The Covid-19 pandemic as a global natural disaster and the kaleidoscope of international legal strategies

La pandemia de Covid-19 como desastre natural global y el caleidoscopio de estrategias jurídicas internacionales

DOI: 10.19135/revista.consinter.00019.02

Received/Recebido 14/05/2024 – Approved/Aprovado 29/08/2024

Raquel Torres Gontijo[1] – https://orcid.org/0000-0001-7516-2918

Deilton Ribeiro Brasil[2] – http://orcid.org/0000-0001-7268-8009

Elena E. Gulyaeva[3] – https://orcid.org/0009-0002-2708-8332

Abstract

The paper aims to examine the pandemic caused by Covid-19 as a global natural disaster under the framework of the International laws focusing its worldwide concern. The research seeks to answer the following problem question: can the Covid-19 pandemic be classified as a global natural disaster? If it is positive, the regulatory standards of international law could be applied due to the humanitarian emergency? The method used was the deductive for the construction of theoretical debate related to dogmatic concepts related to the issue. Regarding the results, the research makes a general conclusion about the possibility of considering the Covid-19 pandemic as a global natural disaster due to its potential impacts under International regulatory laws as a plausible alternative in the quest for an effective solution.

Keywords: International law. Disaster law. Pandemic. COVID-19. Humanitarian emergency.

Resumen

El artículo tiene como objetivo examinar la pandemia causada por Covid-19 como un desastre natural global en el marco del derecho internacional centrando su preocupación a nivel mundial. La investigación busca responder a la siguiente pregunta problemática: ¿se puede clasificar la pandemia de Covid-19 como un desastre natural global? ¿De ser positivo se podrían aplicar los estándares normativos del derecho internacional debido a la emergencia humanitaria? El método utilizado fue el deductivo para la construcción del debate teórico relacionado con conceptos dogmáticos relacionados con el tema. Respecto a los resultados, la investigación llega a una conclusión general sobre la posibilidad de considerar la pandemia de Covid-19 como un desastre natural global debido a sus potenciales impactos bajo las leyes regulatorias internacionales como una alternativa plausible en la búsqueda de una solución efectiva.

Palabras-Clave: Derecho internacional. Ley de desastres. Pandemia. COVID-19. Emergencia humanitaria.

Summary: 1. Introduction. 2. Classification of the Covid-19 pandemic as a global natural disaster. 3. Some considerations on the anthropocene and disasters: collapse of the distinction between human and natural disasters. 4. Disruptions stemming from the Covid-19 pandemic are a focal point within the realm of International Law. 5. In lieu of a conclusion. 6. References.

1  INTRODUCTION

The current historical moment is characterized by instabilities, insecurities, and uncertainties. The Covid-19 has spread worldwide in different ways and proportions. According to Hathaway et al. (2020)[4], the pandemic has spread rapidly, causing devastating consequences of various dimensions and categories in various parts of the world.

On January 30, 2020, the World Health Organization's Emergency Committee, based on the International Health Regulations[5] (IHR), declared the acute respiratory disease Covid-19 a public health emergency of international concern (Lee, 2020). On March 11 of the same year, the World Health Organization (WHO) declared the new outbreak of severe acute respiratory syndrome coronavirus (SARS-CoV-2) a global pandemic. The WHO[6] Coronavirus Panel reports that the number of confirmed cases of Covid-19 is over 194 million, with deaths surpassing the 4 million mark. Recent weekly operational updates on Covid-19 reinforce the mentioned data[7]. The United Nations Development Programe[8] (UNDP) warns that the Covid-19 pandemic shakes the very foundations of current societies, exposing inequalities, weakened health and social security systems, and digital exclusion. Additionally, in many parts of the world, there has been an intensification of conflicts and instabilities, leading to incalculable human suffering and record numbers of forced displacement (UNDP, 2020). Corroborating the above elements, the United Nations (2021) reiterates that “the transmission of diseases such as Covid-19 between animals and humans (zoonoses) threatens economic development, animal and human well-being, and ecosystem integrity”.

2  CLASSIFICATION OF THE COVID-19 PANDEMIC AS A GLOBAL NATURAL DISASTER

Disasters are often considered uncommon events that do not belong to normal life. However, in reality, according to the United Nations Office for Disaster Risk Reduction (UNDRR, 1992), the opposite is true. Disasters and emergencies are parts of everyday life. They are not rare events but rather common occurrences. The impacts of disasters are exacerbated by the ways societies are structured (politically, economically, and socially), modes of interaction, and the structures that underpin relationships among decision-makers. Almost daily, somewhere in the world, a disaster occurs. Many of these events are small in scope, with their effects managed using local resources. However, some exceed the local response capacity of governments, public health systems, and relief organizations. These are the disasters that require international assistance, characterizing a humanitarian emergency situation (Anderson, 2018).

Primarily, disasters are classified as either natural or human-made[9]. A distinct categorization considers disasters as immediate (sudden onset) or slowly unfolding (slow onset). Mark Anderson & Michael Gerber (2018) explain that disasters are triggered by natural forces or events perpetrated by humans. They add that natural disasters include events that occur suddenly, without warning signs, such as earthquakes, floods, tropical storms, tsunamis, volcanic eruptions, and landslides (considered sudden onset disasters)[10]; while others develop slowly, with their full impact not felt for years (encompassing droughts, famine, environmental degradation, deforestation, and pest infestations). Thus, disasters are classified into two main categories, natural and human-made, and five subcategories: sudden onset disasters, slow onset risks, technological and industrial events, epidemics, and complex emergencies.

Multiple concepts of disasters are pointed out. However, in the multilevel disaster protection system[11], there is a lack of a uniform or standardized definition, of general scope, of the meaning and extent of the word "disaster." UNDRR defines a disaster as a severe disruption of the functioning of a community or society at any scale due to hazardous events interacting with exposure, vulnerability, and capacity conditions, leading to one or more of the following consequences: human, material, economic, and environmental losses and impacts.

For the Pan American Health Organization[12] (PAHO), a disaster is a “natural phenomenon or caused by human action, which produces a massive disruption in the health services system, characterizing such a great and immediate threat to public health that the affected country requires external assistance to address the situation”.

The Brazilian Civil Defense considers a disaster a phenomenon “resulting from adverse events, natural or human-made, affecting a vulnerable population, causing human, material, and environmental damage and consequent economic and social losses” (RFB, 2000). The International Law Commission (ILC), in the draft articles on the protection of persons in the event of disasters (Article 3), defines a disaster as “a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale environmental or material damage, seriously compromising the functioning of society”.

Krum & Bandeira (2008) argue that natural disasters should be perceived as a violation of the balance of the system as a whole, considering both the individual within the group and the group itself. An integrated understanding of this experience cannot do without a social perspective on how its victims face such a phenomenon (Gomes & Cavalcante, 2012).

Notwithstanding the lack of a consolidated definition, common elements are found in the presented concepts. Therefore, a disaster: 1) results from a hazardous event; 2) interacts with exposure, vulnerability, and capacity conditions; 3) causes disruptive consequences sufficient to affect the normal functioning of a society (human, material, economic, and/or environmental losses and impacts). It should be noted that if the affected society is unable to cope with the implications using its own resources and requires international support, a humanitarian emergency situation is identified.

Epidemics or disease outbreaks are natural phenomena with different modes of transmission (water, food, vectors, personal contact) that can escalate into disasters[13], as well as situations of humanitarian emergency[14]. Complex humanitarian emergencies result from the interaction of various factors. Any disaster, whether natural or human-made, has the potential to transform into a complex humanitarian emergency. When international support is essential to address fundamental needs of the affected population, a complex humanitarian emergency is identified[15].

According to the UN, a complex humanitarian emergency is a major multicausal crisis (caused by multiple factors)[16] that requires a response from the entire system. It often necessitates the combination of medium and long-term policies, conflict resolution mechanisms, and peacekeeping operations. Indeed, there is a two-way correlation. The repercussions of natural disasters are exacerbated by existing instabilities and fragilities and, simultaneously, can trigger and/or amplify vulnerabilities and imbalances, leading to conflicts, precariousness, and situations of complex humanitarian emergencies.

The Covid-19 pandemic has generated a multidimensional crisis, affecting public health, the economy, social aspects, as well as human rights protection (UNDRR, 2021). Indeed, the current pandemic is considered a natural disaster (and a catastrophe of massive proportions) with disruptive consequences sufficient to affect the normal functioning of the entire global society. Simultaneously, with the identified need for international support, the situation is also classified as a complex humanitarian emergency.

On January 30, 2020, the World Health Organization's Emergency Committee, based on the International Health Regulations (IHR), declared the acute respiratory disease Covid-19 a public health emergency of international concern (Lee, 2020). In turn, Délton Winter de Carvalho (2020) notes that it is inevitable to consider the pandemic caused by the new coronavirus as a true disaster, triggering systemic social destabilization.

In the United States of America, throughout the past year, civil litigants sought rulings from various courts on a specific question: Is Covid-19 a natural disaster? In at least three cases, the answer was a resounding yes (JDSUPRA, 2021). The Supreme Court of Pennsylvania (2020) asserted[17]  and reiterated[18] that "the Covid-19 pandemic is, by all definitions, a natural disaster and a catastrophe of massive proportions." Similarly, the Southern District Court of New York[19] held it undeniable that the Covid-19 pandemic is a natural disaster[20].

Analyzing the DeVito case, Crowel & Moring (2020) explain that the Emergency Code of the state of Pennsylvania describes a natural disaster as any hurricane, tornado, storm, flood, waters driven by wind, tidal wave, earthquake, landslide or mudslide, snowstorm, drought, fire, explosion, or other catastrophes resulting in substantial damage to property, adversity, suffering, or possible loss of life.

In the DeVito case, the issue revolved around qualifying a viral disease (Covid-19) as "of the same nature or general class" as the types of catastrophes listed in the definition of "natural disaster," in order to fall under the category of "other catastrophes." They report that the court affirmed this, stating that by establishing a specific list and then adding the language "or other catastrophe resulting in substantial damage to property, privations, suffering, or possible loss of life," the intent of the law is to expand the scenarios of disasters qualifying as "natural disasters". The court concluded that the "Covid-19 pandemic is, by all definitions, a natural disaster and a catastrophe of massive proportions”.

In September 2020, in the case Pennsylvania Democratic Party v. Boockvar, the Supreme Court of Pennsylvania, citing the DeVito case, reiterated that the coronavirus pandemic constitutes a natural disaster, declaring no hesitation in again[21] concluding that the ongoing Covid-19 pandemic is a natural disaster (Fires, 2021).

In the case JN Contemporary Art LLC v. Phillips Auctioneers LLC, the Southern District Court of New York held that "it cannot be seriously contested that the Covid-19 pandemic is a natural disaster" and that, according to New York law, the pandemic falls under the term "natural disaster" and, therefore, within the scope of the force majeure provision that allows the termination of a contract as a "result of a natural disaster." The court sought strong support in the definitions from Black's Law Dictionary of "natural" ("caused by nature as opposed to artificial means") and "disaster" ("calamity; catastrophic emergency"). Nussbaum (2020) notes that the court based the decision on various other sources, finding support also in the decisions of the Supreme Court of Pennsylvania to conclude that the Covid-19 pandemic is a natural disaster. Additionally, it pointed to the "declaration of a major disaster" by the President of the United States, under the Stafford Act (which defines "major disaster" as including "any natural catastrophe")[22].

It is noteworthy that in other cases where the courts did not delve into the study of the meaning of the term "natural disaster," they did not actually seek to distinguish between the origin of the virus (coined by natural forces) and the consequences of uncontrolled transmission (certainly exacerbated by the acts and decisions of human beings) (Nussbaum, 2020).

In the current situation, it is imperative to emphasize the disruptive consequences brought about by the pandemic, which notably affect the normal functioning of global society in various dimensions, causing human, material, economic, environmental losses, as well as uncertainties, insecurities[23], instabilities, intensified conflicts, exacerbated poverty, and increased hunger[24], among other impacts.

3  SOME CONSIDERATIONS ON THE ANTHROPOCENE AND DISASTERS: COLLAPSE OF THE DISTINCTION BETWEEN HUMAN AND NATURAL DISASTERS

Despite the foundations and arguments woven above regarding the classification of the pandemic caused by Covid-19 as a natural disaster, it is crucial to highlight the trend towards the collapse of the distinction between human and natural disasters in the period called the Anthropocene[25].

Indeed, due to the extent and complexity of events in the Anthropocene era[26], originated and fueled by various social and ecological factors[27], the absolute differentiation between disasters caused by humans and those not caused by humans becomes intangible. It is a scientific observation that, in the Anthropocene, the Earth's environmental systems are pushed beyond planetary boundaries that constitute the safe operating space for human civilization. The "great acceleration" after the end of World War II, the increase in greenhouse gases, ocean acidification, loss of biodiversity, and anthropogenic climate change-induced global warming are defining episodes of the beginning of the Anthropocene, which increase the frequency of extreme weather events[28] and pandemics.

In the Anthropocene, humanity causes global environmental changes that elevate the occurrence of some "natural" disasters, such as extreme climate change and pandemics. Thus, zoonotic diseases, such as Covid-19, are often related to environmental changes and imbalances[29]. In this context, as elucidated by Bioemfoco (2018), the connectivity of current society directly affects how people, animals, and the environment interact, providing greater opportunities for the transmission of zoonotic diseases. It becomes imperative to effectively apply the concept of One Health[30] to protect people and animals and to prevent potential economic, political, and social disruptions[31]. In this context, the Director-General of the World Organization for Animal Health,  Monique Éloit, notes that "the Covid-19 pandemic is a clear warning that collaboration between sectors is absolutely essential for global health." Heiko Maas, the German Minister of Foreign Affairs, adds that Covid-19 painfully reminds us that the health of humans, animals, and the environment worldwide is closely interconnected. It emphasizes the need to keep in mind, to prevent future pandemics, that "no one is safe until everyone is safe" (UNEP, 2021).

The variety, unpredictability, and intensity of events underscore the importance of strengthening disaster risk governance for prevention, mitigation, preparation, response, and recovery (Mizutori, 2018). They also highlight the need for the adoption of effective concrete public policies, the implementation of new multidisciplinary approaches (such as the One Health procedure, for example), coordination and interaction between relevant sectors, and joint action and cooperation by various international actors.

4  DISRUPTIONS STEMMING FROM THE COVID-19 PANDEMIC ARE A FOCAL POINT WITHIN THE REALM OF INTERNATIONAL LAW

The Covid-19 pandemic constitutes a global natural disaster and a complex humanitarian emergency, considering that it: triggers a crisis of multiple aspects, proportions, and dimensions; brings about disruptive consequences significant enough to upset and affect the normal functioning of the entire global society and necessitates paramount international support.

International coordination on pandemics is managed by the World Health Organization (WHO) and the United Nations Office for the Coordination of Humanitarian Affairs. For these agencies, the current situation is considered a "public health emergency of international concern." In this context, it is important to highlight that the pandemic implicates various realms of international law.

From the outset, international law proves fundamental to the global response to the pandemic. International law required states to take certain actions to detect and prevent the spread of the novel coronavirus. Some governments responded quickly and effectively, significantly reducing the impact on their populations. Others were not successful, and many exacerbated the situation by responding in ways that heightened the impacts on the most vulnerable populations, thereby violating obligations imposed by international law (Hathaway; Lim, Phillips-Robins & Stevens, 2021). Despite its contributions, there is a clear need for the adaptation, implementation, and strengthening of the international legal system as a tool for prevention, resilience, mitigation, and reparation, allowing humanity to better prepare for the next pandemic (deemed inevitable by scholars in the field). Indeed, humanity's responsiveness to global ecological risk stands as a crucial theme for the fate of the human species.

The project of articles on the protection of persons in the event of disasters by the United Nations International Law Commission[32] (ILC) provides a framework of rights and responsibilities during disasters. While it presents significant deficiencies (gaps and limitations) in the specific context of pandemics, the project of articles provides legal support for the global response to the Covid-19 disaster. It is noteworthy that as a global plan to reduce disaster losses (an essential action for the success of the 2030 Agenda for Sustainable Development), the United Nations Member States adopted the Sendai Framework for Disaster Risk Reduction 2015-2030[33].

In this line of reasoning, one might even arrive at an "efficacy paradox", namely, admitting that the disaster will occur allows it to be avoided or significantly minimized in its effects. In other words, working with the concreteness of the magnitude of the risk and possible damages. This does not imply resignation or a shift of focus solely to the consequences of the disastrous event but serves as a means for the development and adoption of public and private policies capable of implementing preventive and mitigating measures proportional to the levels of probabilities (Carvalho, 2015, p. 90).

Disaster law provides means for managing the risk of vulnerability situations and assessing the potentially devastating effects capable of destabilizing a socio-environmental community (Kokke, 2020, p. 200). A relational concept to Bourdieu (2011, p. 27) allows identifying common traits in disasters, enabling the configuration of a true cycle, a succession of phases that permeate the action of homo faber in society. The cyclical scenario occurs when the "paradox of efficiency" is triggered, initiating an entire preventive and reactive dynamic in the face of a catastrophic event. The law's role is to normatively function and set up institutions to act in the cycle of phases that follow when dealing with an environmental disaster, whether of natural or anthropogenic cause. We can thus speak of a "disaster cycle," implicated in risk management, involving the following stages: a) disaster risk mitigation; b) development of planning and execution of responses to the disaster and emergency situations generated; c) adoption of compensation and stabilization measures and programs; d) reconstruction of affected areas and lives, followed by new panels of execution and mitigation planning, with the reopening of the cycle (Carvalho & Damacena, 2013: 33). An institutional perspective can be added here. The disaster cycle fosters the ratification or restructuring of public and private institutions for an optimization framework in each of the phases (Kokke, 2020, p. 200).

The sequentiality of the cycle requires adaptation of legal measures that can provide a higher degree of effectiveness in each phase so that the legal system enables and streamlines the execution of tasks by agents in scientific or technical areas responsible for implementing abstract planning. In other words, the legal system can allow engineering, health surveillance, medicine, geology, ecology, among other sciences and techniques to act more effectively in potential or realized disaster risk situations (Kokke, 2020, p. 200-201).

Thus, the "stabilization process exercised by the Law must take place without due respect to procedures ending up hindering decision-making processes" (Carvalho, 2015, p. 43). This premise must always be considered in disaster cases, whether in the extrajudicial or judicial sphere. The principle of the provisionality of decisions or adaptability applies here, understood by Carvalho & Damacena (2013, p. 47) and Kokke (2020, p. 201) as the "epistemological realization that the future is uncertain and requires continuous adaptation of precautionary decisions in the management processes of environmental risks".

5  IN LIEU OF A CONCLUSION

The ability of humanity to respond to universal ecological risk is a crucial theme for the fate of the human species. It is essential for international actors to engage in a joint effort[34] to halt the spread of Covid-19, repair damages, restructure global society, and adopt prevention and resilience strategies in the face of the likelihood of similar episodes in the future.

Understanding threats, vulnerabilities, and disaster risks is increasingly necessary to confront these adverse events, mitigating their effects through the construction of a culture of prevention and resilience in communities and the protection of the human rights of affected victims. Therefore, one of the main contemporary challenges is the reduction of vulnerability and the growth of resilience (Mantelli, 2018).

In the light of International Law, international cooperation is imperative for the prevention, preparation, mitigation, and response to disasters. This involves the development of monitoring  systems[35] and health protection capable of detecting and responding to threats of communicable diseases, investments[36] in fundamental health protection infrastructure. Additionally, the duty of States to timely (prompt)[37] and comprehensive (complete) notification to the international community about a pandemic and not hindering[38] international assistance measures that deserves special attention.

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