This introduction provides an overview of thirteen essays selected in response to a worldwide call for papers for an Agora on “The International Legal Order and the Global Pandemic.” The essays in the Agora consider some of the most pressing challenges, as well as potential opportunities, that COVID-19 is creating for the international legal order. The specific topics addressed include the role of international organizations such as the World Health Organization, state responsibility, human rights, financial regulation, and international trade. Contributors were invited to address the theme from a historical, institutional, doctrinal, normative, critical, or geopolitical perspective, or a mix of perspectives.

The responses of states and the WHO to the COVID-19 pandemic reveal the considerable weaknesses of international organizations. Although the Trump administration has misdiagnosed the WHO's ills, the WHO has indeed failed to meet the public health threat posed by the coronavirus. The WHO's responses to the current crisis demonstrate that it shares five disorders common to other UN system expert-driven organizations: overdependence on states; singular reliance on “managerial” approaches to enforcement; inflexible emergency declarations; absence of regularized systems for inter-regime collaboration; and common bureaucratic pathologies.

In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

This Essay examines a series of paradoxes that have rendered the international legal order's mechanisms for collective action powerless precisely when they are needed most to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding noncitizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

The current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.

In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

This Essay argues that trade agreements may overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. Free trade agreements (FTAs) may exacerbate supply chain concentration, especially through loose rules of origin. And WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for aggressive action only in the face of a crisis. Thus, WTO members risk flouting WTO rules if they do not limit aggressive, preventative supply chain regulation.

The COVID-19 pandemic has been accompanied by shortages and potential shortages of products critical to the public health response. Many nations have responded with export restrictions on these products, restrictions that are permitted under international trade law as a temporary response to short supply conditions generally and to public health emergencies in particular. This Essay argues that such export restrictions are economically counterproductive from a global efficiency perspective, and that governments acting unilaterally will nevertheless employ them due to international externalities that propagate through the “terms of trade.” This observation raises a puzzle as to why international law should facilitate rather than curtail them. The most plausible answer is that legal authority for such measures is a politically necessary “escape clause” in trade agreements, akin to safeguard measures.

The COVID-19 pandemic highlights the importance of the Federal Reserve as a leading actor in global economic governance. As a creature of U.S. domestic law with an international presence and operational independence, the Fed wields authority without a well-defined international legal status, international legal standards to guide its conduct, or accountability to those around the world affected by its decisions. This Essay explores three conceptual approaches that could be used to develop norms, standards, and principles to address this gap.

Any meaningful human rights law approach to COVID-19 must be holistic and recognize the breadth of the challenges to both economic, social, and cultural rights, and civil and political rights. It must be grounded in the threat posed by the disease but also address responses to it, and implicate a wide range of state and nonstate actors. Such an analysis should offer a positive vision of effective global reaction, and counter attempts to hijack rights to oppose legitimate pandemic measures.

While the global pandemic has exposed the fragility of human rights protections, it has also resulted in rights victories for some of the most vulnerable members of society. This Essay examines epistemic, consequentialist, and normative rights reframing efforts that have been mobilized to advocate for and secure human rights during the pandemic through the lens of prisoners’ rights. It argues that these rights seeking strategies hold promise for advancing rights claims of prisoners and other marginalized groups beyond the pandemic.

In this Essay, we analyze two sets of international legal responses to the COVID-19 pandemic: the academic discussion on state responsibility; and the deployment of international law as a tool for resistance. We argue that both approaches made significant contributions but concealed the role of the discipline in the production of the conditions that led to the pandemic and its unequal impact. These interventions reflect a “modest international law”; an understanding of the discipline that hinders change and is ethically weak. We contend that repoliticization can help reclaim international law's ambition and responsibility.

This Essay considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored—creating legal uncertainty. This Essay reviews how pandemics as biological and social events end, considers how international bodies have approached the end of emergencies, and assesses what this might mean for adjudicators deciding on the end of the SARS-Cov-2 pandemic and related public health emergency.

The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty. In this case, the Dutch Supreme Court upheld the lower court's opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate change. Although the Supreme Court recognized that climate change is a consequence of collective human activities that cannot be solved by one state on its own, it held that the Netherlands is individually responsible for failing to do its part to counter the danger of climate change, which, as the Court affirmed, inhibits enjoyment of ECHR rights. In reaching that conclusion, the Supreme Court determined the exact level of greenhouse gas (GHG) emissions reduction that the Netherlands is required to meet to comply with its ECHR obligation, specifically, a 25 percent reduction compared to its 1990 level by the end of 2020.

This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States’ decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States’ criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.

The judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) announced on November 19, 2019 in response to a preliminary reference from the Polish Supreme Court is of fundamental importance for the independence of courts and judges in EU countries, establishing a pillar on which subsequent CJEU decisions have been based. The CJEU concluded that a national court is not an independent and impartial tribunal within the meaning of the European Union (EU) law where the objective circumstances in which that court was formed, its characteristics, and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external interference. In particular, a court may cease to be seen as independent or impartial when it appears to be under the direct or indirect influence of the legislature and/or the executive, or where doubts emerge about their neutrality with respect to the interests before them. Such circumstances threaten the trust that justice in a democratic society must inspire in subjects of the law.

The First Liberian Civil War (1989–1996), in which Charles Taylor's National Patriotic Front of Liberia (NPFL) waged an ultimately successful military campaign to depose President Samuel Doe, was characterized by widespread atrocities. During this period, Agnes Reeves Taylor, known as “The Mother of the Revolution” and at the time Charles Taylor's wife, allegedly committed multiple acts of torture in her capacity as a high-ranking member of the NPFL. After moving to the United Kingdom, Agnes Taylor was charged in 2017 with seven counts of torture and one of conspiracy to commit torture under Section 134 of the UK Criminal Justice Act 1988 (CJA), which domesticates aspects of the UN Convention Against Torture 1984 (CAT) and asserts universal jurisdiction over torture. During the prosecution, a question over a key definitional element of the crime was appealed to the UK Supreme Court (Supreme Court): whether nonstate actors could be liable under the statute, which requires that torture be carried out by a “public official or person acting in an official capacity” (para. 14). The Court gave a qualified answer in the affirmative, holding that this definition includes individuals acting for a nonstate body that exercises control over territory and carries out governmental functions in this territory. As the first apex court decision extending liability for torture to de facto authorities, the Supreme Court decision is likely to have significant jurisprudential influence well beyond the United Kingdom.