Hello. The following blog posts were written by the New York International Law Review senior staff members for the Fall 2020 semester. The posts focus on international events and their relationship to international law.
The COVID 19 pandemic has had lasting effects on the economies of low, middle, and high-income countries. Despite the pandemic being around for less than a year, its impact will last for many years to come. This blog post will examine the background of COVID 19, how COVID has impacted the economies of various countries, and how countries have attempted to rectify economic damage that has resulted from COVID.
COVID 19 began around November of 2019 and is believed to have originated in Wuhan, China.The virus is believed to have been transmitted from an animal source and is now rapidly spreading between humans via airborne droplets. The virus has spread globally since November of 2019 and has infected millions of people. COVID can vary in its intensity, ranging from asymptomatic to severe pneumonia and death. Pertinent statistics relating to the serious of COVID include:
[T]he incidence of respiratory failure in Wuhan was 54% overall; of those patients who died, 98% had respiratory failure compared to 36% of those who survived. All of those who succumbed had sepsis, and 93% had acute respiratory distress syndrome (ARDS), while 42% of survivors had sepsis and 7% had ARDS. Also noted in this Wuhan cohort was a 48% prevalence of comorbidities in those who died, most commonly hypertension, diabetes mellitus, and coronary artery disease. Increasing age was also associated with increased risk of death. Overall, in-hospital mortality rate was 28%, and for those requiring medical ventilation, it was 97%.
II. Impact on Low Income Countries
Low income developing countries (LIDCs) are in a very difficult position as a result of the COVID 19 pandemic. Without international aid for LIDCs it will be difficult for these countries to prosper in the future. Since the beginning of the COVID 19 pandemic, LIDCs have been impacted by a decrease in exports, lower export prices for many goods most importantly oil, less influx of capital, and a large decrease in tourism. For example, “remittances, for example, that exceeded 5 percent of GDP in 30 (out of 59) LIDCs in 2019. Between April and May, they fell by 18 percent in Bangladesh, and by 39 percent in the Kyrgyz Republic, compared to the previous year.” Such economic repercussions will likely be felt for many years to come.
One major issue for LIDCs that has resulted from the COVID 19 pandemic is food shortages. According to a recent survey, conducted across 20 African countries, over 70 percent of individuals in these countries are at risk of running out of food if a lockdown were to last more than two weeks.Another large issue that may occur in LIDCs as a result of the COVID pandemic is “scarring” which is “the permanent loss of productive capacity.” Scarring has resulted after previous pandemics and leads to a decrease in health and education, a depression of future earnings, a decrease in production, and economic debt. An example of scarring was shown in Sierra Leone after the 2013 Ebola pandemic when the country did not return to its pre-crisis economic growth path. If scarring results from the COVID pandemic it would result in major setbacks in global Sustainable Development Goals and greater global inequality.
In order to avoid a spike in COVID cases, which would thus lead to a food shortage and scarring, researchers recommend social distancing and contact tracing. “As a broad-based containment becomes difficult to sustain, LIDCs should transition to more targeted measures, including social distancing and contact tracing– Vietnam and Cambodia are good examples. Policy support should focus on supporting the most vulnerable, including the elderly, and on limiting the health crisis’s long-term fallout.”
III. Impact on High Income Countries
High Income Countries (HICs) have generally responded to COVID 19 with similar tactics. First, HICs entered a suppression phase typically referred to as “flattening the curve.” The goal of phase one is to avoid an overflow of COVID patients in the hospitals, which was seen in Wuhan when the virus began. The next phase commonly followed by HICs is maintaining the initial suppression. Maintenance of the initial flattening of the curve has been done through continued social distancing, identifying cases quickly, and isolating such cases. While these methods of decreasing COVID outbreaks have found success in HICs the next question is whether such methods would be successful LIDCs.
IV. HIC COVID response in LIDCs
Assistance from the international community will be key to preventing vast COVID outbreaks in LIDCs. Key aspects of support include:
(1) guaranteeing essential health supplies, including cures and vaccines when they are discovered; (2) protecting critical supply chains, especially for food and medicines; (3) avoiding protectionist measures; (4) ensuring developing economies can finance critical spending through grants and concessional financing; (5) ensuring LIDCs’ international liquidity needs are met, which requires international Financial Institutions to be resourced adequately; (6) reprofiling and restructuring debt to resort sustainability where needed, which, in many cases, may require relief beyond G20/Debt Service Suspension Initiative; and (7) keeping sight of the United Nations’ SDGs, including by reassessing needs which the crisis subsides.
The International Monetary Fund has committed $10 billion interest-free loans for LIDCs fighting COVID. Also, the World Economic Forum has created a COVID action plan in order to engage public and private partnerships in taking action in regards to the pandemic. In addition to financial aid, it is recommended that Nongovernmental organizations (NGOs) contribute with additional support. For example, “the Lifebox Foundation, partnering with Smile Train and Gradian Health Care, has secured 1650 pulse oximeters for distribution to countries most in need . . . . Massive efforts will be needed to improve oxygen availablility.” In order to ensure against massive fallout for LIDCs as a result of COVID 19 the previously mentioned suggestions should be put in place as soon as possible.
 Will the Higher-Income Country Blueprint for COVID-19 Work in Low-and Lower Middle-Income Countries?, GLOBAL HEALTH: SCIENCE AND PRACTICE(Oct. 12, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7326511/.
 COVID-19: Without Help, Low-Income Developing Countries Risk a Lost Decade, IMF BLOG (Oct. 12, 2020), https://blogs.imf.org/2020/08/27/covid-19-without-help-low-income-developing-countries-risk-a-lost-decade/.
 The COVID-19 Pandemic: Effects on Low- and Middle-Income Countries, Anesthesia & analgesia(Oct. 12, 2020), https://journals.lww.com/anesthesia-analgesia/Fulltext/2020/07000/The_COVID_19_Pandemic__Effects_on_Low__and.13.aspx.
 IMF Blog, supra note 6.
GLOBAL HEALTH: SCIENCE AND PRACTICE, supra note 1.
Recent news has pointed to alleged forced hysterectomies of women in US detention centers. Foreign Minister of Mexico, Marcelo Ebrard, is investigating such accusations and is likely to seek recourse on behalf of the victims if the investigation finds credible evidence. There are numerous agencies that focus in an effort to combat forced sterilization, including but not limited to the Office of the High Commissioner of Human Rights, United Nations Agency for Gender Equality and the Empowerment of Women (UN Women), United Nations Children Fund (UNICEF), and the World Health Organization (WHO). These agencies cite a number of treaties and declarations in support of their efforts to put an end to forced, coercive, and otherwise involuntary sterilization. Some of these are the United Nations Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, and Article 7 of the Rome Statute of the International Criminal Court. Mr. Ebrard is likely to rely on many of these to bring these claims against United States officials. The main issue with a lot of these international documents is that they are not binding, and therefore even if a country has signed on and ratified the agreement, it is very hard to enforce and ultimately seek recourse. Because of this, Mexico is likely to rely on legal precedent to bring claims against the United States. A noteworthy case regarding whether or not Mexico can sue on behalf of their citizens in the United States is Pfizer Inc. v. Government of India. In Pfizer, the Supreme Court held that foreign nations were entitled to sue the United States’ entity Pfizer, despite the fact that respondents were foreign. The case regarded an alleged violation of antitrust laws, and the Court’s rationale affirmed that foreign nations had standing to sue regardless of the fact that they were sovereign. Here, the Sherman and Clayton Acts each provided that the word “person” shall be deemed to include corporations and associations.
In contrast, a United States District Court dismissed a claim because the federalism justifications that might permit states to bring suit parens patriae were absent. In Estados Unidos Mexicanos v. DeCoster, Mexican immigrant workers and the nation of Mexico brought a civil rights action against their employer. The employer, a Maine private entity, was accused of discriminating against and treating its employees unfairly. The court refused to extend the doctrine of parens patriae to a foreign nation absent a clear indication of intent to grant such standing, by the United States Supreme Court or by the other two branches of government. Ultimately, the court held that the plaintiffs in this suit, could find potential relief under the executive branch through the North American Free Trade agreement or other labor agreements.
Parents patriae, or “parent of the nation”, is a common law doctrine that allows a state to protect “quasi-sovereign interests.” The doctrine is a basis for state standing, and allows a state to sue on behalf of its citizens in the interest of the “well-being of its populace.” The interest must be recognized by the Supreme Court. Here, the government of Mexico may be able to sue on behalf of the individuals who were forced to undergo sterilization procedures while in the custody of US officials, under the guise that a recognized interests is a “state’s effort to secure its citizens ‘from the harmful effects of discrimination.’”
The women who suffered the forced sterilizations can bring suit in the United States under the Alien Tort Statute. The Alien Tort Statute, or ATS, is a federal law adopted in 1789 that gives federal courts jurisdiction to hear lawsuits by non-U.S. citizens for torts committed in violation of international law. International law has expanded to include the protection of human rights, and ATS has enabled survivors of egregious human rights abuses to bring suit against the perpetrator in the United States. Although ATS provides standing to sue, a foreign national suing US government officials will likely face significant legal challenges. Courts have often rejected suits against US officials for human rights violations on grounds of political question doctrine or sovereign immunity.
Sexual violence, which includes forced or coercive sterilization, is considered an international crime. The women who have suffered through these procedures, can sue under a number of international agreements, including the Fourth Geneva Convention, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Rome Statute of the International Criminal Court delineates that “enforced sterilization refers to forcibly sterilizing an ethnic group as part of a systematic attack against that ethnic group” is a crime against humanity. Ultimately, the women in the detention center have a number of ways to ensure recourse against US officials, but do face significant challenges if suing in United States courts.
Rachel Treisman, Whistleblower Alleges ‘Medical Neglect,’ Questionable Hysterectomies of ICE Detainees, NPR, Sept. 16, 2020, https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.
International Human Rights Clinic, Forced Sterilization, United Nations, https://lawguides.scu.edu/c.php?g=5744&p=2559362.
Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978).
Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000).
Kenneth Juan Figueroa, Immigrants and The Civil Rights Regime: Parents Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 Colum. L. Rev.408 (2002).
The Alien Tort Statute, The Center for Justice and Accountability, https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/.
Sexual Violence as International Crime, Human Rights Watch, https://www.hrw.org/legacy/campaigns/kosovo98/seviolence.shtml#:~:text=The%20statute’s%20definition%20of%20crimes,sexual%20violence%20of%20comparable%20gravity.%22.
Forced Sterilization, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/enforced_sterilization#:~:text=Primary%20tabs,of%20the%20International%20Criminal%20Court.