Can the United States be held Liable for Treating COVID-19 with Anti-Malaria Drugs?

By: Melanie Ng

The actions of one State definitely impact others. Regarding COVID-19, States have employed various approaches to slow the spread of the virus: some methods have proven more “successful” than others (depending, of course, on how success is calculated). But could the U.S.’ actions regarding unfounded COVID-19 treatment punishable under international law?

According to the U.S. Constitution, the President is responsible for foreign communications and diplomacy.[1] The current president of the U.S. has made several unsubstantiated claims that anti-malarial drugs suggest “promising” results for COVID-19 treatment.[2] What if other countries take the president’s “advice” regarding these treatment options?

The International Covenant for Civil and Political Rights (“ICCPR”), ratified by the U.S. in 1992, thus becoming the “supreme law of the land.”[3] Article 7 of the treaty provides “No one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment [“CIDT”]. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”[4] But what exactly is “medical or scientific experimentation”? Where do you draw the line between a new treatment and a premature treatment?

In order for a public health scientific experiment to be widely-accepted, it must first be peer-reviewed. Most peer-reviewers utilize some or most of the Bradford Hill criterion to determine whether the experiment holds merit. These criteria include an analysis of the following factors: strength, consistency, specificity, temporality, biological gradient, plausibility, coherence, experiment, and analogy.[5] As such, without reviewing an experiment for validity, a medical treatment should be considered experimental.

Under a strict reading of article 7 of the ICCPR, administering an experimental drug to a patient without first obtaining the patient’s consent is a clear human rights violation. Consent is voluntarily agreeing to make a personal decision. In obtaining consent, full disclosure of the relevant circumstances and facts must be provided—including the fact that this medical treatment is experimental. However, what if a doctor believes that the U.S. president’s statements and ongoing medical experimentation to combat an international pandemic are enough to support a customary use of the drug? Are rules different in a pandemic or “public emergency”?

According to the ICCPR, the prohibition of CIDT remains in place even during a “public emergency.”[6] As such, doctors should receive consent from patients or loved ones before administering any sort of experimental treatment. This requires a discussion of the treatment and a disclosure that this proposed treatment is experimental and may or may not be successful and may create unknown health risks in the future There is an argument to be made that based on the president’s statements, anti-malarial drugs are a “generally accepted” treatment for COVID-19; however, this is insufficient to allow the U.S. to escape international responsibility for premature statements. As such, another country who is party to the ICCPR, may make a claim to the Human Rights Committee that the U.S. is not fulfilling its obligations.[7] Upon new scientific evidence, the U.S. may also be held responsible for violating the right to health in other States.

[1] U.S. Const. art. 2 § 2(2).

[2] See generally Oliver Milman, Trump touts hydroxychloroquine as a cure for Covid-19. Don’t believe the hype, Guardian (Apr. 6, 2020 at 2:33 PM), visited Apr. 30, 2020).

[3] International Covenant on Civil and Political Rights (“ICCPR”), adopted Dec. 16, 1966, 999 U.N.T.S. 171.

[4] Id. at art. 7.

[5] Auston Bradford Hill, The Environment and Disease: Association or Causation?, 58 Proceedings of the Royal Society of Med. 295 (1965).

[6] ICCPR, supra note 3, art. 5 (noting that a derogation from article 7—at any time—is impermissible).

[7] Id. at art. 41.

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