Reliance on 'exceptions' and the implications for how we think about sovereignty

Commercial airplanes grounded during the COVID-19 pandemic at an airport. Photo: iStock
Caroline Foster
Associate Professor, The University of Auckland
Tuesday 2 March 2021

The COVID-19 pandemic has seen a wave of increased reliance on provisions that can broadly be viewed as exceptions to international legal rules. These provisions are found across many areas of international law, including international trade and investment law, the law of the sea and civil aviation, international human rights law, international health law itself, and the law on State responsibility. This coincides with an upturn of interest in the law relating to exceptions among international lawyers, evidenced in writing such as the Bartels and Paddeu 2020 volume on Exceptions in International Law. Yet the COVID-19 experience suggests that the counter-positioning of rules and exceptions may be more complex than meets the eye, and invites us to consider whether these categories have the potential to go out of vogue in the light of the adaptability introduced into international law through emerging global regulatory standards.

The extent to which provisions in the nature of exceptions have been relied upon during the COVID-19 crisis is well out of the ordinary. In the international trade sphere, restrictions on the export of sanitary and medical essentials are the most visible instances of reliance on exceptions. The WTO has worked hard to encourage transparency around these and other COVID related actions. In the longer term a variety of challenges in trade policy development will arise from States’ desire to future-proof important sectors of their economies against disruption. In international investment law, exceptions-type provisions are likely to be relied upon to justify State action including not only strategic screening of foreign direct investment but also actions like those relating to the nationalisation of hospitals and even airlines, the closure of businesses, and calls for manufacturers to change their products. States may additionally or alternatively be relying on understandings arising under the rubric of the circumstances precluding wrongfulness in the law on State responsibility or on the treaty law doctrine of fundamental change of circumstances.

As a matter of international health law, States including New Zealand and Australia have relied, controversially at times, on the provisions in the International Health Regulations 2005 (IHR) allowing States to take additional measures to those recommended by the World Health Organization (WHO). States have closed their airports and ports against international traffic knowing that as needed they can depend on relevant provisions of the Chicago Convention on International Civil Aviation together with traditional territorial rights over their ports. Meantime human rights commonly taken for granted on an everyday basis have been radically restricted in many jurisdictions in attempts to counter the spread of COVID-19. Certain States have lodged notices of derogation from their treaty obligations while others have relied on the limitations provisions built into international human rights law.

Among the provisions relied upon in these scenarios there are some that are more correctly categorised as exceptions than others. Yet in almost all instances it would be expected that legal challenges to States’ reliance on them would involve a degree of argument on whether or not they constituted exceptions or rules. Frequently it is indeed in contentious proceedings before international courts and tribunals that rules and exceptions are juxtaposed as opposites. This is closely connected with the idea that one party or another must bear the burden of proof in order to enable adjudicatory decision-making where a matter remains unestablished.  Allocation of the burden to the complainant, consistent with Roman law, reflects a presumption of compliance by responding States with their international legal obligations. This reflects their dignity, and the fact that usually States do comply with their obligations. Conversely, where they seek to rely on an exception to the rules the burden is allocated to the respondent.

If pandemic responses are not only exceptional but also frequently to be categorised as involving 'non-compliance' with States’ obligations, is sovereignty no longer the norm?

All this takes place in an institutional and procedural dispute settlement context oriented around binary oppositions. In such a setting the language of compliance flows naturally and States successfully relying on provisions categorised as exceptions are, in effect, designated as non-compliant with their international legal obligations. What the COVID-19 crisis leads us to ask, though, is whether the content of many of these exceptions may in fact reflect important tenets of sovereignty constituting the norm on which international legal relations are constructed? The tension induced by this question could be resolved in part by relying on an analysis in which many of the provisions that could loosely be designated as exceptions are in fact carve-outs or autonomous rights, rather than genuine exceptions. For instance, they could be read as safeguarding States’ pre-existing and overarching regulatory powers, whether these relate to control over territory or control over public policy. In other instances, the provisions alleviate States’ obligations by removing them all together, as in the case of States’ reliance on provisions for derogation from human rights as strictly required by the exigencies of the situation.

The matter is not purely doctrinal. Rather it draws our attention to the fundamentals of how public power is generated and allocated under law globally. If pandemic responses are not only exceptional but also frequently to be categorised as involving 'non-compliance' with States’ obligations, is sovereignty no longer the norm? Has sovereignty been ousted by another fundamental norm requiring mandatory economic and social co-operation? Divergence in views over the closure of ports and the principles underpinning states’ decisions on the refusal of free pratique to visiting vessels in the COVID context illustrates concretely the tension arising. Hints that scholars and leaders believe the world may conceivably contemplate the future allocation of enhanced powers to the WHO or other apparatus for dealing with contagious disease outbreaks under rubrics such as 'shared sovereignty' may also make us wonder whether sovereignty is on the wane all round?

However, it remains possible to pull back from the compliance/non-compliance dichotomy found in the idea of rules and exceptions. As international law matures, the international legal system is acquiring new layers, introducing a flexibility fitting that system for application in a wide range of situations, including global health crises. Three 'global regulatory standards' are gaining prominence. These standards include requirements for States to ensure coherence in their domestic regulation, to exercise due diligence especially in respect of the conduct of private actors, and to show due regard to the legal rights and interests of others. These requirements are simultaneously emerging across multiple fields of international law, including international economic law and the law of the sea as well as international human rights law jurisprudence on reasonable limitations in times of emergency, and they have a place also in international health law. At the same time, global regulatory standards do not seek to normalise reliance on exceptions, neither does their application suppose that all situations are similar. Their content and the legal tests involved in their application vary according to context.

Global regulatory standards hold considerable promise for the future and should be more widely recognised under international law. Importantly for present purposes they may inhere both in rules and in exceptions depending on the context. They will provide valuable guidance for decision-makers within States. When needed they may also afford a basis for decision-making by international adjudicators without reliance on the burden of proof, as seen in the Whaling in the Antarctic case where Japan’s whaling program was ruled inconsistent with the International Convention on the Regulation of Whaling in essence on the basis that it was lacking in regulatory coherence as well as in due regard for the recommendations of the International Whaling Commission. Placing reliance on the emerging global regulatory standards thus helps us steer clear of the idea that is connected, even if perhaps unintentionally, with the language of rules and exceptions:  that sovereignty is on the way out.  Instead, what we see is a sovereignty subjected to newly identified responsibilities and ready for international partnership with other sovereigns and with international organisations like the WHO.

This essay draws on the author’s forthcoming publication: Caroline E. Foster, Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard and Due Diligence (Oxford University Press, 2021).

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