The Response of International Law to the Current Public Health Emergency of International Concern ‒ With Focus on Legal Aspects of Foreign Policy Issues Relating to COVID-19 ‒

Abstract

Against the background of enhanced global interdependence and growing concerns over socio-economic inequalities, the pandemic of COVID-19 is expected to significantly impact the field of international law. Based upon the recent experience in legal advising for Korea’s foreign-policy response to the public health emergency of international concern, this article explores how international law addresses some of the current issues caused by the spread of the disease. The main topics are human rights; the status of aliens; and diplomatic privilege and immunity. First, while public response to infectious diseases may involve restriction on individual rights, the governments are required to comply with the requirements of the relevant international human rights covenants. Protection of vulnerable groups and safeguarding privacy are also critical legal issues in responding to the pandemic. Second, the implementation of travel restriction such as entry ban on foreign travelers coming from affected areas could be considered as being within the domaine réservé of sovereign states. Many states have relied on temporary suspension of visa waiver agreements in order to tighten the border control. Yet, the principle of non-discrimination and other human rights concern should be respected, as well as the objective of facilitating certain essential travel. Third, certain aspects of public health measures may be inconsistent with diplomatic privileges and immunities, resulting in difficult issues. Such privileges and immunities cannot be overridden even in the public health emergency, while the sending states may voluntarily consent to some of the intrusive health measures in the spirit of voluntary cooperation. The concept of the self-contained regime is also relevant in this respect. The lessons learned from the current pandemic may lead to a new set of international norms to meet the challenges of the new era of infectious diseases. New norm-making could take the form of bilateral agreements, regional norms or the improvement of IHR(2005), with focus on substantial issues such as information-sharing cooperation, human rights including digital tracing and privacy, minimization of interference with international trade and traffic and core capacity-building in public health areas.