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

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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.

Whether States will need to rely on these defences at all will depend on the specific obligation at issue. Some obligations, like those under human rights treaties which are subject to limitations and derogations, may exclude reliance on the plea of necessity (see here). Other obligations, in turn, may already cater to exceptional circumstances: for instance, due diligence obligations require the maintenance of a certain standard of diligence and this standard is relative to the circumstances. The formulation of these rules renders reliance on a plea of force majeure redundant: if exercising a normal degree of diligence is impossible due to external events, then the State does not act incompatibly with its obligation. This notwithstanding, these defences are likely to be important to States in several fields of international law – as shown by the investment case law involving the Argentine financial crisis and the (still early) disputes arising out of events during the Arab Spring.

The pandemic is still ongoing, so the analysis in these posts is only preliminary: an attempt to flag the issues that might arise in relation to each of these defences, rather than to provide conclusive answers on any of them.

Force Majeure

The defence of force majeure is codified in Article 23 of the ARS. According to this provision:

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

2. Paragraph 1 does not apply if:

(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or

(b) the State has assumed the risk of that situation occurring.

A successful claim of force majeure must fulfill 5 conditions: (i) there must be an unforeseen event or an irresistible force (the ‘triggering event’); (ii) the event or force must be beyond the control of the State; (iii) the event must make it ‘materially’ impossible to perform an obligation; (iv) the State must not have contributed to the situation; and (v) the State must not have assumed the risk of the situation occurring. Each of these will be assessed in turn, except for (v) which is likely to depend on the specific language of particular treaty commitments.

First, the triggering event can be of natural or anthropogenic origins, or be the result of a combination of the two (ILC Commentary to  ARS, Article 23, §3. This source will be referred to as ‘Commentary’ in the rest of this post). There are two types of triggering events. The event can be an unforeseen one, in the sense that it is ‘neither foreseen nor of an easily foreseeable kind’ (Commentary, §2).  It would seem fair to say that the initial outbreak of the virus (SARS-CoV2) was unforeseen, but that some form of viral pandemic occurring in the next few years was foreseeable (see, here and here). Most States where the virus spread in the early days, when there was considerable uncertainty as to what was happening, may be able to rely on the event’s unforeseen nature. But this may not be the case for all. States where the virus has spread once the outbreak was known may not be able to rely on this limb of the triggering event: for them, the event would not have been unforeseen or unforeseeable.

The triggering event can also be an ‘irresistible force’. Presumably, whether the ‘force’ was foreseen is irrelevant: Article 23 speaks of an ‘unforeseen event or an irresistible force’. The Commentary does not clarify the meaning of the term ‘force’, but it is plausible that ‘force’ here does not imply an event having a certain physical strength (such as an earthquake), but rather any event which can cause some constraint or coercion. Indeed, as the Commentary clarifies, the adjective ‘irresistible’ is intended to emphasise ‘that there must be an element of constraint which the State was unable to avoid or oppose by its own means’ (Commentary, §2). In essence, the issue is whether the State could have done anything to avoid the virus from reaching its territory. Scientific research shows that there was nothing States could have done to prevent this: in this sense, at least, the event was irresistible (see here, showing that border closures are ineffective to prevent reach of the virus, and here, showing that airport screening is also ineffective in this regard). Nevertheless, it may be queried whether the virus could have been brought under control early, so as to prevent within-country transmissions beginning, such that its subsequent spread was not ‘irresistible’. On this point, mathematical modelling has shown that contact tracing (namely tracing the individuals who were in contact with an infected person), which the scientific community believed to be the main tool for containing an outbreak like this one (it was, for example, largely responsible for the 2002-2003 SARS outbreak being brought under control), is not particularly effective in situations where there is asymptomatic transmission, as seems to be the case with COVID-19 (see here).

Second, the triggering event must be ‘beyond the control’ of the State in question. This requirement was added by the Drafting Committee during the first reading of this provision ‘in order to further stress the element of impossibility’ at the heart of this defence (ILC Yearbook 1979, Vol I, 234, §3). The event is beyond State control if it overpowers the State. This element is closely linked to the unforeseen or irresistible nature of the event, so the above considerations would apply here too.

Third, the triggering event must cause a ‘material impossibility’ to perform an international obligation. The Commentary does not define ‘material impossibility’; it merely tells us what this is not: it is not an increased difficulty of performance (§3), and it is not ‘impossibility’ in the sense of Article 61 of the Vienna Convention on the Law of Treaties (VCLT) (§4). There are disagreements in the literature as to what this element requires, in particular whether it must be an absolute and material impossibility as held in Rainbow Warrior (§77). The work leading to the adoption of this provision, as well as past practice, suggest that the impossibility must be material and absolute. ‘Material’ refers to the kind of impossibility at issue: it must be a physical inability to perform the obligation. ‘Absolute’ refers to the degree of this impossibility: the State must have no way to perform the obligation in question, it must have no options open to it. This is confirmed by the rationale of the plea, which according to the Commentary, lays in the fact that the non-performance of the obligation is ‘involuntary or involves no element of free choice’. (For a different view, see here and here.)

Whether the coronavirus outbreak will cause this type of impossibility cannot be answered in general terms: it will depend on the obligation at issue. It is difficult to see, however, how this very high standard will be met. In very crude terms, it is possible for States to continue to run as usual, to let people continue to move and travel, and so on. But they have chosen not to follow this path, as it would involve serious risk to people, both their own population and that of other States. They have, therefore, adopted measures to address the crisis. Such course of conduct is, to be sure, constrained by external events – but it is not ‘involuntary’ and neither does it involve ‘no element of free choice’. If States have choices – as limited as these may be – then they do not face an absolute impossibility of performance, but a relative one. This puts them outside of the scope of force majeure, and slides them into the defences of necessity and distress.

Fourth, the State must not have contributed to the situation of force majeure. Unwitting contributions which were done ‘in good faith’ and which did not themselves make ‘the event any less unforeseen’ will not preclude reliance on the plea (Commentary, §9). The standard is, nevertheless, somewhat vague. How far back in the past can contributing causes be found? Arguably, everything ranging from chronic under-funding of public healthcare, to slow reactions in preventing or containing the spread of the disease, may be relevant to this assessment. For example, China could have a difficult time arguing that it did not substantially contribute to the situation. The Government failed to enforce adequate infection, prevention and control (IPC) measures in wet markets, despite the fact that poor hygiene conditions in these wet markets were implicated in a number of avian influenza outbreaks in humans as well as the 2002-2003 SARS epidemic (see here and here). On the other hand, austerity policies, which negatively affected health care provision but were adopted in good faith, may not be considered to have substantially contributed to the situation: these do not necessarily affect the rate of spread of the disease beyond potentially increasing vulnerability to nosocomial transmission, but may affect the States’ ability to quickly respond to the situation and provide support to its population, thereby increasing the mortality and morbidity associated with outbreaks.

The plea of force majeure is a very strict one, and States have rarely been successful when invoking it as a matter of international law. The outbreak of COVID-19 amounts to an event potentially triggering a situation of force majeure, but States will nevertheless have some difficulty demonstrating the impossibility of performance required by Article 23. This will of course depend on the specific obligation at issue in each case, but in most cases States are likely to have a choice (even if a difficult one) in respect of compliance.

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