to derogate from their obligations. Another possibility is the WHO. The World Health Assembly, which is holding a virtual session today, is already taking steps in this direction, and a draft resolution includes a request to the WHO Director-General to initiate an ‘impartial, independent and comprehensive evaluation’ of the WHO-coordinated international health response to COVID-19. A WHO mission was able to visit Wuhan in February (and scientists from various countries were able to conduct some investigatory work in China earlier this year), but those investigations, which depend on China’s co-operation, appear to have stalled. It would also go beyond the authority and competence of the WHO to undertake a more wide-ranging review that deals with aspects of the crisis beyond public health. The WHO will likely establish its own internal or independent review—and this should be welcomed—but an external assessment of the WHO’s performance is also needed, especially considering the extent to which the organisation has been alternately celebrated or demonised.

A final option would be an international commission of inquiry outside of formal structures, along the lines of the Independent International Commission of Inquiry for Kosovo that was established at the initiative of the Swedish government in 1999, but operated as an independent non-governmental entity. This option may be attractive because it could seemingly be pursued without having to work through the messy politics of the UN Security Council or another international institution and could still attract an impressive cast of respected leaders and experts. But avoiding those messy politics might also be its failing—it would function as yet another advisory group without any formal authority or institutional backing, and its work might be considerably hampered by a lack of access.

Part II of this post will take up some further questions, including who might be asked to serve on an international commission of inquiry for COVID-19, how such a commission might organise its work, and whether key states could be persuaded to participate in good faith.