Infectious diseases constituted the most serious health issue in the world until the beginning of the 20th century when chronic degenerative diseases began to dominate this scenario in developed countries (Barreto, Teixeira & Carmo, 2006, 192). Communicable or infectious disease refers to those that are transmitted from animal to human (or from humans to animals) through direct or indirect contact. These diseases are divided into two categories of lethal and non-lethal. Ebola, HIV, SARS, and Covid-19 are considered among the lethal infections, and some diseases like HSV and Yeast, etc. are known as non-lethal (Forooghi et al., 2015, 127). In the definition of the World Health Organization “Communicable, or infectious diseases, are caused by microorganisms such as bacteria, viruses, parasites and fungi that can be spread, directly or indirectly, from one person to another”, (WHO Africa, 2020). Cholera and plague are among the most severe ones that have caused the death of a huge portion of the European population by far. Today, the threat of infectious diseases is increasingly causing fatalities; “Ebola and Coronavirus are the new instances which are challenging the international health system” (Forooghi et al., 2015, 127).
The outbreak of diseases such as MERS, SARS, and Covid-19 has affected the overall approach of human communities, governments, and international organizations. For instance, in 2003 SARS caused nearly 774 fatalities. Besides this, more than 335 infectious diseases have emerged over the last half-century and there has been the re-emergence of the old infectious diseases which are rapidly increasing in incidence and geographic range (Gostin, 2014, 35). The WHO which considers prevention of infectious diseases among its major tasks has reformed the International Health Regulations, which are instrumental in providing a global framework for the prevention, detection, and assessment of infectious diseases (Zidar, 2015, 505). Coronaviruses are a large family of respiratory diseases that can cause illness ranging from the common cold to the lethal ones, such as SARS (WHO-DONs, 2020). Since the outbreak of SARS in 2003, various types of human Coronaviruses which may cause respiratory infections have been detected around the world (Meyguni, 2013, 49). In December 2019, a cluster of patients exhibited symptoms of viral pneumonia similar to SARS and MERS infections, with connections to a Seafood Market in the Chinese city of Wuhan, Hubei Province. Thereafter cases of an unknown outbreak of pneumonia were reported to the WHO on 31st December 2019. A day later, the seafood market was closed and decontaminated. After extensive speculation about a causative agent, the Chinese Center for Disease Control and Prevention (CDC) confirmed a report by the Wall Street Journal and announced the identification of a novel Covid on 9th January (Gralinski&Menachery, 2020, 2).
Eventually, in March 2020, the WHO declared Covid-19 a global pandemic. Although the initial cases have been associated with the Seafood Market and many reports on social media suggest the snakes, birds and other small mammals including marmots and bats as the probable source of the virus. But the origin of Covid-19 remains unknown despite repeated claims by some high-ranking US officials, including the President and the Secretary of State, that Covid-19 was originated in a lab. However, the Office of Director of National Intelligence (DNI) contradicted reports suggesting that the new coronavirus had been developed by Chinese scientists in a government biological weapons laboratory, and continues that “The Intelligence Community will continue to rigorously examine emerging information and intelligence to determine whether the outbreak began through contact with infected animals or if it was the result of an accident at a laboratory in Wuhan” (Dilanian, Kube & Lee, 2020).
In an attempt to flatten the Covid-19 curve and slow or stop its transmission, governments around the world suspended people’s freedom of movement, placed restrictions on freedom of information, and closed schools, businesses and places of worship all in the name of public safety and some governments also declared a national state of emergency (Emmons, 2020). So far, there have been over 3.5 million fatalities worldwide. This huge amount of personal and financial damage draws the attention of international lawyers to the matter of protection of foreign investment which may become considerably affected by the States’ international commitments to prevent and control infectious diseases. The States being the primary subject of international law are committed to timely cooperate with international organizations in order to prevent and control the spread of diseases. However, these measures are in many cases threatening or at least seriously affecting the interest of foreign investors.
The purpose of this article is to determine the present legal aspects related foreign investments that have suffered losses in the face of the Covid-19 pandemic and the consequent adoption of public health regulations and declaring a state of emergency, and the matter of justifiability of all these measures adopted by the governments. Therefore, it pursues the assumption that the States’ commitment to control the infectious diseases and their implications are imperative and justifiable; although, the legal aspects of investment protection are multidimensional and may differ subject to the matters of law and facts (res facti) in each case.
This article, considering being an interdisciplinary study in humanities, explains the unprecedented economic and investment consequences of this crisis and surveys the legal dimensions of investment protection through a qualitative research methodology and a descriptive-analytical approach.
The major findings of the research are presented in the conclusion; therein this assumption is concluded to be reasonable that the States’ commitment to control the infectious diseases and their implications are imperative and justifiable. However, the legal aspects of investment protection are multidimensional and may differ subject to the matters of law and facts (res facti) in each case. However, the States must assess the legal dimensions of the proposed measures to control Covid-19 against the issue of foreign investment and mechanisms to object to these measures because the margin of appreciation for government measures has to be reasonable and always justifiable. In order to determine this margin, the bases of rulings of various tribunals in similar circumstances (e.g. the claims against Argentina) may be refined and accordingly, the claims and the decisions of various tribunals can be predicted with considerable accuracy.
The exact study and analysis of this exceptional situation of the Covid-19 pandemic depend on determining operation of international courts and tribunals on various dimensions of this issue in the future. The claims (including those against China) need to be proven in courts of law, following a detailed legal investigation and through a fair trial; otherwise, they will carry no legal or judicial weight. The pandemic has faced investors with various challenges in different countries hence, they ought to be vigilant regarding the regulated protections in the IIAs that best suit their case, and among other things the matter of enforceability of provisions and the expiry date of the agreement, although these protections are often retroactive in nature. The accepted definition of the term “Investment” under these instruments and the scope of properties, assets, and corporations that meet the nationality conditions of the relevant IIA, all need to be taken into consideration. The provided mechanisms of dispute resolution and the arbitration clause have a determining role to play in this context. It is to be remembered that the losses suffered by investors must as a general rule, be legally attributable to the acts or omissions of the receiving State, and in the absence of such an attribution, the State concerned may not be legally bound to any form of reparations. However, the overflow of these claims and invocation of legal and customary protections by foreign investors is considered as a serious threat against the receiving States. Therefore, implementing efficient measures has become more evident and in the absence of which governments will be involved by these claims for years ahead, and many investors may challenge the measures undertaken by them to control Covid-19 in various tribunals.
In case, there are no such measures implemented, besides the general and security exceptions mentioned in the IIAs, the States may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from the relevant investment agreement. Other defenses may be made regarding the exceptions to State responsibility including necessity and force majeure which have been the case in the investment disputes against Argentina.
Although few published articles have concentrated on this matter, the important distinction between the right to health and the particular commitment to prevent and control infectious diseases is often overlooked. The issues relating to the right to health mentioned by some of the core human rights instruments, namely the prevention and control of infectious diseases, declaring public safety crisis and, as the case may be, the provision of urgent medical services and declaring a state of national emergency, all deserve to be considered as independent commitments and in other words, subsidiary branches of the right to health that are particularly applicable to circumstances of crisis, emergency and, high urgency. The fulfillment of these commitments may expose the businesses, banking and commercial transactions, and various aspects of society and economy to disruption and damage. The prominent feature of intensity and urgency doesn’t appear to be the case for the rest of the obligations of the right to life. These features of intensity and urgency of pandemics per se may eventually enable the States to invoke the principle of force majeure or other factors precluding the responsibility of the State. Moreover, if we assume that the States are deemed committed to take health measures and to control pandemics only by the virtue of the health regulations, then we have neglected the potential legal role of the well-known principles, such as the No-harm principle, causation, due diligence, etc. Whereas, these customary rules themselves can provide the basis for the responsibility of States toward their citizens, as well as the foreign investors.
. Severe acute respiratory syndrome coronavirus
. Middle East respiratory syndrome coronavirus