The Legal Duty to Cooperate amid COVID-19: A Missed Opportunity?

The unprecedented effects of COVID-19 have encouraged cooperation and commitment among different States to fight the pandemic and combat its socio-economic impacts. For example, on April 2, the UN General Assembly unanimously adopted a resolution calling for ‘intensified international cooperation to contain, mitigate and defeat the pandemic’, while the G20 had earlier pledged to fully cooperate to ‘deploy a robust, coherent, coordinated, and rapid financial package’ in support of at-risk communities facing the ‘health, economic, and social shocks of COVID-19’.

The question that this post raises is: Do the events of COVID-19 reveal an emerging acceptance of a legal duty to cooperate among States in providing disaster relief? Addressing this question requires examining, first, whether there is already a general duty for States to cooperate in providing assistance to secure the economic and social rights of other States; in other words, what is the legal status of a general duty for States to cooperate in this respect? Responding to that negatively, this post turns, secondly, to consider the legal status of the specific duty to cooperate in the case of disasters and the impact of COVID-19 in that context.

The Legal Duty to Cooperate Under the International Covenant on Economic, Social and Cultural Rights (ICESCR)

Some authors refer to the ICESCR as a source of the obligation of States to cooperate in providing disaster relief (for example, see here and here). They refer mainly to Article 2(1), of the ICESCR, which stipulates the following:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

According to the Committee on ESCR (the Committee), this article imposes on all State parties a general obligation to cooperate in the realisation of the human rights encapsulated in the ICESCR. It is stated in general comment 3 that

…in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international co-operation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. (para.14)

In relation to Article 12 of the ICESCR, regarding the right to the enjoyment of the highest attainable standard of physical and mental health, the Committee further emphasised that

…it is particularly incumbent on State parties and other actors in a position to assist, to provide ‘international assistance and cooperation, especially economic and technical’ which enable developing countries to fulfil their core and other obligations indicated in paragraphs 43 and 44 above. (para.45)

Nevertheless, and similar to interpretations made by the Human Rights Committee (responsible for the implementation of the International Covenant on Civil and Political Rights), the legal force of interpretations put forward by the Committee is controversial.

The International Court of Justice (ICJ) expressed its opinion on this matter in the Ahmadou Sadio Diallo (2010) decision, stating that

…the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of the treaty. (para.66)

In the Palestinian Wall advisory opinion, the ICJ also referred to interpretations of the Human Rights Committee regarding the extraterritorial application of the International Covenant on Civil and Political Rights. Nonetheless, it is noteworthy that the ICJ did not rely solely on this interpretation; rather, it substantiated it by referring to other means of interpretation (para.109).

Accordingly, despite the necessity of cooperation for the realization of human rights, it would be a weak argument to rely solely on the general comments of the Committee to justify the legal existence of a general duty to cooperate among States in realizing their economic and social rights. This weakness is further bolstered given that, as highlighted by Philip Alston and Gerard Quinn, the travaux preparatoires of the ICESCR does not seem to support the argument. Neither does subsequent State practice establish an agreement between States to interpret Article 2(1) of the ICESCR as including a legal duty to cooperate in realising the rights included therein. Although States have adopted numerous resolutions underlining the necessity of cooperation in advancing economic, social and cultural rights (for example, see here, here and here), those resolutions should not be taken as reflecting any agreement among them. Indeed, a number of States have explicitly rejected, on different occasions, the existence of a legal obligation to cooperate in that context (for example, see E/CN.4/2006/47, para.82; E/CN.4/2005/52, para.76). Thence, reference to international cooperation in Article 2(1) of the ICESCR is merely a reference to the necessary means of realising the rights it sets out. Accordingly, one concludes that a duty to cooperate in providing disaster relief cannot be deduced from the ICESCR.

The Legal Duty to Cooperate Under the Draft Articles on the Protection of Persons in the Event of Disasters

A straightforward duty to cooperate in providing disaster relief is found in the 2016 International Law Commission (ILC) Draft Articles on the Protections of Persons in the Event of Disasters. COVID-19 definitely falls under the definition of disaster as provided in Article 3, namely, ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress… thereby seriously disrupting the functioning of society’.

Article 7 of the draft articles is entitled ‘The Duty to Cooperate’ and reads as follows:

In the application of the present draft articles, States shall, as appropriate, cooperate among themselves, with the United Nations, with the components of the Red Cross and Red Crescent Movement, and with other assisting actors.

Nevertheless, the interpretation of this duty to include an obligation to provide assistance when requested by an affected State was not considered by many States as part of existing international law (A/CN.4/652 [2012] paras. 52-54; A/CN.4/697 [2016], para.68). States stressed the voluntary character of cooperation and emphasised that establishing an obligation to cooperate would amount to intervening in their sovereign decision-making. In light of this, it is difficult to claim that a duty to cooperate in providing disaster relief existed in international law before the spread of COVID-19.

The importance of cooperation between States has dominated the majority – if not all – relevant statements made in the context of COVID-19, and States have engaged in various actions of cooperation, such as providing medical supplies and financial assistance.

However, this behaviour alone does not reveal their acceptance of a duty to cooperate for disaster relief. As stated by the ICJ in the North Sea Continental Shelf case, such actions must be accompanied by opinio juris; the ‘belief that this practice is rendered obligatory by the existence of rule of law requiring it’ (para.76-77).

Given that the General Assembly’s resolution on solidarity to fight the COVID-19 was adopted through silence procedure, it is difficult to deduce from this an opinion juris on behalf of the States. Nevertheless, by reviewing other States’ statements on cooperation, one is inclined to conclude that their acts in this regard lack the necessary legal conviction for the emergence of a legal duty to cooperate in providing disaster relief.

To my knowledge, there have been no statements in respect of COVID-19 referring to the fulfilment of a duty to cooperate between States in the event of disasters. The pertinent statements have only stressed the necessity of cooperating to fight the pandemic which reveals an agreement more with the moral necessity of cooperation in the prevailing circumstances than with the legally binding nature of cooperation under international law. The use of the phrase ‘commit to cooperate’ (for example, see here and here) does not reflect as well the legal conviction of the existence of a general duty to cooperate, but could instead be understood to constitute binding unilateral declarations in the case of COVID-19.

Similarly, State demands for assistance to combat COVID-19 have not referred to the existence of such an obligation and a correlative right to receive assistance. For example, Lebanon has requested financial aid from the International Support Group for Lebanon claiming that it was just to receive financial aid to mitigate the suffering of the Lebanese people (author’s translation).

In addition, instances of non-cooperation have not been identified as violations of a legal duty to cooperate for disaster relief. For example, Italy did not claim any breach of a legal duty to cooperate when the European Union failed to provide it with the requested medical assistance.

Conclusion

Despite the calamitous effects of COVID-19, there are still no signs of change in States’ opinio juris regarding the obligation to cooperate in providing disaster relief. It is likewise not expected that States will reconsider, in the General Assembly’s 75^th session, the ILC recommendation on the elaboration of a convention related to the protection of persons in the event of disasters.

Nevertheless, there seems to be dissatisfaction with the level of cooperation among States in the fight against the pandemic after it has been reported that States are trying to monopolise COVID-19 vaccine production and banning exports of protective gears. The Security Council’s failure to adopt a resolution on COVID-19 has also contributed to this dissatisfaction. It is in my belief that the mounting dissatisfaction with cooperation during the pandemic and afterwards may be the future determinant of the need to establish and identify the contours of the legal duty to cooperate for disaster relief. As Mr. Ernest Petric puts it,

If all concerned – the affected state and the states and entities supplying assistance – acted in good faith, that was to say in the interests of protecting persons affected by the disaster, cooperation would be smooth and effective, in which case efforts to establish a legal balance between rights and obligations might provide unnecessary. Another function of law, including international law… [is] to regulate situations where rules or principles might be breached and where the protagonists might not necessarily act in good faith. (A/CN.4/3139, para.15)