AN ARGUMENT FOR DEMOCRACY? CORONAVIRUS, THE LAW OF TREATIES AND AUTHORITARIAN GOVERNMENT By Donkor Samuel Asante

The novel Coronavirus (Covid-19) is a flu-like disease that was first detected in Wuhan, China. Today, it is a global pandemic. This narrative could have been different.

Dr. Li Wenliang observed symptoms of a flu-like infection in Wuhan. He quickly cautioned close friends and colleagues of his observations but his warning went viral on the popular Chinese social media platform WeChat. The reaction of the Chinese government to Dr. Li Wenliang’s caution was as a result of the social contract between the people of China and their government. A relationship that is lopsided to secure and entrench the regime of the Chinese Communist Party: an authoritarian government. The Chinese government curtailed, discredited and denied the warnings of Dr. Li Wenliang. Initially, no attempt was made to ascertain the veracity of the claims he made. Four weeks later the Chinese government accepted the reality of Covid-19. But it was too late.

Based on the events that happened in China, calls were made that authoritarian governments are going to hamper efforts to combat global pandemics and disasters. Subsequently, democracy was proposed as a viable option to authoritarianism. This piece examines the good and the bad of democracy as a viable option. Furthermore, the Law of Treaties will be examined and proposed as a better option than democracy.

Authoritarian governments thrive on opaque, controlled and asymmetric access to information. Authoritarian governments solidify their regime by regulating every aspect of the lives of its citizens. Any action or event that seems to exist outside the umbra of control of the government is seen as an indictment on the power of the state. Even if the action is a caution to family and friends to be wary of a possible disease outbreak. This indictment is perceived to open the government to challenges. Challenges like protests from citizens for the demise of the regime, economic sanctions from the international community or possible overthrow by potential authoritarian regimes. Therefore authoritarian regimes keep a tight leash on any and every kind of information that threatens its security.

Against this background, an argument can be made for democracy because it has freedom of expression and information.
Freedom of expression and information encompasses access to information, independent media, press freedoms and a liberated internet. The presence or absence of these structures is used as part of a holistic metric to determine whether a country is democratic or not. In fact, suppression of freedom to information and freedom of expression is a precursor to gross fundamental human rights abuses and dictatorial governance.

Freedom of expression and information thrives in a democratic milieu. This can be attributed to legal structures that are inherent in a democracy. The law defines what information is and who can have access to it. Law regulates the creation, dissemination and accessibility to verified, accurate and reliable information. But freedom of information can lead to misinformation or Fake news! And extreme polarisation of countries along political divides as the world has witnessed in recent times. But it is also in a democracy that avenues exist for citizens, international organisations and other countries to independently ascertain the veracity information.

Sometimes democracy is equated to freedom of expression and information. But this is not accurate. Democracy as succinctly put by Abraham Lincoln is “a government of the people, by the people, and for the people”. Freedom of information and expression are constituents of democracy but this fact does not undermine their value. A cursory look at Larry Diamond and Robert Dahl’s conception of democracy reveals that active citizenry participation in the governance process is one of the most indispensable characteristics of a democracy. Active participation of citizens in governance is directly proportional to access to information and freedom of expression. Again per Article 19 of the Universal Declaration of Human Rights which rightly states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontier.” This accentuates the value accorded to freedom of information and expression by the international community of states.

But the reality is, any attempt to promote democratization has led to, and based on history, can lead to fierce resistance accompanied by unintended and sometimes deleterious consequences. Although unfettered access to and dissemination of information is crucial to coordinate efforts to combat pandemics like Covid-19 as well as assist humanitarian relief efforts in conflict-ravaged countries, natural and man-made disasters regions, democratization will come at a great cost.

Is there any system to circumvent this colossal impediment to the idea of democracy as a means to secure humanity’s survival? In the interim, Global Outbreak Alert and Response Network (GOARN) seems to be the answer. GOARN was established in 2000. It is a network of research and technical institutions, universities and international health organizations willing to contribute and participate in internationally coordinated responses to acute public health events. GOARN investigate and characterize threats and support sustained containment of epidemic threats because no country has all the capacities to respond to international public health emergencies. GOARN is under the auspices of the World Health Organization (WHO). But Covid-19 revealed that GOARN must be reviewed especially in the area of reporting suspicious symptoms and diseases. Dr. Li Wenliang’s warning was sent to colleagues and close relatives via WeChat unfortunately for him, it went viral. He was arrested and charged with the offence of spreading fear and panic. His observations were discredited and he was warned to desist from spreading fear and panic. But the Chinese government could have made the necessary investigation before discounting Dr. Li Wenliang observations.

This piece makes a proposition base on the sequence of events that marked the beginning of Covid-19, that a treaty must be formed to supplement GOARN.

A treaty is defined, in article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. A treaty is ideal for this politically charged situation. A treaty per its nature imposes an obligation on states to obey the tenets of the agreement in good faith. This is clearly stated in article 26 of the Vienna Convention on the Law of Treaties.

But the binding nature of treaties is often seen as an imposition of ‘foreign’ ideas and practices on States as well as a deliberate attempt to usurp the authority of States. Here I propose that the means of expressing consent to be bound by a treaty under Article 11 of the Vienna Convention on the Law of Treaties undermine this assertion. Because the validity of the various means of expressing consent to a treaty- such as signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed- is based on the mode of their procurement. Expression of consent is governed by article 51 of the Vienna Convention on the Law of Treaties. It states that “the expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect”.

At this juncture, ratification as a mode of expressing consent to be bound by a treaty will be examined to answer the question of why a treaty will engender a global response to pandemics in particular and global scale disasters in general.

Ratification is a legal as well as a political process. From the legal perspective, according to Article 2 (1)(b) of the Vienna Convention on the Law of Treaties “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. This definition is primarily focused on the activities of states on the international plane to the neglect of a holistic appreciation of ratification as both an interstate and intra-state phenomenon. Therefore ratification can be defined as an approval or confirmation of a previous agreement or contract or other act that would not otherwise be binding in the absence of such approval. From the political standpoint, in a democratic state like Ghana, the opposition coalition can mount a challenge against the ratification of a treaty in Parliament under Article 75(2) of the Constitution of Ghana, 1992. Civil Society Organizations can embark on peaceful demonstrations per Article 21(1)(d) of the Constitution of Ghana,1992 to express their opposition to any treaty and citizens can leverage the Court as it happened in the case of Mrs. Margaret Banful and Henry Nana Boakye v. The Attorney General and The Ministry of Interior (Gitmo2Case) Writ No. J1/7/2016 22nd June 2017 to oppose any international agreement that endangers their interest.  In an authoritarian state, opposition to international agreements will be in the form of intra-party contestation or conflict within the dominant government. Horizontal and vertical negotiations, concessions and conflicts will be waged by close allies to the dictator to secure their fortune.

I propose that if these conflicts end in the adoption of the proposed treaty it will cement the creation of an independent public health emergency sphere in the signatory states for a robust and sensitive emergency reporting, investigation and preparation system. For instance, Dr. Li Wenliang could have reported his observations to GOARN for an independent depoliticised and accelerated international investigation divorced from socio-cultural beliefs and prejudices to be conducted. A system of this nature would have changed the Covid-19 narrative we have today.

In conclusion, the rate at which global disasters are happening is unprecedented. These boundary-defying disasters are happening all over the globe. Previously, there was the Middle East respiratory syndrome (MERS), Severe Acute Respiratory Syndrome (SARS), Ebola is still around, and then there is COVID-19. Unprecedented bush fires, hurricanes abound as well.
The Chinese government was criticized for how it managed the initial stages of Covid-19. Many thought the backlash against the authoritarian Chinese government meant the dawn of democracy in China. But this did not happen. This piece argues that a very pragmatic measure to secure the lives and livelihoods of the inhabitants of this Earth is through the law of treaties. A treaty is more likely to bolster global response in both democratic and autocratic governments to global disasters and pandemics.