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Invoking Circumstances Precluding Wrongfulness as Regards International Responsibility for Violation of Human-Rights Obligations during the Covid-19 Pandemic

Document Type : Article

Authors

1 Assistant prof. Department of Public and International Law, School of Law and Political Sciences, Shiraz University, Shiraz,. Iran

2 M.A Student in International Law, Department of Public and International Law, International Campus Unit, Shiraz University, Shiraz, Iran

Abstract

The COVID-19 pandemic has affected the implementation of states' international obligations, especially in terms of international human rights law. The right to health was violated more than any other rights. Although quarantines, social distancing, travel and access-to-information bans were imposed to protect public health, the inefficiency of some states led to the violation of the right to freedom of movement as well as the right to access information. Using a descriptive-analytical method, this paper will examine the implementation of these three rights during the COVID-19 pandemic and will ask which precluding circumstances can be invoked by states to justify violations of their obligations? It seems, given the high threshold for proving force majeure, the pandemic does not meet all the requirements of this factor, such as the impossibility of materially performing obligations. Nonetheless, distress and especially necessity seem worthy of consideration. Given the differences between states in terms of the severity of the pandemic and the capacity to deal with it, these factors cannot be considered as equally applicable to all states.

Keywords

References
  1. A) Books
  2. Crawford, James (2013), State Responsibility (The General Part), New York: Cambridge University Press.
  3. Gostin, Lawrence O. & Lazzarini, Zita )1997), Human Rights and Public Health in the AIDS Pandemic, Oxford, Oxford University Press.

 

  1. B) Articles
  2. Annacker, Claudia, Achtouk‑spivak, Laurie, Klinkmüller, Severin, Garden, Robert, Moore, Christopher, Kreindler, Richard, Zelbo, Howard, Vega‑gonzalez Martha E. (2020), “COVID-19: Public Health Emergency, Measures and State Defenses in International Investment Law”, Cleary Gottlieb Steen & Hamilton LLP, pp.1-7.
  3. Christine, Marie & Thjoernelund, Hoelck (2009), “State of Necessity as an Exemption from State Responsibility for Investments”, Max Planck Yearbook of United Nations Law Online, Vol.13, No.1, pp. 421-479.
  4. Droubi, Sufyan, Osorio, Leticia Marques, Terena, Luiz Eloy (2020), “The Brazilian Federal Supreme Court comes to the protection of indigenous people’s right to health in the face of Covid-19”, (23 December 2020),
  5. Ferhani, Adam & Rushton, Simon (2020), “The International Health Regulations, COVID-19, and bordering practices: Who gets in, what gets out, and who gets rescued?”, Contemporary Security Policy, Vol.41, No.3, pp. 458-477.
  6. Gathii, James Thuo (2006), “How Necessity May Preclude State Responsibility for Compulsory Licensing under the TRIPS Agreement”, The North Carolina Journal of International Law and Commercial Regulation, Vol.31, No.4, pp. 943-970.
  7. Gawronski, Christopher (2020), “Human Rights and COVID-19: Human Rights Obligations of States During The COVID-19 Pandemic”, (20 April 2020).
  8. Ghafarzadeh, Mohammad Amin (2014), “Effects of distress and necessity on the international responsibility of states”, Foreign Policy Quarterly, Vol, 28, Number 2 - Serial Number 2, pp. 317-346 (In Persian).
  9. Hasan, Haniya (2020), “Is an Ineffective State Response to COVID-19 a Violation of Human Rights?”, (16 June 2020).
  10. Hostmaelingen, Njal, Beate Bentzen, Heidi (2020), “How to operationalise human rights for COVID-19 measures”, BMJ Glob Health, Vol.5, No.7, pp. 1-4.
  11. Howie, Emily (2018), “Protecting the human right to freedom of expression in international law”, International Journal of Speech-Language Pathology, Vol.20, No.1, pp.12-15.
  12. Javid, Ehsan, Niavarani, Saber (2014), “The Scope of the Right to Health in International Human Right Law”, Public Law Research, Vol. 15, Issue. 41 - Serial Number 41, pp.47-70 (In Persian).
  13. Lebret, Audrey (2020), “COVID-19 pandemic and derogation to human rights”, Journal of Law and the Bio sciences, Vol.7, No.1, pp. 1–15.
  14. Naseri Larijani, Naghmeh (2010), “Analyzing the Interaction of Law of Treaties with Law of International Responsibility to Justify Non-performance”, International Law Review, , Vol. 27, Issue. 42, pp. 233-256 (In Persian).
  15. Nay, Olivier (2020), “Can a virus undermine human rights?”, Lancet Public Health Actions, Vol.5, No.5, pp. e238-e239.
  16. Ostrove, Micheal et al (2020), “State defences to investment claims arising from COVID-19”, (29 April 2020).
  17. Paddeu, Federica, Jephcott, Freya (2020), “COVID-19 and Defences in the Law of State Responsibility: Part I”, (17 March 2020).
  18. ---------------------------, “COVID-19 and Defences in the Law of State Responsibility: Part II”, (17 March 2020).
  19. Paddeu, Federica, Parlet, Kate (2020), “COVID-19 and Investment Treaty Claims”, (30 March 2020).
  20. Pearson, Esther (2018), “Towards human rights-based guidelines for the response to infectious disease epidemics: righting the response”, Australian Journal of Human Rights, Vol.24, No.2, pp.201-222.
  21. Seyed Morteza Hosseini, Rahele (2020), “Coronavirus crisis and the impossibility of performance of international treaties by states”, Legal Research Quarterly, Vol. 23, LAW and COVID- 19, pp. 437-457 (In Persian).
  22. Toebes, Brigit (2015), “Human rights and public health: towards a balanced relationship”, The International Journal of Human Rights, Vol.19, No.4, pp. 488-504.
  23. Weidemaier, W. Mark C., Gulati, Mitu (2020), “Necessity and the Covid-19 pandemic”, Capital Markets Law Journal, Vol. 15, No. 3, pp. 277–283.
  24. Wong, Meagan (2020), “The Law of State Responsibility and the Covid-19 Pandemic”, (30 Jun 2020), pp.321-330.
  25. Zamani, Seyyed Ghasem (2006), “Sequential Damani was right across metaphysical territory on Human Rights International”, Public Law Research, Vol. 8, Issue. 19, pp. 25-41 (In Persian).

 

  1. C) Documents
  2. Constitution of the World Health Organization. 1947.
  3. European Social Charter (ESC), 1961.
  4. World Health Organization (WHO), International Health Regulations, 2005.
  5. International Law Commission (ILC), Draft Articles on Responsibility of States for International Wrongful Acts with Commentaries, UN Doc. A/56/10, 2001.
  6. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.
  7. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), 11 August 2000, Document E/C.12/2000/4.
  8. United Nations (UN) (2020), “COVID-19 and Human Rights: We are all in this together”, Report on Human Rights and Covid-19, (23 April 2020).
  9. Human Rights Committee (HRC), “Statement on derogations from the Covenant in connection with the COVID-19 pandemic”, CCPR/C/128/2, 30 April 2020.
  10. WHO (2020), “Statement on the Second Meeting of the International Health Regulations (2005), Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)”, 21 June 2020.
  11. WHO, “Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)”, 30 January 2020.

 

  1. D) Awards
  2. GabCikovo-Nagymaros Project (HungarylSlovakia), Judgment, 1. C. J. Reports 1997, p. 7.
  3. Case of National Grid v. Argentina, International Centre for Settlement of Investment Disputes(ICSID), No: 1:09-cv-00248-RBW3, November 2008.
  4. Case of Impregilo S.p.A. v. Argentine Republic, ICSID, No. ARB/07/17, 21 June 2011.
  5. Case of Brincat and others v. Malta, European Court of Human Rights (ECHR), 24 July 2014.

 

  1. D) Websites
  2. International Bar Association (IBA) (2020), “Covid-19: potential legal actions against China”, (6 August 2020), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=D1B023C0-4033-4197-B68D-C11301478271
  3. Keitner, Chimène (2020), “Don’t Bother Suing China for Coronavirus, (8 April 2020), https://www.justsecurity.org/69460/dont-bother-suing-china-for-coronavirus/
  4. Paul, David, (2020), “US Accuses China of Using Surveillance and Censorship Worldwide”, (22 July 2020), https://digit.fyi/us-accuses-china-of-using-surveillance-and-censorship-worldwide/
  5. Shahbazi, Aramesh (2020), “Legal analysis of the prevalence of coronavirus in the scope of international health regulations”, in: https://tisri.org/?id=gblaw0j8 (In Persian).
  6. The Economic Times (2020), “US State files lawsuit against China on Covid-19 handling”, News, (23 April 2020), https://economictimes.indiatimes.com/news/international/world-news/us-state-files-lawsuit-against-china-on-coronavirus-handling/articleshow/75286051.cms
  7. Vakil, Lawyer, Amir Saed (2020). “Is the outbreak of the coronavirus a justification for not fulfilling states' commitments?”, in: https://www.tabnak.ir/fa/news/968340/%D8%A2%DB%8C (In Persian).
  8. WHO (2020), “WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020”, (11 March 2020), https://www.who.int.
  9. Wise, Jacqui (2020), “Covid-19: New coronavirus variant is identified in UK”, News, (16 December 2020), https://www.bmj.com/content/371/bmj.m4857
Public Law Studies Quarterly
Volume 52, Issue 1
Spring 2022
April 2022
Pages 351-377
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History
  • Receive Date: 18 October 2020
  • Revise Date: 20 January 2021
  • Accept Date: 24 May 2021
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