State responsibility under international law and the COVID-19 crisis

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Associate Professor, ANU College of Law
Wednesday 13 May 2020

Disruptions caused by the global spread of COVID-19 are likely to generate claims for different types of responsibility, whether domestic or international. This contribution focuses on one type of responsibility under international law, that of State responsibility for internationally wrongful acts. It does not consider the probity of specific alleged breaches – for instance whether China has breached its obligations under the World Health Organisation’s (WHO’s) International Health Regulations to notify the WHO of the virus in a timely manner, or the general international law due diligence obligation on States not to allow acts under their jurisdiction to harm other States. The object here is instead to comment on how State responsibility issues arising in the context of the COVID-19 crisis fit with trends regarding the rules of State responsibility themselves; that is, the rules pertaining to what generates responsibility and its enforcement. Some possible future developments are also addressed.

COVID-19 and the Generating Act

Whether or not it is enforced, State responsibility is automatically generated as a matter of law by the presence of the internationally wrongful act, which is to say an act of a State in breach of its obligations and not justified on one of the grounds recognised by the law. The question of when an act is one of the State has long been a focus of attention and especially so in relation to non-State actors (NSA) since the Al Qaida attacks of September 11, 2001. This focus was then in more recent years, joined, perhaps even superseded, by another concern that characterised a large number of prominent responsibility claims: the question of proof of a State’s involvement, often directly through its established organs such as the military, in acts in breach of international obligations. So for instance, could it be proven that Russia was involved in the civil war in the Donbass region of Ukraine from 2014; that the acts of (Chinese mariners) ‘Little Blue men’ in the South China Sea or (Russian soldiers) ‘Little Green Men’ in Crimea were indeed State acts. The same question also arises with cyber-attacks: is there proof that the suspected State is indeed the author of the attack. The focus in all these instances is on attribution, the subjective element of the internationally wrongful act.  

With COVID-19 the focus thus far is less on the question of whether acts are ones of the State but on the acts themselves: whether what the State is doing amounts to a breach of an international obligation – the objective element of the internationally wrongful act. But the question is still one of proof. This focus arguably reflects, at least partially, current broader trends to ‘reconstruct’ truths, taking uncertainty to a higher level since bearing on acts themselves and not simply on actors regarding established facts. In this context, the Australian call for an international fact finding enquiry, whilst perhaps better pursued through international fora (prioritising multilateralism over unilateralism), is a logical – and intrinsically lawful - attempt to reduce that uncertainty. If accepted, and it could only be operationalised with consent, it would be an initiative that would benefit all sides by reintroducing certainty, stability and consequently the rule of law.

Knowledge of the facts is not only important for determining if responsibility has been generated, but also in order to know whether the sanctions to enforce that responsibility are legally justified. Such counter-measures are only lawful if, amongst other conditions, they are a response to an on-going internationally wrongful act. But with no breach established, there is for instance no lawful ground for the US to adopt sanctions against China. Likewise, Australia having committed no prior internationally wrongful act in calling for an independent international investigation, cannot be lawfully subjected to otherwise unlawful trade sanctions simply because of that appeal.

Knowledge of the facts is not only important for determining if responsibility has been generated, but also in order to know whether the sanctions to enforce that responsibility are legally justified.

Justifying Breaches to Come

If the above analysis turns on the interplay of truth and law, it is possible that future State responsibility issues arising from the Coronavirus crisis will play on the concept of time. This too is part of a trend, one that has been increasingly present since the end of the Cold War. Going forward, breaches by States of their obligations arising from COVID-19 will relate less immediately to the pandemic itself but instead to the economic crisis it has generated. This crisis will likely result in severe financial hardship for States, leading some to breach their international obligations. These States are then likely to claim that these breaches are justified on the basis of a state of necessity – a plea enabling a State temporarily to set aside an obligation protecting a interest of another State in order to avert a grave and imminent peril threatening one of its own, more important and essential, interests.

The cases, including those concerning the Argentinian financial crisis of the early 2000s, show that necessity pleas invariably fail for two reasons: the invoking State cannot prove that the temporary breach of its obligations was the sole means of averting the peril and second, the State invoking the plea is found to have contributed to the onset of the peril, thereby excluding its applicability. So for instance, where a State was slow to respond to COVID-19 (by for instance not initiating prompt shut-downs), it can easily be said that it contributed to the onset of the peril, rendering a necessity plea inaccessible. 

That said, greater opportunity arguably exists in theory today, than in the past, to invoke the necessity plea. This is because States can exploit to their advantage the elasticity that has been brought to the concept of time, one that has played out in state of necessity’s criterion of ‘imminence’. Imminence has increasingly lost its connection to ‘temporal imminence’ or ‘imminence in point of time’. This became apparent in the mid to late 1990s, enabling state of necessity to cater to the precautionary principle. More recently Professor Harold Koh, legal advisor to US Secretary of State Clinton advocated ‘elongated imminence’ in the context of self-defence. Whilst that position does not reflect the state of the law of self-defence, it does reflect the trend towards embedding time’s elasticity. Its effect in the COVID-19 context will be to allow attempted derogations in necessity to come earlier and with less apparent connections to the crisis. The legal scope to deviate from obligations thus widened, perhaps the only consolation for the international lawyer is that state of necessity is at least a legal argument (albeit one with detractors, including the present writer), something all too often lacking today as truth and law are debased by the world’s most important political powers.

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