by Carla Piffer, Professor of Law, UNIVALI (Brazil) and Paulo Márcio Cruz, Coordinator and Professor of Law, UNIVALI (Brazil)
The novel coronavirus disease (COVID-19) has rapidly spread worldwide. It gained a pandemic status, and is currently affecting, without distinction, the most (and the least) important world powers. We are facing a global public health crisis with unprecedented economic effects. Actually, we fear something that, in fact, cannot be seen.
Since infectious diseases began to have endemic, epidemic, or pandemic characteristics, the bases for combating them started to have fundamentally transnational characteristics from the second half of Modernity. Especially from the beginning of the 20th century, at a time when many cases of infectious diseases began to be registered in the control systems of official health agencies, these facts started to gain visibility through the media, which began to report on the existence of endemics, epidemics, and the consequent risk of pandemics.
These diseases, in some cases, are endemic, i.e., when a certain number of cases occurs historically in a specific region. When this endemic level is overcome, that is, when there is an increase in the historical case curve, it is correct to affirm that there is an outbreak or epidemic. A pandemic outbreak of a disease, incorporated into the medical glossary from the 18th century onwards, being an epidemic of worldwide proportions, is characterized by the emergence of cases in several countries from different continents[i].
This way, it is possible to link the prefix ‘pan’ to the prefix ‘trans’, suggesting the existence of a certain issue, occurrence, or phenomenon between and beyond countries. They are different; however, if we consider that pandemic, as in the case of the present study, indicates the occurrence of cases in numerous places (i.e., deterritorialization), it becomes a transnational phenomenon. Consequently, it should prompt a transnational action, i.e., the two prefixes are complementary, especially when it comes to ‘cause’ (pan) and ‘effect/reaction’ (trans).
The World Health Organization (WHO) was created in 1946, governed by the Constitution of the World Health Organization, in force since April 7th 1948, as a member of the United Nations system, it is one of the most decentralized organizations in the family[ii].
In this context, the UN, through its organizations such as the International Labor Organization, the World Trade Organization, and the WHO, for example, is essentially of transnational character. It provides regulations and guidelines that are internalized by the member states, which, during the decades, began to create a framework of legal rules of transnational nature.
With the development of globalization, transnationality, as a phenomenon, started to be observed in a hyaline way[iii]. As a result, the more the phenomenon is consolidated, the more evident is the need to accept the existence of transnational law. This mechanism has a unique feature, i.e., the untying of the production of autonomous political norms in a fragmented world society, as pointed out by Teubner[iv]. Instead of the hierarchy and unity of Law in the constitutional state, attention is drawn to the heterarchical plurality of legal orders,[v] among them those produced by international organizations.
Consequently, new power and competition relations have been observed, and new factors of incompatibility between the social agents and the state units started to be put to the test on a daily basis, making Law adapt to the new events[vi].
Specifically, with regard to the role of the WHO, the characteristics of transnational agent relating to this organization are evidenced by standardizing health actions and policies worldwide, offering guideline and protocol manuals, advising member countries on the execution of health policies and programs, implementing actions, intervening in the fight against diseases and inequalities that affect the health status of populations, preparing global health reports, and defining their implementation by the health systems of the member states. The production of transnational law in this area becomes evident at the moment when the member states produce their internal regulations based on guidelines issued by the WHO.
For more than a decade, studies on transnationality and transnational law have been conducted in the Stricto Sensu Graduate Program in Legal Science of the University of Vale do Itajaí (UNIVALI), Itajaí, State of Santa Catarina, Brazil. These studies have called attention to the fact that the intense changes occurring in the current risk society also require new political and legal sciences strategies.
As with many phenomena of transnational scope (migration, environment-related issues, crime, economics, etc.), the current COVID-19 pandemic knows no borders, does not respect sovereign states, or world economic powers, and does not differentiate between races or social classes; it simply crosses the territorial boundaries established after the Westphalia Treaty. In addition, it pierces, frightens, and causes the most feared damage, the materialization of the risk of risks, i.e., the loss of thousands and thousands of lives.
Currently, more than before, there is a call for recognition and respect for a world society affected, without distinction, by challenges arising from transnational phenomena―to which the current COVID-19 pandemic is now added.
Transnational law, applied by states based on the WHO guidelines against COVID-19, together with the establishment of urgent planetary action guided by transnational networks of cooperation and solidarity, offers effectiveness and efficiency to new global transnational governance strategies targeted at controlling and combating the current COVID-19 pandemic.
Therefore, this global society affected by transnational problems requires the consolidation of transnational law, initially produced by the WHO guidelines, and oriented by cooperation in solidarity actions. The world market and large transnational companies know that they are able to produce and distribute medical equipment and health materials. Countries that may be less affected, or better prepared to deal with the current pandemic, could send health professionals to those most in need. The global economy, guided by its important agents, could create adequate economic policies, thus contributing to mitigate the economic damage caused, and avoiding numerous social problems. This way, it would be possible to establish the transnational public spaces that society needs.
[i] Rezende, J. M. de. (1998). Epidemia, endemia, pandemia. Epidemiologia. Revista de Patologia Tropical. Vol 27 (1), p. 153-155. Jan-Jun 1998. Available: https://www.revistas.ufg.br/iptsp/article/view/17199. Retrieved: 22nd March 2020. p. 153.
[ii] Godlee, F. (1994). The World Health Organization: WHO in crisis. BMJ – British Medical Journal, 1994, n. 309, pp. 1424-1429. WHO – World Health Organization. Countries. Available at: https://www.who.int/countries/en/. Retrieved: 18th March 2020.
[iii] Piffer, C., & Cruz, P. M. (2018). Manifestações do Direito Transnacional e da Transnacionalidade. In: Piffer, C., Cruz, P. M., & Baldan, G. R. (Org.). Transnacionalidade e sustentabilidade: dificuldades e possibilidades em um mundo em transformação. 1ed. Porto Velho: EMERON, v. 1, pp. 8-27.
[iv] Teubner, G. (2003). A Bukowina Global sobre a Emergência de um Pluralismo Jurídico Transnacional. Impulso, Piracicaba, Vol. 14, No. 33, pp. 9-32, Jan./Apr. 2003.
[v] Teubner, G. The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-determination. In: Nickel, R. (Ed.). Conflict of laws and laws of conflict in Europe and beyond: patterns of supranational and transnational juridification. Oxford: Hart, 2009.
[vi] Piffer, C., & Cruz, P. M. (2020). O direito transnacional e a consolidação de um pluralismo jurídico transnacional. In: Heloise Siqueira Garcia e Paulo Marcio Cruz. (orgs.). Interfaces entre direito e transnacionalidade. 1ed.Itajaí: AICTS, 2020, v. 1, p. 29-42.
Pictures credits: World Health Organization… by United States Mission.