The Limited Role of the European Union in the Management and Governance of the COVID-19 Pandemic

Building on two global Symposia hosted by the Verfassungsblog and convened by the author, the 2020 “COVID-19 and States of Emergency” and the 2021 “Power and the COVID-19 Pandemic”, in addition to the findings of the Democracy Reporting International ‘Rule of Law Stress Test’ which surveyed EU Member States’ responses to the pandemic, this article investigates the impact of the pandemic on governance and legal systems within the EU, and evaluates the actions taken by EU institutions and national governments in response to the health crisis against the standards of the rule of law.

Through the Rule of Law Looking Glass

Transposing rule of law principles from the national to the international level, in particular to international organizations, still raises questions and can be problematic. However, rule of law considerations play an important role when international organizations exercise a substantial amount of public authority and may directly affect states as well as individuals. The World Health Organization (WHO), unlike other international organizations, has a constitutional mandate to prevent and respond to international acute emergencies in the form of disease outbreaks and pandemics. Its main normative tool is the 2005 International Health Regulations (IHR), that represent a breakthrough from past instruments but also raise questions and challenges that can be effectively analyzed from a rule of law perspective. This approach applies in particular to ambiguities in important parts of the IHR affecting their relevance and effectiveness; lack of clarity for processes leading to sensitive executive decisions; the absence of compliance assessment mechanisms resulting in lack of accountability for states parties; and an inadequate inclusion of human rights guarantees. The analysis is extended beyond WHO’s functions, to the impact of COVID-19 on the organization’s governance as well as its internal management.

The Rule of Law and Good Governance at the United Nations during the COVID-19 Pandemic

This contribution discusses how the United Nations (UN) adapted to the working conditions under the COVID-19 pandemic while respecting the rule of law and good governance at different levels. The article first examines what the rule of law means in the UN context. On this basis, the article then considers the different COVID-19-related emergency measures taken by the UN with a focus on four of the UN principal organs: the Secretariat, the Security Council, the General Assembly, and the International Court of Justice. Overall, the UN has succeeded in maintaining public trust, including the trust of its member states, in responding to and recovering from the COVID-19 pandemic because it continued to respect standards of good governance and the rule of law during the pandemic. Moreover, the UN has learned important lessons that will allow it to adapt even better to future emergencies.

Ordering Institutions: The Judicial Function of the Permanent Court of International Justice in Relation to Interwar Organizations

The Permanent Court played a vital role in the emergence of the law of international organizations. Existing accounts of this development focus on the Court’s conception of organizations. This paper argues that this interpretation underappreciates the controversy regarding the performance of the Permanent Court’s judicial function and its place within the inter-war institutional order. Crucially, it is claimed that initially the Permanent Court adopted the perspective of an authoritative interpreter, limiting the scope for recognising the autonomy of organizations. However, the Court began to adopt a more restrained conception of its judicial function and recognised that international organizations possessed a form of compétence de la compétence. This recognition paved the way for a ‘law of international organizations’ to emerge, but, crucially, was not based on any revised understanding of what it meant to ‘be’ an international organization, but rather, on what it meant to ‘be’ an international court.

The Role of the WTO in the Global Response to the COVID-19 Pandemic

The WTO and international trade have proven more important than ever during the COVID-19 pandemic. Indeed, without the delivery of food, medicines, masks and vaccines through commerce, the pandemic could not be contained. The WTO basic principles - transparency, non-discrimination, the prohibition against border restrictions, disciplines on subsidies to industrial and agriculture products, to name a few, and in particular the WTO monitoring system have helped countries collaborating and coordinating their actions to contain the pandemic and mitigate trade and global supply chain disruptions on essential goods. In addition, during this crisis, the WTO Secretariat and its Director-General assumed enhanced responsibilities to assist Members with their extraordinary needs. The WTO became the global forum for Members’ coordination of border and internal trade-related actions, for the debate on intellectual property and the request for waiving patent protections on vaccines, while playing an active role in stimulating the expansion of vaccine production capacity in developing countries. This article contends that the response of the WTO has augmented and legitimatized its role as a global governance forum.

Governance Challenges and Opportunities for the International Labour Organization in the Wake of the COVID-19 Pandemic

The International Labour Organization has confronted several governance challenges in the wake of the COVID-19 pandemic. This article looks at the impact of the pandemic on both the internal operations of this unique tripartite UN Specialized Agency and on the ILO’s substantive work on labour market and social protection governance. It explores how international labour standards and their monitoring offer human rights pointers for addressing the crisis. The article highlights interaction (not always coherent) between the ILO and other organizations in connection with COVID-19 and economic recovery. It foreshadows initiatives on how to ‘build back better,’ with the ILO again seeking a strengthened multilateral role in support of its social justice mandate, as informed by resolutions adopted by the International Labour Conference. The article also touches on the pandemic’s impact on the functioning of the ILO Administrative Tribunal, which adjudicates employment disputes for many international organizations.

On the Legitimacy and Effectivity of the World Bank and Its Pandenic Emergency Financing Facility (‘PEF’) at the Time of the covid-19 Outbreak

Pandemic financing has in the current climate of disruption and turmoil of an ongoing global pandemic become the most highly debated and controversial issue within the field of international public health law and policy. From the perspective of international public health law and policy, a precondition for success is that financial resources and funds are employed in an effective manner. Whether the International Bank for Reconstruction and Development (‘World Bank’ or ‘WB’) and the Pandemic Emergency Financing Facility (‘PEF’) – a financing mechanism housed at the WB – may be perceived as effective public health players shall be established by referring to their mandates, their inherent capacity for enhancing accepted global legal standards and rules on public health and their funding methods and practices. After the affirmation and consolidation of its role in the public health sector in the early 1990s, the WB has rapidly accredited itself as the most active intergovernmental institution dealing with pandemic and epidemic financing. Its direct involvement in public health trust funds, such as the Avian Flu Trust Fund Facility and the Health Emergency Preparedness and Response Multi-Donor Fund (the HEPRF), and its lending practices and internal policies and procedures were of crucial significance in this respect. Considering that acceptance of international institutions, including international financial institutions, has always been conditioned by their acknowledgment as legally legitimate, legitimacy is regarded as closely connected to effectiveness. The criteria for establishing legitimacy in relation to international financial institutions are increasingly, amongst others, the respect and promotion of rule of law standards in the recipient states. From this perspective, the WB’s functional and management structures, but not the PEF’s structures and management, have made noteworthy progress, and notwithstanding some deficiencies and peculiarities they present several elements of legitimate decision-making.

In Search of Coherence: Burden and Standard of Proof in International Administrative Law

The authors explore the rules governing the burden and standard of proof in international administrative law, both from a general perspective and in specific contexts such as termination for misconduct, harassment, retaliation, performance and promotions, and service-incurred illnesses. They compare the rules applied by various international administrative tribunals with those applied by courts in domestic jurisdictions. They conclude that some international organizations should review their rules in the interest of coherence, and revert back to a contextualized application of the usual civil standard of proof instead of applying different standards depending on the circumstances.