Winning pieces of student competition Philosophy and Ethics of International Law 2020

Quarantining the Diamond Princess: An Unethical Solution to COVID-19?

Christina Fernandez*

On 19 February 2020, the people on board the Diamond Princess were finally allowed to disembark in Yokohama, Japan after being quarantined on the vessel for 14 days.  The object of the quarantine was simple: stop the spread of COVID-19, which one of its passengers tested positive for.  However, quarantining those on board effectively backfired, because Diamond Princess produced so many infected people that at one point, it had the second highest number of people testing positive for COVID-19.  So, was quarantine a wise decision for the Diamond Princess?  While quarantine may be considered a legal response to a highly infectious disease, this may not actually be the most ethically sound. 

The International Health Regulation (IHR) defines quarantine as the separation of persons suspected of being ill from others, “in such a manner to prevent the possible spread of an infection.”  Applied to those on board the Diamond Princess, quarantine meant that they were prevented from disembarking because they were suspect of being ill – even if no symptoms were shown – to prevent the possible spread of COVID-19. 

Effectively, the people were detained on the Diamond Princess, a cruise ship ill-equipped to handle the medical situation on board.  The infectious disease was concentrated in one unprepared area.  It put the lives of the people on board at risk.  The quarantine was done to stop the spreading of the disease outside the vessel.  However, by doing so, the people on board were denied protection from COVID-19 – the same protection which those not on the vessel were now enjoying, precisely because of the quarantine. Quarantining in an ill-prepared place is fundamentally exclusionary because those quarantined would be excluded from the protection against the very virus the quarantine seeks to provide.

Moreover, from an ethical perspective, quarantining people on the Diamond Princess was wrong.  If one subscribes to consequentialism, quarantining those on board may seem ethical.  Consequentialism essentially provides that the act which provides good consequences to the most number of people is ethical.  In this instance, quarantining 3,700 people on board and exposing them to the possibility of getting infected on the vessel is better than exposing the entire population of Yokohama to the disease.  Good consequences for more number of people.  But was there no other way to address this issue?

There was.  The more ethical (and legal) solution was isolation – not quarantine.  Isolation is defined by the IHR as the separation of ill persons “from others, in such a manner as to prevent the spread of infection.”  Therefore, only those actually ill or showing symptoms should have been isolated.  This would have offered protection to more people from COVID-19 as those without symptoms would not be unnecessarily exposed to the virus on board.  Thus, even from a consequentialist perspective, quarantining was unethical because there was an alternative which could have produced good consequence for even more people.

Legally speaking, quarantine may also have been a measure that was not necessary or proportional to address the COVID-19.  Yes, it was an option available under the IHR, but it was too extreme, given that there was a valid alternative which could have sufficiently addressed the virus on the Diamond Princess.  Necessity and proportionality are basic principles under international law that have to be taken into account when determining the validity of a particular action.  

Therefore, while quarantining was not necessarily entirely without legal basis, it was invalid and unethical because of the situation on the Diamond Princess.  Between two legally viable options, the more ethical choice should have been made: isolation instead of quarantine.  This is also the valid solution under international law.  If there is another outbreak in the future, one can only hope that a more ethical decision is made to contain the infectious disease from spreading.

Geo-engineering demands an ethical international governance structure

Kevin Keane*

Some climate scientists, financed by Bill Gates and other hyper-wealthy investors, are working on a suite of measures intended to end - or defer significantly - the effects of the climate crisis on humanity. This ‘Get Out of Jail Free’ card of sorts is known as geo-engineering – the deliberate largescale manipulation of the global climate to counteract man-made climate change.

Unsurprisingly, these techno-fixes carry with them unpredictable and potentially catastrophic side effects, if they work at all. Many environmental groups are diametrically opposed to reliance on geo-engineering. They cite a range of pragmatic and ethical concerns in support of their view. In 2015, Friends of the Earth described geo-engineering proposals as ‘mad, bad and dangerous’, and urged polluters to focus their efforts on radical emissions reductions instead.

The alarm of environmental groups in the face of geo-engineering is understandable. On a practical level, the negative consequences of a decision to geo-engineer are stark, and not entirely knowable until it is implemented at scale. These range from ocean acidification to loss of human life: one leading study estimates that geo-engineering may lead to 26,000 premature deaths annually.

There are also very real ethical problems associated with geo-engineering, at every stage of its development. Even entertaining discussions about geo-engineering creates the moral hazard of diluting the urgency of mitigation efforts, due to a false perception that geo-engineering is a fail-safe of sorts, that can save humanity without the need to mitigate at all. The thorniest ethical challenges arise at the implementation stage, however. State consent is the basic premise on which much of international law is built, and since geo-engineering is explicitly intended to have global effect, it would appear that consent of some kind is needed from all States.

It’s highly unlikely that every state on Earth can be convinced to agree on an issue as controversial as geo-engineering. This challenge is made all the more complex by the fact that the negative impacts of geo-engineering – droughts, famines, and more – will necessarily be distributed unequally across the globe. This is both a function of the unpredictable technology, and the reality that the majority of the development of that technology is likely to take place in developed nations. These developed nations, if they choose to implement geo-engineering on behalf of the global community, will face a further ethical quandary: do they seek to evenly distribute those negative effects, possibly to the detriment of their own citizens? Or, do they choose to localize the effects in those states with less capacity to object, thereby developing a form of environmental neo-colonialism?

There is negligible international law in existence that would allay those concerns. The Paris Agreement is silent on geo-engineering, but many view that silence as an implicit acknowledgement that geo-engineering may yet be used. No treaty on geo-engineering exists, and no instrument of international law formally governs the field. If it is the case that some geo-engineering is inevitable, as the IPCC asserts, it is of utmost urgency that international governance rises to meet the ethical challenges it entails. This may involve the conclusion of a new, specialized treaty, or the international community may choose to re-construe existing rules of international law to make them applicable to geo-engineering. Whatever the vehicle for regulation, these legal, practical and ethical questions cannot be ignored.

Psychological torture and the advent of cyber-technologies

Louis Lambrechts*

Widespread misconceptions on torture must be addressed as cyber-technologies allow for new means of psychological violence.

On the 28^th of February, the UN Special Rapporteur on Torture, Nils Melzer, presented his report on psychological torture to the UN Human Rights Council. The report aims at debunking the misconceptions regarding psychological torture, and at offering a clearer legal framework to work with.

A priori, international human rights law is clear: as expressed in article 1 of the UN Convention Against Torture, the definition of torture includes the infliction of severe physical, but also mental pain or suffering. Still, in its common, widespread understanding, torture is perceived as inherently linked to physical harm. Conversely, the mental component has long been misinterpreted, overlooked, but also abused, by States. Psychological torture has the advantage - if one may call it as such – not to leave visible marks, which is why governments have increasingly been researching and using such methods. Famous examples include the British military and the ‘Hooded Men’, or the USA in Guantánamo. More recently, and somehow ironically, Julian Assange (whose website Wikileaks published in 2010 evidence of torture committed by the US army) is also, Melzer and others argue, showing symptoms of being psychologically tortured. Assange is still in London fighting extradition to the US.

With the advent of cyber-technologies, psychological torture is not limited to high-profile cases or infamous prisons anymore. Melzer warns that States, amongst others, now have the capacity to conduct so-called ‘cyber-torture’: psychological torture through cyber-operations. Cyber-torture therefore can target virtually anyone, from a distance, and without leaving visible, physical harm. This is precisely why, as I shall clarify, it is crucial that the general public - for both ethical and legal reasons - understands and recognizes psychological torture correctly.

In her book Epistemic Injustice: Power and the Ethics of Knowing, Miranda Fricker developed her theory of epistemic injustice, that is, injustice related to knowledge. One of the two kinds of epistemic injustice she identifies is what she coined as ‘hermeneutical injustice’. It refers to situations in which ‘prejudicial flaws in shared interpretive resources prevent the subject from making sense of an experience which it is strongly in her interests to render intelligible’. Psychological torture is an example on point: with psychological torture being generally trivialised and misinterpreted as a ‘softer’ form of violence (the ‘prejudicial flaws’), victims may fail to understand it for what it is: genuine, illegal and inhumane torture. Melzer’s concerns therefore, in the light of Fricker’s theory, call for an even higher level of precaution. If cyber-torture may target anyone, and if the general understanding of psychological torture is flawed, then we must address the misinterpretations surrounding torture in order for potential victims to understand their experience for what it is and protect them appropriately. Even more so since the ‘invisible’ nature of psychological torture means that if a victim fails to understand and recognize their own experience as torture, it may be much more difficult to identify it externally.

The need to better address psychological torture as cyber-technologies develop is therefore a clear legal and ethical necessity. Failure to do so would lead to impunity and covert, inhumane treatments which simply cannot be ignored.