The year 2020 was marked by COVID-19, which was declared a pandemic on 11 March 2020 by the World Health Organization (WHO).[1] COVID-19 not only caused millions of deaths around the world, but it impacted almost every aspect of human life, from the world economy to personal freedoms and the right to healthcare.
The Italian Government expressed its stance on several issues related to the pandemic. Firstly, the consequences of COVID-19 have been so serious that it has been speculated that China – the country where the virus originated from – could be held accountable for not having contained the spreading of the disease and timely warned the international community. Secondly, the implementation of measures restrictive of citizens’ liberties in order to limit the spread of the virus has had repercussions on individual rights, especially of vulnerable people. Finally, the development of a vaccine underlined the necessity of a world alliance for its research, production, and distribution in light of the universal value of this medical treatment.
China’s Responsibility Under International Law
On 19 May 2020, a few months after the COVID-19 pandemic’s outbreak, the 73rd World Health Assembly adopted the “COVID-19 response” Resolution, calling for the timely sharing of detailed information and for a joint effort to tackle the spreading of the virus.[2] The EU, including Italy, strongly advocated for committing the WHO to “investigate the origins of the virus and its transmission to humans”.[3] As underlined by the Italian Undersecretary of State for Foreign Affairs and International Cooperation, Mr Manlio Di Stefano, in replying to parliamentary question no. 5-04146 on 11 June 2020 before the Chamber of Deputies,
The Italian Government has expressed, in all appropriate international fora and on all occasions, its position in favor of maximum transparency and sharing of information about the management of the epidemic.
On 17 June 2020, in addressing another question (no. 4-03498) presented at the Senate, Mr Di Stefano welcomed the abovementioned WHO Resolution, which “expressly recognize[d] the need to launch within a reasonable timeframe a transparent, independent and in-depth analysis of the lessons learnt from the crisis”. The Resolution also requested the WHO Director-General to continue to work closely with international organizations and countries “to identify the zoonotic source of the virus and the route of introduction to the human population […] including through efforts such as scientific and collaborative field missions”. Only on 7 July 2020 the Organization announced that a team of ten WHO experts would have travelled to China to investigate the zoonotic origins of the virus.[4]
One might argue in this respect that even though the aim of the WHO field mission was purely scientific, its findings could possibly be used to invoke China’s responsibility under international law, most likely as a consequence of the country’s delay in sharing information about the disease with other WHO members and its supposed negligence in containing the spread of the pandemic.[5] On this point, Mr Di Stefano, in the abovementioned reply of 11 June 2020, stated that
In contrast to what is argued by some about China having breached its international obligations under the World Health Organization to promptly notify and share information, although this argument can be supported and may be well-founded, some authoritative scholars point out that it may not be possible to find a solid legal basis on which to bring China before an international court, while arbitration would only be an option if China agreed.
As for a possible action taken by Italy in this regard, the Undersecretary added that
the Italian action, as always in these cases, must be in line with the coordinated action by Europe and the World Health Organization, which is the only viable way of – possibly – confronting China with its own responsibilities for its management of the pandemic.
The Discriminatory Impact of Restrictive Measures on Vulnerable Persons
Since the very beginning of the COVID-19 pandemic, the Italian Government has considered the compatibility of restrictive measures with human rights. The Minister of Health, Mr Roberto Speranza, as well as the Undersecretary of State for Health, Ms Sandra Zampa, before the Senate of the Republic (30 January 2020, 186th Meeting, XVIII Legislature) and the Chamber of Deputies (5 March 2020, 316th Meeting, XVIII Legislature), respectively, justified the enforcement of limitations by referring to the principle of precaution, based on the measures’ proportionality to the gravity of the situation acknowledged by the WHO. The same concept was restated by Italy – albeit primarily referred to markets – also through a joint statement at the UN, which maintained that “measures designed to tackle COVID-19, if deemed necessary, must be targeted, proportionate, transparent, and temporary”.[6] In May 2020,[7] the Italian delegation at the UN remarked that
Emergency responses, or measures, must be made in accordance with international law, including human rights law and should be guided by the principles of democracy, rule of law, gender equality, inclusivity and equity. When we come out of this crisis, we must ensure that our standards have not shifted in a negative direction.
[…]
Governments must ensure that international human rights are at the center of all COVID-19 responses and that no one is left behind. Response plans must identify and put in place targeted measures to address the disproportionate impact of the virus on marginalized groups.
Thus, according to Italy, vulnerable categories ought to be taken into account when conceiving and implementing restrictive measures, also bearing in mind that the pandemic engenders a “particular and unique effect on those who face multiple and intersecting forms of discrimination”.[8] Based on governmental statements delivered in multiple fora, such categories include women, migrants, and, more generally, people in conflict situations,[9] but also LGBTI+ persons and persons with disabilities. These people’s needs must be addressed with special care, as restrictions might impede access to necessary medical treatments and have socio-economic consequences which might be de facto discriminatory.
Specifically in relation to persons with disabilities, Italy remarked on multiple occasions that special attention should be paid to their needs in the critical COVID-19 context, and welcomed international political commitments in this regard,[10] such as the UN Secretary-General’s Policy Brief on “A Disability-Inclusive Response to COVID-19”[11] as well as other UN relevant guidance by the WHO[12] or the UN High Commissioner for Human Rights.[13] Moreover, when implementing measures involving this category, Italy stressed the importance of “[m]eaningful consultation [with] and active participation of persons with disabilities and their representative organizations in all stages of the COVID-19 response”[14] – as further remarked by the President of the Italian Republic, Mr Sergio Mattarella, on the International Day of Disabled Persons, on 3 December 2020.[15]
Vaccines as a Universal Good and Their Accessibility
The seriousness of the pandemic made governments soon realize that only world-scale vaccination could eventually stop the spread of the virus and prevent further disastrous consequences on the human and economic levels. The Italian Government has advocated for a global alliance to advance the research of COVID-19 vaccines and guarantee their rapid production and equitable distribution since the very beginning of the pandemic, as recalled at the UN Security Council on 2 July 2020 during the Open Debate on “Pandemics and Security”[16] and on 11 August 2020 during the High Level Open Debate.[17] In particular, Italy has been especially concerned that, once entered into the production stage, the vaccine be accessible also to developing countries and that the EU take the initiative to ensure its large-scale distribution also outside Europe, as underlined by the President of the Council of Ministers, Mr Giuseppe Conte, before the Chamber of Deputies on 14 October 2020 (408th Meeting, XVIII Legislature).
In fact, securing a fair distribution of life-saving vaccines to countries in need had been on the agenda of Italian Governments for several years even before the COVID-19 emergency. For instance, Italy has been financially supporting the Global Alliance for Vaccines and Immunization since 2006[18] and the Coalition for Epidemic Preparedness Innovations since its launch in 2017.[19] Together with the WHO and UNICEF, these two projects established in April 2020 the COVID-19 Vaccines Global Access (COVAX) alliance to buy doses for distribution to developing countries.[20]
The purchase of vaccines and their free supply to low-income States is one option available to industrialized countries to ensure that access to these and other life-saving treatments be “fair”,[21] “universal” and “equitable”,[22] as Italy has repeatedly affirmed it must be. This conviction may find its basis in the qualification – whose legal nature and consequences are unclear – of vaccines as a common good. This was affirmed by the Italian Parliament with Motion no. 1-00353, approved by the Chamber of Deputies on 5 August 2020 (387th Meeting, XVIII Legislature), which
commits the government: […] to support, also in the competent international fora, the need to pool research for the development of a safe and effective vaccine against COVID-19, to be considered as a global public good and accessible to all.
In September 2020, the President of the Council of Ministers declared before the UN General Assembly[23] that
Italy considers these [vaccines] to be global public goods, with the objective of leaving no one behind. […] [H]ealth is a common, inalienable good, and as such, it must be guaranteed for every woman and every man on the Planet.
Mr Conte also said that
Italy now pursues an approach inspired by the “ethics of vulnerability”, which calls on all members of the international community to assume their share of collective responsibility for “global public goods”, such as fundamental human rights, health, education, sustainability, social and institutional resilience.
When it comes to understanding the meaning of the qualification of vaccines as global public goods, the Italian position appears fluctuating. Still on 10-11 March 2021, Italy had refused to endorse – along with many other developed countries – the temporary waiver[24] of patent rights for vaccines tabled by India and South Africa at the World Trade Organization (WTO) in October 2020 and supported by over 80 developing countries.[25] Waiving the rules of the WTO-covered Agreement on Trade-Related Aspects of Intellectual Property would have brought, according to the proponents, to an increased production of vaccines by allowing generic manufacturers to enter the market. However, after the United States’ U-turn of 5 May 2021, when the Biden Administration declared to support the waiver, the Italian Government appeared to follow suit. On 6 May, the new President of the Council of Ministers, Mr Mario Draghi, reiterated that “vaccines are a global common good” and labelled “the striking down of obstacles hindering vaccination campaigns” a priority. The same day, the Minister of Health welcomed President Biden’s move on “free access for everyone to vaccine patents”, defining it “an important step forward”.[26] Yet, in the subsequent few days Mr Draghi reportedly took inconsistent stances, by both expressly approving the US Administration’s move and, soon thereafter, showing a more tepid attitude.[27]
Beatrice Bono
A quotable version of this post was published in the Italian Yearbook of International Law: Bono, “Responsibility for the Spread of COVID-19 and Socio-economic Concerns in the Fight Against the Pandemic”, IYIL XXX (2020), 2021, pp. 528-534; available here.
[1] WHO, “WHO Director-General’s opening remarks at the media briefing on COVID-19”, 11 March 2020.
[2] 73th World Health Assembly, COVID-19 response, WHA73.1, 19 May 2020.
[3] As reported by the Deputy Minister for Foreign Affairs and International Cooperation, Ms Emanuela Del Re, on 6 May 2020 before the Commission on Foreign and European Affairs (III) of the Chamber of Deputies.
[4] WHO, “WHO experts to travel to China”, 7 July 2020, available here.
[5] On this issue see, in general, Paparinskis, “COVID-19 Claims and the Law of International Responsibility”, Journal of International Humanitarian Legal Studies, 2020, p. 311 ff.
[6] Joint statement on “Open markets, flow of essential goods and supply chain connectivity” promoted by Italy, Canada, Chile, Egypt, Guyana, Malawi, New Zealand, Singapore, Sweden and Rwanda, 21 May 2021.
[7] Permanent Mission of Italy to the UN, “Italy joins the Statement on the Occasion of the International Day against homophobia, biphobia, interphobia and transphobia”, 18 May 2020.
[8] Ibid.
[9] As stated by the Italian President of the Council of Ministers, Mr Giuseppe Conte, at the UN General Assembly on 25 September 2020 (the text of the speech is available here). Women had already been defined by Italy a vulnerable group at the Security Council on 17 July 2020 (the text of the statement is available here).
[10] Permanent Mission of Italy to the UN, “Italy joins the statement on ‘Disability-inclusive response to COVID-19 – Towards a better future for all’ – A response to the Secretary-General’s Policy Brief”, 18 May 2020.
[11] UN, Policy Brief: A Disability-Inclusive Response to COVID-19, May 2020.
[12] WHO, Disability considerations during the COVID-19 outbreak, 2020.
[13] OHCHR, COVID-19 and the Rights of Personas with Disabilities: Guidance, 19 April 2020.
[14] See supra note 10.
[15] The full text of the statement is available here.
[16] The full text of the statement is available here.
[17] The full text of the statement is available here.
[18] More information on GAVI is available here.
[19] More information on CEPI is available here.
[20] More information on COVAX is available here.
[21] Permanent Mission of Italy to the UN, “18 African and European Leaders, among them Prime Minister Giuseppe Conte, signed an article published on Financial Times”, 15 April 2020.
[22] As affirmed during the High Level Open Debate in August 2020 (see supra note 91) and the Virtual Event on “Shaping a Better World for All: G20 Efforts Under the Presidency of Saudi Arabia During the COVID-19 Pandemic”, 5 November 2020.
[23] Statement by the President of the Council of Ministers of Italy at the 75th Session of the United Nations General Assembly, 25 September 2020, available here.
[24] “Rich countries block push by developing nations to waive COVID vaccine patents”, EURACTIV, 11 March 2021.
[25] The full text of the proposal is available here.
[26] “Joe Biden ‘libera’ i vaccini. Ue pronta a dialogo, Draghi: ‘Abbattere ostacoli’”, Huffington Post, 6 May 2021.
[27] “Brevetti vaccini, Ue aperta alla discussione ma senza entusiasmi. Draghi: ‘Posizione Usa da capire. Questione complessa’”, Il Fatto Quotidiano.
Italy's Diplomatic and Parliamentary Practice on International Law 