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COVID-19 and Defences in the Law of State Responsibility: Part I

As at 16 March 2020, there were nearly 165.000 confirmed cases of COVID-19, and 6.470 deaths in 146 countries or territories. The outbreak was declared a Public Health Emergency of International Concern by the Director-General of the WHO on 30 January 2020 which, according to the 2005 International Health Regulations, is an ‘extraordinary event’ which, as the WHO further explains, is ‘serious, unusual or unexpected’ carries trans-national implications, and may require immediate international action. On 11 March 2020, the WHO declared it a pandemic. Several States have taken measures in an attempt to contain and mitigate the spread of the disease, and many have declared states of emergency in accordance with their own domestic laws. On Monday 9 March 2020, Italy was the first country to impose a nationwide lockdown to slow Europe’s worst COVID-19 outbreak. Before this, China had imposed similar measures affecting Hubei Province. Similar measures have been adopted in many other States, as the virus continues to spread.
The measures mostly involve social distancing, including quarantines, isolation and travel restrictions. These measures, alongside the virus itself, have had significant personal and human costs already. But they are also having a wider impact on the global economy, and on supply chains and other commercial relations. To mitigate the effect of these measures on businesses, China has, for example, issued force majeure certificates, in accordance with its domestic law, to a record number of local exporters so as to exempt them from fulfilling contractual agreements with overseas buyers. France and India are considering similar measures to shield their businesses from the impact of the virus and measures to address it.
It is not farfetched to think that the outbreak, and the measures put in place by States to address it, may also affect relations regulated by public international law. An obvious example are obligations under foreign investment law. Quarantine measures could severely delay foreign investment projects, possibly at considerable cost to those investors, and engage, for example, the obligation to afford fair and equitable treatment to foreign investors. Likewise, travel bans may affect obligations under bilateral civil aviation agreements, as well as the provisions on non-discrimination on the basis of nationality contained in the Chicago Convention on International Civil Aviation. Isolation measures, quarantines, and cancellation of mass events encroach on individual liberties, including the rights to freedom of movement and freedom of assembly under human rights law.
Could States rely on any of the defences in the law of responsibility, should they fail to perform obligations owed under international law to other actors as a result of their efforts to address the COVID-19 pandemic? Of the six defences recognised in the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARS’), the pleas of force majeure, state of necessity and distress are (potentially) relevant. Our analysis in this and the next post will show that the requirements for force majeure in international law are unlikely to be met, as they may have difficulty meeting the high threshold to establish that there is a ‘material impossibility’ of performance. Those for a state of necessity might be met, but there will be some difficulties proving that measures adopted to contain and mitigate are ‘the only way’ to protect an essential interest and that, moreover, they did not contribute to the situation. The plea of distress is the most likely to succeed.

COVID-19 and Defences in the Law of State Responsibility: Part I