The COVID-19 pandemic has been a phenomenon that has not only ravaged lives and economies, but also shaped the course of laws and policies. Various issues relating to human rights, labour matters, intellectual property and more have emerged, of which several legal regimes across the globe did not anticipate. 

 

Professor Dire Tladi of the University of Pretoria (UP) was recently interviewed by Nigerian publication Legal Pages about his role at the University and his work as a member of the Institut de Droit International’s Commission on Pandemics and International Law. He shared his professional experience, his thoughts about the role of international law during this time and more. 

 

 

I actually started my career in academia. In 1997, after completing my first law degree – this was in the years when an LLB degree in South Africa was preceded by an undergraduate degree – I was offered a junior lecturer position in the Department of Jurisprudence at the University of Pretoria. I stayed in academia until 2006 when I made the move to government as principal state law adviser in the Department of Foreign Affairs (DFA), now the Department of International Relations and Cooperation (DIRCO). 

 

At the time I made the move to DFA, I was an associate professor and briefly head of the Department of Constitutional, International and Indigenous Law at Unisa.  But even at that time, I knew that the move from academia was a temporary one. Academia is home. I left only because I was not satisfied with “book knowledge” of international law. I wanted to go out and experience the making of international law so that it would enrich my teaching and research. I hoped, of course, that in the process I would also contribute to the achievement of my country’s foreign policy and the betterment of my continent. And I think I did that. In the eight years that I spent at DFA/DIRCO, I was immensely privileged. Here are just a few of the things I was involved in that I can think of off the top of my head:

 

- I was South Africa’s chief negotiator for several treaties, including the 2008 Statute of the Merged African Court (African Court of Justice and Human Rights) and the Nagoya Kuala Lumpur Protocol on Biosafety.

 

- I was the lawyer on the team charged with making the case for the extension of South Africa’s continental shelf (the landmass below the ocean).

 

- I was the legal adviser of South Africa’s Permanent Mission to the United Nations in New York (2009-2013) including during our second tenure on the UN Security Council and was intimately involved in many history-making moments, including the Libya and Côte d’Ivoire resolutions (whether the history being made was good is a different story). 

 

- I played a small part in moving the United Nations towards negotiating a new treaty on the law of the sea – a process that is ongoing and which I still follow even though I no longer work for the government.

 

And I did okay during my time in government, and to this day, I am still asked to be involved in different UN and other political processes. Again to name a few examples that immediately come to mind:

 

- At the beginning of July, I was asked to serve as expert adviser on international law in the trilateral negotiations between Egypt, Ethiopia and Sudan on the Grand Ethiopia Renaissance Dam.

 

- As soon as I left government, I was invited to join a team of international lawyers advising former Presidents Mbeki, Chissano and Mogae in mediating the Malawi-Tanzania border dispute. 

 

- I have served as special adviser to SA’s then foreign minister, Minister Nkoana-Mashabane.

 

- I remain an adviser to the African group of states on the law of the sea treaty that is being negotiated and am often requested to facilitate informal discussions.

 

But home is home. And I knew the time to come back home would come someday. In 2013 the itch came and it came hard. I had gained experience in the international arena. My knowledge of international law, not just book knowledge. I knew it was time to come back home. So I made the jump back to my original home, the University of Pretoria.

 

 

I love that campus. UP has one of the best campuses in the world. In fact, until not so long ago I used to say it has the best campus I have ever been on, but I saw one recently that is more beautiful, but only just. 

 

I teach only at postgraduate level, and there the interaction with students can be fascinating. We have some really excellent students, and it is a joy to watch them grapple with the concepts and challenge their perceptions about law and the correctness of dominant narratives.

 

 

No. I don’t think these rankings are a statement of the quality of legal education. But before elaborating, let me say that there are many different rankings. According to the Times Higher Education rankings of law faculties in 2020, the University of Cape Town is ranked number 77 and the University of Pretoria is ranked one spot higher, at number 76. Both of those are higher than some top well-resourced universities like the University of Leeds, University of California Irvine, University of Zurich and others.

 

That said, the question still stands. That is still only two universities out of how many? I would say there are several factors to consider:

 

- The top 100 is really elite. Depending on the ranking, there might be more African law faculties in the top 200 or 300, and given how many law faculties there are in the world, this is nothing to be embarrassed about.

 

- A lot of this has to do with resources. The best-resourced schools attract the best students and the best faculties, and that makes it hard for Africa law faculties to compete.

 

- Rankings are what they are. It is good to look at them (especially when they say you are ranked number 76), but in the end, there is a lot of subjectivity and they are influenced by a lot more than quality.

 

- One gauge is moot courts. The University of Pretoria’s Centre for Human Rights, together with the UN, hosts an annual Nelson Mandela Moot Court in Geneva, in which participants from top schools (read schools with the best reputations) participate. While I have only anecdotal evidence, I think there is often an African university in the finals (and not South African, by the way).  

 

 

This is a tough question. My views have evolved as have got closer to the ICC, and perhaps even entered its belly. I think the idea of an international criminal court to try those most responsible for heinous crimes is irreproachable. And for the most part, the ICC fits the bill for a court to do that.

 

Yet, as you say, all the indictees of this court are African. The last time I checked, there had been more than 44 people indicted in total and not a single one was not African. The court and those that adopt blind loyalty will offer a number of justifications: 

 

(i) most of the African situations were self-referrals;

(ii) the most atrocity crimes are on the continent so it makes sense that most of the cases would be on the continent;

(iii) the ICC does not enjoy jurisdiction in the other situations in which the atrocity crimes are being committed.

 

I do not want to bore the readers with technical details that I address in some academic articles, but while there is some truth to these propositions, there is also a lot of obfuscation. To give you an example, point two suggests that most of the prosecuted are from the continent, whereas the truth is that all of the prosecuted are from the continent. To point three, the ICC does enjoy jurisdiction in many situations that it has simply feared opening up investigations in. 

 

The Office of the Prosecutor has now been given the green light to open investigations into the situation in Afghanistan where there have been countless reports by Human Rights Watch and Amnesty International concerning war crimes, including bombings of schools and clinics. We should all be pleased and jump for joy that perhaps prosecutions will occur, but we should also ask ourselves why it has taken nearly 15 years to open investigations. That situation has been under what the Office of the Prosecutor calls preliminary analysis since 2006 or thereabouts. 

 

To put this into context, on 26 February 2011, the UN Security Council referred the situation in Libya to the ICC. By the end of March of that year, not only had investigations been initiated, but there was a full docket with three indictees. In Libya, it took several weeks to investigate and indict. In Afghanistan, the ICC needed close to 15? Only the most naive of us will believe that it has nothing to do with the fear of reprisals from the big powers. I can make the same point about the situation in Palestine – but I will save that for another day.

 

I have said all of this, and I have not even mentioned the role of the UN Security Council in meddling with justice and tilting the scales against the less powerful, and removing the blindfold so that Lady Justice knows where to point her sword. 

 

All of this said, however, it is the case that there are too many atrocity crimes on our continent. Whatever the inequities of the system, as Africans we have a responsibility to end the cycle of violence that has engulfed our continent and has stolen the innocence of so many of our men, women and children. The flaws of the ICC do not explain why on some parts of our continents, brothers are killing brothers, raping and maiming our sisters.  

 

 

I love fiction; I have always wanted to write fiction. Blood in the Sand of Justice was not my first attempt. I’d had several failed attempts – which is to say, I would start a novel but halfway I would realise it wasn’t working. The best advice I ever got, from accomplished South African novelist Deon Meyer, was to “write about what you know!” And I knew about international law, I knew about the ICC, so I wove Blood in the Sand of Justice around the ICC. It is about a disgraced former deputy prosecutor of the ICC who has a chance of redemption when he is asked to investigate the assassination of the ICC prosecutor. The novel is a roller-coaster ride, where his personal life, the politics of the ICC and the search for the assassin(s) are thrown into the crucible. 

 

 

The work of the UN International Law Commission is concerned with progressive development and codification of international law. In respect of peremptory norms, the work of the commission is intended to clarify the method by which peremptory norms are identified and the consequences for a norm having such a status. Today, peremptory norms are often invoked in a variety of situations, and yet there isn’t a single understanding of the methodology for identifying and adopting peremptoriness. I hope the work of the commission will be a good resource for lawyers, courts and states when addressing issues of peremptory norms. 

 

So far, I have prepared four reports between 2016 and 2019. Based on those reports, the ILC adopted on first reading a set of 23 draft conclusions on the identification and legal consequences of peremptory norms in international law. The draft conclusions have been transmitted to states for comments; once those comments are received, the commission will look to adopt a final set of conclusions.

 

 

The Institut de Droit International has a similar mandate as that of the ILC, with the exception that it is a private entity and not an organ of the UN.

 

In March of year, the IDI decided to set up a commission to study pandemics and international law, and to appoint Shinya Murase of Japan as the rapporteur for that topic. I was honoured to be invited to serve on this commission together with several other excellent international lawyers.

 

Before addressing your question, let me say something about the topic itself. The Institut de Droit established a commission to deal with pandemics. The commission, however, has decided to broaden its scope to deal with epidemics more generally. I agree with that decision but for convenience, I will continue to refer to it as the Commission on Pandemics.

 

To address one part of your question, I do not see the role of this commission as being to address issues arising from COVID-19, i.e. this particular pandemic. I must stress that this is my view and not that of every member of the commission. The link between COVID-19 and the work of this commission is, for me, two-fold:

 

(i) COVID-19 made us realise that the rules of international law relating to pandemics are incoherent and in need of greater coherence and systematisation; 

(ii) the practice of states (and possibly other entities) in addressing this pandemic will help the commission in its codification efforts.

 

This means that I do not see whatever rules we might come up with as being directed at resolving any issues from the pandemic. I pause to mention that I have been slightly embarrassed by the attention this commission (and my appointment to it) has garnered, because there is almost this expectation that the commission will help with COVID-19. It will not.

 

What our work might do, is to address issues that could arise in relation to future pandemics. There is an important consequence that flows from this. I believe that our work has to be deliberate, thoughtful and systematic in order to produce a good-quality product that will make a meaningful contribution to international law for decades to come. 

 

That was the preface to the question. Now to address the more substantive part of your question – the objectives of the commission.

 

The objective of the commission is to try to make sense of the patchwork of rules that could apply in cases of pandemics. By now, everyone knows that the World Health Organisation has a set of regulations, the International Health Regulations. Yet these regulations are not dispositive of all issues that confront the international community in times of pandemics. To find answers to some of these questions, you have to go to different areas of law that were developed not with pandemics in mind. It is these other rules that I refer to when I say a patchwork of rules. This patchwork of rules might or might not be coherent or consistent. 

 

The first function of the commission would be to assess the coherence and consistency of the patchwork of rules. Secondly – where there are incoherence and inconsistency, or where rules that are applicable in normal times do not adequately account for circumstances of pandemics – to craft rules that promote coherence and consistency, and that are fit to address situations of pandemics. Finally, to systematise these rules and present to the states and other entities a comprehensive set of provisions that could either become a treaty or that simply constitutes a statement on the state of international law.

 

 

We have thus far received three substantive reports and a preliminary report from the rapporteur – Shinya Murase is very hardworking and it is not surprising that in this short space of time, he has been able to churn out such extensive reports. In the three substantive reports, the rapporteur has proposed a full set of 24 draft articles, and members have had the opportunity to comment on these – needless to say, my view that we need to be more deliberate, thoughtful and systematic has not won the day. I have yet to study the third report, but have provided comments on the first two reports, and the 14 draft articles contained therein.

 

On the text itself, given that we are still working on the text, I think I am not at liberty to share the content, but I can comment at a general level.

 

What do they cover? Everything under the sun, including rules on state responsibility and the responsibility of international organisations, the relationship between health law and trade law, the relationship between health and intellectual property, among many other provisions – it is as comprehensive as can be.

 

Are these draft articles consistent with my ideology? I guess so. Well, they are not inconsistent with my ideology at any rate. The ideology isn’t the problem. The problem is the working methodology, of rushing through the project. The result is a set of draft articles that aren’t as deep or detailed as they might be. This also explains why, by and large, I have not been able to find any draft article that offends me. The real problems would emerge only once we start to go deeper. So in short, as they currently stand, the draft articles have not gone to sufficient depths to reveal the real difficult questions that can arise. On the plus side, the benefits of superficiality are that the broad principles being proposed are likely to be generally agreeable to most commentators – and they are certainly agreeable to me.    

 

 

These are some of the questions that arise. You have listed very good examples. Other examples of human rights being impacted upon are fake news regulations and their impact on freedom of expression and the acceptability of and limits of force by law enforcement to ensure compliance with mandatory quarantines. As a general rule, in times of public emergency, human rights might be limited. Human rights treaties set forth the rule for such limitations, whether in the form of internal limitations of the rights in question, or the rights serving to limit each other or through derogation clauses. There nonetheless remain questions to be answered: given the potentially devastating impacts of pandemics, is there a reason for a larger scope of discretion to authorities when adopting measures that limit human rights? Are the rules, including procedural rules, applicable outside treaty contexts? What are the factors that should be applied in determining whether the limitations of the right in question is justified?

 

There are also, in the context of human rights, socio-economic rights issues that are rarely raised. We often speak about solidarity as the new driving motif for international law, but is it? What extra duties on states are there to make sure that the most vulnerable are cared for? Is there a stronger case to be made for the extraterritorial application of socio-economic rights during times of pandemics? These are important questions of international law. 

 

 

Funny that this is the question that arises the least in the context of pandemics, but it is actually an important one.

 

First and foremost, many of the general principles that one would expect to apply to pandemics emerged from the context of international environmental law. These include principles like the due diligence rule, the duty not to permit territory under one’s control or jurisdiction to be used to cause harm, etc. I can also imagine that principles such as the precautionary principle might easily be adapted to situations of pandemics.

 

Secondly, there is empirically a causal connection between outbreaks and the environment. That means that environmental law has an important role to play in preventing the outbreak of pandemics.

 

Thirdly, our search for vaccines and medicines relies on the environment and manipulation of aspects of biological diversity. There are rules of international law that are relevant to this area. I have already mentioned in response to one of your earlier questions the Nagoya-Kuala Lumpur Protocol. 

 

 

I should begin with a caveat. Intellectual property is not one of my strongest areas, but there is no question that this is a hugely important issue in the context of pandemics. You have asked specifically about ventilators, but often the question is posed in relation to medicines. The issues raised are, however, largely the same. Under normal circumstances, any patents held over the design of a ventilator, or any component thereof, would have to be respected, and the making of ventilators or using any component over which a patent is held would be restricted. 

 

Now a Ministerial Declaration of 2001 under the World Trade Organisation, however, determined that the TRIPS Agreement, which sets out intellectual property protection, “should not prevent members from taking measures to protect health” and that the agreement should be “interpreted and implemented in a manner supportive of WTO members’ right to protect health”. The declaration does not, of course, amount of to jettisoning of the rights in TRIPS in cases of pandemics, because in this declaration, the members also stress that they maintain the commitment to the IP protections in TRIPS. So it might be possible to argue that the manufacture of ventilators to deal with COVID-19 falls under exclusions from patentability under Articles 27(2) and (3) read with the declaration. These are certain issues that the Pandemics Commission could grapple with.

 

 

I try not to second-guess myself. Things always happen for a reason. I have looked back at my life at missed opportunities and found that had those opportunities materialised, I would have missed out on bigger things. So I am pretty content with the decisions I have made and the choices I have made, even those that might seem cringe-worthy right now.

 

 

Easy. Two great loves. The first one, due to age, bad knees and a dearth of talent, I pursue passively: Basketball.

 

The second is fiction writing. Unlike basketball, my lack of talent has not been a deterrent so far, although the people who have read my book (all 10 of them) think it is wonderful. Lots of editorial mistakes they tell me, but a wonderful read. I have just finished a second book, and I am determined that it won’t have any editorial mistakes, and was very lucky when a very meticulous person offered to edit it for me.

 

 

I am actually the most disorganised person I have ever met. I think there is a method to the mess in my life, but I only think that because somehow I manage to get through the things that need to be done. But there are times when I get a headache just thinking of the things that need my attention. 

 

 

The people of this continent need strong leaders to take them out of the abyss of poverty. Lead for them!