Faculty Highlights Repository

Luz Nagle

Developed a special online class on April 13 on the intersection of COVID-19 and international law. The class was done using Zoom and I reached out to former students to attend the class. Nearly one dozen alumni logged into Zoom to attend the class. I prepared an extensive international timeline of events during the COVID-19 outbreak from December 2019 through April 2020, conducted extensive research, and prepared documents and readings for the class to discuss the following issues: (1) What role does the WHO have in preventing a pandemic? Does any responsibility attach to the WHO for the pandemic? (2) Are States to take primary responsibility to prevent, treat, and control epidemic diseases? (3) Does China have any duties toward other states? Do other States have international duties? (4) Should someone be held responsible for the spread and pandemic of COVID-19? If so who and why? (5) Under international law, did China violate anyone’s rights, or any international treaty or obligation? (the WHO 2005 IHR, the WHO Constitution?) (6) Should there be a role for the UN Security Council, the UN Secretary General? The discussion included discussions of the voluntarist and co-operative character of an international law framework, the law of responsibility under international law, human rights law, ILC work, the role of the WHO, VCLT, the UN, the UN Charter, and the UN Security Council and its relevant Resolutions. We looked at several examples of landmark international litigation regarding state responsibility for damages and liability, including the Trail Smelter case (U.S. v. Canada), the Pulp Mills case (Argentina v. Uruguay), Nuclear Tests case (Australia v. France), Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons (1996), and the ILC Work: 2001 Draft Articles on the Prevention of Transboundary Harm. The points selected to guide our discussion were: (1) Is the harm caused by the coronavirus covered by the Draft Articles? See Article 1 and Commentary. If so, why? (2) States have a duty to prevent “significant” transboundary harm emanating from their territories, regardless of who caused it or the lawfulness of the activity generating it. What does ‘significant’ imply? Is it something more than “detectable”, but need not be at the level of “serious” or “substantial”? Does it encompass a low probability of causing disastrous transboundary harm or a high probability of causing significant transboundary harm? See, Art. 2 Comment 4 at 152. (3) Under article 2 and Commentary: What is China required “to prevent, stop and redress?”; What does the “no-harm principle require China to do? (4) Looking at Draft Articles on Prevention, at 153-154, is China required to prevent or stop the harm? (5) When does the obligation to prevent arise? See Draft Articles on Prevention, at 155, Commentary to Article 3, para 18. (6) What are the appropriate measures to discharge China’s duty to prevent transboundary harm? Is China obligated to employ measures, or is doing so voluntary? (7) Are all States required to act under the no-harm principle, or only China? Does action depend on a State’s responsibility for the harm? Are non-state entities required to act? (8) Does the no-harm principle cover viruses which may be considered as an “accident or a natural disaster”?, International Law, April 2020


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