31 Mar COVID-19 Symposium: COVID-19 and the Foundations of International Law
[Martins Paparinskis is Reader in Public International Law at University College London, Faculty of Laws.]
‘Is COVID-19 also disrupting the foundations of international law?’ The cliché on the topic safely out of the way in the first sentence, let me say that I will not add to discussion of how international law shapes possible responses in technical and institutional terms, nor will I say anything about the politics and science involved, due to justified modesty about my contribution on the latter points. Instead, I propose to reflect on the effect of COVID-19 and reactions thereto (‘COVID-19’ in the rest of the piece) on the foundational elements of international law: the generalist vocabulary on sources, responsibility, and actors.
Starting Point: Foundations are Forever
One should not easily assume that COVID-19 calls for re-examination of the foundations of international law. Pandemics, to use the technical term in a lightly anachronist manner, have always been part of the social and legal fabric of the international legal order (with OED tracing its etymology to the late 17th century). Plagues were certainly a relatable metaphor and also a normal subject of incidental regulation in the foundational texts: the great 14th century writer on reprisals, Giovanni de Legnano, may have himself been a victim; Grotius is full of references to plague via classical quotes; and Vattel nods to plague as a small-print qualification of the right of passage. The broader point is that the foundational elements of the international legal order are remarkably stable, capable of accommodating fundamental shifts in politics and institutions. A flick through the sections on actors, sources, and responsibility in the standard 20th century blackletter text shows how the short century, while changing everything else from empires to jazz, did very little to foundations between 1905 and 1992. In short, foundational layers of the international legal order do not slice away easily.
COVID-19 and Sources
The law of treaties, reflected to a significant extent in the Vienna Convention on the Law of Treaties (VCLT), and rules on custom, elaborated by the International Law Commission (ILC) in the 2018 Conclusions on Identification of Customary International Law (2018 ILC Conclusions) (strongly supported by States (p.3) and taken note of by the General Assembly ()), do not generally distinguish between application to different specialist fields or situations of emergency. It is hard to see how these rules could be affected in a significant manner by COVID-19. In particular, the combination of international law’s general disdain for dogmatic attitude to questions of form with modern technologies should take care of almost all practical challenges arising out of quarantines and lockdowns. But COVID-19 may put pressure on certain principles that get less traction in less exceptional times, which I will discuss in turn regarding custom and treaties.
Two challenges seem to me likely regarding custom: concerted inaction and concerted action. First, how to capture the juridical effects on the content of rules of a widespread change of States’ position on what counts as lawful, that may not be immediately articulated in practice and opinio juris? The brunt of analysis will, in the first instance, be borne by the principle on failure to act as evidence of opinio juris, expressed in Conclusion 10(3) of the 2018 ILC Conclusions, and in particular the question of whether ‘the circumstances called for some reaction’. Secondly, would States be precluded from generating instant custom if political consensus exists? The 2018 ILC Conclusions are sceptical (Conclusion 8 Commentary 9, Conclusion 12 Commentary 4). But it may be that the better position, suggested over the years by some of the great minds associated with University College London (e.g. Chapter V of Maurice Mendelson’s 1996 Hague Recueil), permits a narrowly tailored endorsement of instant custom, and COVID-19 is that extraordinary instance of a shared and immediate challenge for the entire international community – the ‘aliens’ attack’ hypothetical – which fits the tailoring.
Two issues seem to me likely regarding treaties. As a general matter, principles of interpretation are perfectly capable of addressing disputes about emergencies, as demonstrated by recent decisions in the fields of trade and investment law. A shift in appreciation by States regarding the appropriate boundaries of lawful conduct against COVID-19 could also be articulated in terms of subsequent agreement and practice (see VCLT Article 31(3)(a), (b), ILC). Of course, inconsistencies may give rise to their own controversies but that is not unusual; a recent award of the Iran-United States Claims Tribunal with 8 separate opinions is one, if extreme, example. A more serious but again familiar challenge is the willingness of international tribunals to give full effect to such inter-State efforts; some mechanisms, particularly when open to non-State actors, may, in the view of some, approach this task without excessive enthusiasm (-). The second point can be put more briskly: COVID-19 may finally be the plausible case for invoking fundamental change of circumstances as a ground for terminating or withdrawing from a treaty (VCLT Article 62), discussed with such merriment as impossibly strict just a year ago.
COVID-19 and Responsibility
State responsibility deals with secondary rules, without attempting to define the content of primary rules. The treatment of COVID-19 will therefore vary rule by primary rule: different rules require different conduct (and some will be entirely unaffected), some (vaguer) rules may accommodate exceptional circumstances in the process of application, while others will be drafted to take them into account by restrictions or derogations. But two issues seem relevant more generally: first, circumstances precluding wrongfulness; and secondly, rules addressing multiplicity of actors and conduct leading to responsibility.
Paddeu and Jephcott are persuasive in arguing that circumstances precluding wrongfulness are, in their traditional reading, too narrow to apply here (even if I would put less emphasis on Argentinean arbitrations, which are almost entirely worthless as authorities for this topic due to the peculiar way they were argued and decided). But a more interesting question is whether, once the law-making dust has settled, Chapter IV of Part One of the 2001 ILC Articles on responsibility of States for internationally wrongful acts (2001 ILC Articles) will still be good law. If States do invoke these circumstances, that is not at all certain: e.g. the rule on necessity, reflected in Article 25 (or at least more reflected there than anywhere else, ), could be plausibly perceived as too restrictive and reshaped around the gravity of peril axis, the ‘only available means’ relaxed to ‘reasonable means’, and the qualification of contribution relaxed if not dropped altogether (making Allot ultimately right). And, more generally, if COVID-19-related State practice leads to a perceptibly different result from the elegant formulae of the 2001 ILC Articles, States can always decide to move forward with the long-dormant plans in the Sixth Committee.
The more immediate challenge is capturing in legal terms the complicated factual situation, with many plausible but contested claims about different instances of conduct by different States, international organizations, and non-State actors breaching different primary rules, sometimes on their own and sometimes due to combined effect. Principles of shared responsibility may well eventually provide the broader conceptual prism. But under current law, the weight of the argument will be carried by principles tucked away in the less flashier corners of Part Two of the 2001 ILC Articles, not claiming the pedigree of generally mispronounced Polish place names from yesteryear. Recall that blackletter law does not call for reparation of any and all consequences flowing from the wrongful act (Article 31 Commentary 9); it is only damage for injury caused by the wrongful act (Commentary 10) in breach of the particular primary rule that has to be repaired. Principles of mitigation (Commentary 11) and contribution (Article 39) (as well as a question-mark about concurrence (Article 31 Commentary 12)), plus the open-ended rules on plurality of injury and responsibility (Article 46, 7) will further calibrate the content and form of reparation. Less the grandest principles, then, more the boring small print of evidence, injury, causation, and damage () – and, again, much relevant practice likely directed at these often underexplored rules in the nearest future.
Everyone is a Westphalian in a pandemic. A (primarily) inter-State legal order, focused on a solution to a universal and immediate challenge that depends on the choices and technical capacities of individual States, could well consider tinkering with the status or full rights of participants deemed insufficiently competent by the key actors of the relevant community. The history of international law provides many examples, and in recent practice consent has operated as a proxy for such anxieties, for e.g. self-defence (Principles 11-3), humanitarian assistance (Article 13(2)), and treaty-making (), some instances more persuasive and desirable than others. The gravity of the challenge may well bring to the mind of some (States) the concept of the irresponsible sovereign, whose consent to generally desirable conduct, if not given even after a friendly nudge, may be presumed or dispensed with. Classic Great Powers and outlaw States, one would think — but unlikely to play out in the usual manner in the legal and institutional process. The Venn diagram of States most capable of bending the legal order due to their privileges in institutional, economic, military terms, and States (perceived to be) engaged in conduct most threatening to the international community, is, for once, approaching a circle. Sovereign equality will not vanish away, for the Snark is a Boojum, you see.