Tuesday, 10 Rabiul Awwal 1442 / 27 October 2020

Tuesday, 10 Rabiul Awwal 1442 / 27 October 2020

Covid-19, Erga Omnes, and Jus Cogens

Selasa 28 Apr 2020 16:35 WIB

Red: Fernan Rahadi

Covid-19

Covid-19

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The Jus Cogens character emphasizes the severe gravity of the matter.

REPUBLIKA.CO.ID, By Fajri Matahati Muhammadin* and Siti Kholifatul Rizkiah**

Amidst the terrifying global pandemic of Covid-19, numerous brilliants articles were written by scholars all over the world regarding the issue. Among them is an article titled "Korona dan Kewajiban ‘Erga Omnes’" by Professor Sigit Riyanto from Universitas Gadjah Mada, published by Kompas on 21 April 2020. That article suggests that there is an obligation Erga Omnes (i.e. for all) to participate in combating Covid-19.

Perhaps almost everyone can generally understand the gravity of the Covid-19 problem and how there is an obligation towards everyone without distinction to contribute to suppress it. However, the term Erga Omnes is a special term indicating a different level of gravity which only those in the field of international law could truly fully appreciate.

The term Erga Omnes was popularized by the International Court of Justice (ICJ) in the Barcelona Traction Case judgement (1970). They mentioned that there are certain obligations which are in the interest of the entire international community to uphold, therefore these obligations are Erga Omnes. They also gave examples of obligations Erga Omnes to include inter alia the prohibition of aggression, genocide, slavery, and racial discrimination.

There is another term very relevant to Erga Omnes which needs to be introduced, which is Jus Cogens. The term Jus Cogens, which literally means ‘compelling law’, is known as a norm recognized universally as having the highest status in international law that no derogation is permitted except by another (subsequently emerging) Jus Cogens norm. Such is the power and level of Jus Cogens norms in international law, that even state sovereignty cannot override Jus Cogens. 

Therefore, for example, Article 53 of the Vienna Convention on the Law of Treaties between States (1969) rules that any treaties contravening Jus Cogens are null and void. This is despite such treaties, already agreed upon by two or more sovereign states, based on the pacta sunt servanda principle which is said to be among the most fundamental rules of international law. 

Mahmoud Cherif Bassiouni (1998) explains Jus Cogens norms would usually prohibit things that affects the international community as a whole because they either threaten international peace and security and/or shock the conscience of humanity. Examples of Jus Cogens norms would also include the prohibition of genocide, acts of aggression, slavery, and racial discrimination.

The reason why the examples of Jus Cogens norms and obligations Erga Omnes are similar is because the latter is the logical consequence of the former, indicating the very strong ties between the two. Meaning, as explained by Bassiouni, Jus Cogens norms will result in obligations Erga Omnes. 

This also means (rhetorically) that, if there is an obligation which is Erga Omnes, it must have come from a norm which has a higher status in international law that no derogation is permitted. Such is the gravity of Erga Omnes if we consider how it relates to Jus Cogens norms.

As explained earlier, the examples of Jus Cogens norms and obligations Erga Omnes would usually revolve around very terrible things known to humanity. If one were to add more examples, more terrible things will follow such as torture, war crimes, and other cases of severe human rights violation. Could the need to combat a global pandemic fall under this category and sit beside the previously mentioned terrible horrors known to humanity?

The international health regulations (IHR) explained by Professor Sigit Riyanto is indeed an important basis from which to conclude that there are obligations for all states to generally cooperate in matters related to inter alia prevent the spreading of disease. This relates to the rights of health. 

However, does such obligation generally share the characteristics of Jus Cogens as having the highest status in international law from which no derogation is permitted? The problem of H1N1 influenza may have caused grave concern but to compare it to genocide and other jus cogens norms would seem to be an over-exaggeration.

However, Covid-19 is exceptionally devastating. As a global pandemic, Worldometers reported 2,501,919 infections and 171,741 deaths from Covid-19 worldwide. This number is by 21 April 2020, less than six months since the first outbreak in Wuhan in December 2019 and still counting. Additionally, there is high level of potential unreported cases due to the lack of testing. Worldometers reports that Indonesia is among the lowest in this regard, testing only 182 people per one million population, compared to Singapore and Malaysia which have tested 16,203 and 3,344 per one million population respectively. 

The Indonesian Medical Association (IDI) Chairman stated that the real Covid-19 death count is very likely much higher than the official reports. Such terrifying claim may be corroborated by a spike in Jakarta’s funerals up to 40% on March 2020 than any month since 2018 as reported by Reuters. Other countries are very likely to experience the same such as the USA as reported by the Washington Post.

Further, Covid-19 has affected all lines of economic sectors. Over 90% of the global GDP is affected and, according to the International Monetary Fund (IMF), the world’s economy is in a global recession potentially worse than the 2009 financial crisis. The Economist Intelligence Unit claims that global growth is projected to decrease up to -2.25%, and there is a sharp decline on the financial market with the prices of stocks and bonds falling sharply. 

The US DJIA stock market index recorded a 34% decline from February to March 2020, the lowest since 2009. The World Trade Organization also projects a decline in the global trade between 13% and 32%, especially with China and the US as the top global traders being hit severely by the virus, this leave a contagious impact to the supply chain across the globe.

The spillover effect is also shown by the decrease in Purchasing Manager Index (PMI) up to below 50% which, as argued by many experts, is a sign of recession. This implies a significant drop in the confidence level of industrial players in manufacturing and service sector. On a more micro level, Covid-19 has affected consumer spending across the globe due to the decrease in average household income level, and an estimate of millions of workers are losing their jobs. The Small and Medium Enterprises (SMEs) seem to be most affected, losing much revenue or even ceasing operations, many potentially or already driven to bankruptcy. 

This is not to mention the other social costs. Movement restriction has been sanctioned in various countries, imposed by governments or at the initiative of local communities. Schools and Universities are forced to either conduct their learning process online or halt altogether. Various places of worship of various faiths across the world are vacated as religious leaders of all faiths call for acts of worship to be performed at home. Social gatherings, to the furthest extent possible, are restricted.

Covid-19 has, in such a short time, hit humanity very hardly on so many levels. Not only that it threatens the rights to health and life at an exponentially alarming rate worldwide which humanity perhaps has never witnessed before. It also threatens economic, social, religious, and cultural rights very severely and worldwide. 

Perhaps only a few wars could match this scale of devastation, making the Covid-19 pandemic a threat towards international peace and security as much as it shocks the conscience of humanity.

Therefore, it seems compelling to suggest that this Covid-19 pandemic has brought an Erga Omnes obligation which rises out of a Jus Cogens norm. If the obligation’s relation with Jus Cogens is accepted, the consequence is more than just that all (without exception) must contribute in combating Covid-19. Rather, it also means that such obligation comes from the highest norm of international law and would take precedence over other international obligations and even sovereignty if they contradict each other. 

It can be therefore suggested that a state is responsible under international law if their action or omission causes more rapid spread of Covid-19. China is under global spotlight for suppressing Covid-19 information after the outbreak in Wuhan. Scholars such as Tom Ginsburg (University of Chicago) are suggesting that China is internationally responsible for the harm this pandemic is causing to other countries. As is now common knowledge, what was once a local outbreak in Wuhan, China, is now a global pandemic.

However, the Erga Omnes character of the obligation to combat Covid-19 is, as the term suggests, is not just for China but for all. More importantly, the Jus Cogens character emphasizes the severe gravity of the matter. When combatting Covid-19 sits alongside the prohibition of genocide, slavery, torture, and other terrifying acts known to humanity, perhaps states should step up their efforts to what a Jus Cogens deserves. After all, China does not seem to be the only state guilty of suppressing information and other negligent acts which may have contributed to the spread of the global Covid-19 pandemic as we now know it.

 

*Lecturer at the Department of International Law, Faculty of Law, Universitas Gadjah Mada

**Postgraduate Student at the International Centre for Education in Islamic Finance, Malaysia

 

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