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 This focus was then in more recent years, joined, perhaps even superseded, by another concern that characterised a large number of prominent responsibility claims: the question of proof of a State’s involvement, often directly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.
Associate Professor, ANU College of Law
Wednesday 13 May 2020