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Messages - Abu Saleh

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 This focus was then in more recent years, joined, perhaps even superseded, by another concern that characterised a large number of prominent responsibility claims: the question of proof of a State’s involvement, often directly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

Post Courtesy:
Sarah Heathcote
Associate Professor, ANU College of Law
Wednesday 13 May 2020

International trade law consists of a series of multilateral treaties administered through the framework of the World Trade Organisation (WTO), which has 164 members. WTO members include the world’s biggest economies, all of which are bound by the treaties. The underlying aim of the WTO system is to promote international trade by removing barriers to trade – such as tariffs, quotas and other import or export restrictions – and to promote equal treatment of members by prohibiting discrimination between and against other countries.

Many of the initial national responses to COVID-19 including restrictions on travel and export prohibitions on essential medical items are prima facie breaches of WTO agreements, such as the General Agreement on Trade and Tariffs (GATT) and the General Agreement on Trade in Services (GATS). However, these treaties also contain exception provisions allowing governments to balance legitimate public policy needs with trade goals. Actions taken during this time that are aimed at preventing the spread of the disease would qualify as those taken to “protect human health or life” as set out in GATT Article XX(b) and GATS Article XIV(b). As long as countries do not unjustifiably or arbitrarily discriminate in how they apply these measures, no GATT or GATS breach would actually occur.

Discrimination in this context includes treating countries with the same conditions differently; or with different conditions the same. Thus, if responses to COVID-19 properly differentiate based on the status of the pandemic in each country, no discrimination takes place even if the measure applies differently to different countries. If, for example, Australia and New Zealand are successful in not just flattening but squashing the curve and chose to lift restrictions vis-à-vis each other – essentially extending the national bubble to a bubble for two countries – the fact such restrictions are not lifted for other countries less successful in containing the pandemic would not be considered discrimination.

However, as global production plummets, countries are now starting to discuss changes to trade policy that will have effects lasting long after the COVID-19 pandemic is over, seeking to bring manufacturing of products back onshore. International trade law rests on the economic assumption that countries should specialise in the industry they are most efficient at and the treaties disincentivise countries from artificially propping up inefficient domestic industries through the use of subsidies, tariffs or other measures. This, combined with the proliferation of free trade agreements, has seen vast shifts in certain industries. For example Australia no longer has a domestic car manufacturing industry, while the now-abandoned North American Free Trade Agreement is often blamed for the shifting of car manufacturing jobs from the US to Mexico. Of those industries that do manufacture onshore, most have deep vertical global supply chains, sourcing composite parts internationally.

Imogen Saunders
Senior Lecturer, ANU College of Law
Wednesday 29 April 2020

The Security Council’s interpretation of threats to international peace and security has expanded considerably since the UN Charter was drafted. In 1945, the UN’s founders would have assumed that the Council would typically respond to conventional security threats to national political independence and territorial integrity. But in recent decades the Council has increasingly characterised non-conventional phenomena, including civil wars, international terrorism, serious violations of human rights, and even climate change, as threats to international peace and security. In fact, the Council has identified previous global health crises as a threat to international peace and security, doing so in relation to HIV/AIDS, SARS and Ebola.

However, despite these precedents for identifying global health crises as a threat to international peace and security, the Security Council is not well-equipped to respond to these unconventional types of threats. The main instruments in the Council’s toolkit for responding to threats to the peace are coercive Chapter VII measures such as sanctions and the use of force. With the benefit of hindsight, and suspending the political reality constraints posed by prospective P5 vetoes, an assertive Council might have sought early to ascertain the facts on the ground by deploying a fact-finding mission. At the same time, it might also have applied a travel ban to slow the spread of COVID-19 across international borders. These responses might have slowed the escalating pandemic, providing crucial additional time for UN member states to strengthen their capacity to cope with COVID-19’s eventual arrival. But effective action to halt COVID-19 would have required the Council to develop new, unorthodox responses. To borrow a cliche, not every global problem is a nail requiring a hammer.

The UN Charter granted five states permanent membership of the Security Council, along with the power to veto prospective substantive Council decisions. The threat and/or use of the veto power create a perennial pragmatic constraint on the principled aspirations of Council decision-making. While industrious and innovative elected (E10) Council members have been able to exercise influence over the content and contours of some Council decisions, if one or more of the permanent members have substantial misgivings about prospective action, then efforts to take such action through the Council are destined to fail.

In relation to the COVID-19 crisis, negotiations in early-April towards a formal Security Council response unravelled due to squabbling between China and the United States on how to characterise the name of the virus and early responses thereto. The escalating differences between these permanent members, which the Chinese Foreign Minister recently described as a ‘new Cold War’, suggest that the Council will not agree on a meaningful response to COVID-19 anytime soon.

It is ironic that permanent members have prevented the Council from taking meaningful action against COVID-19, given the damage the pandemic has wrought not just on the Council’s New York home, but also on the domestic populations of all permanent members. At the time of writing, the only permanent member who sits outside the COVID-19 top ten infectious countries is China, where the virus originated.


[Philippe Sands is a Professor of Law at University College London and a barrister at Matrix Chambers.]

The birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law. The full consequences will emerge over time, but certain observations may be proposed. It is plain that the health needs of COVID-19 go beyond the capacities of our hospitals, and of our international legal structures.

What have we learned?

We are interconnected.

We are fragile.

We are ill-informed.

We need government and cannot rely on the market-place.

We adopt international principles – like precaution – then fail to apply them.

We are adaptable.

We cannot act alone.

Whether the world will act together remains unclear. ‘The epidemic itself and the resulting economic crisis are global problems’, Yuval Noah Harari notes, even as the response confronts us with a binary choice, ‘between nationalist isolation and global solidarity’. Harari opts for ‘global co-operation’.

As the COVID-19 pandemic continues to unravel without regard to national borders, countries around the world are faced with both public health and economic issues on a scale not previously seen. In this context, international law, particularly international investment law, continues to apply. It does not present a binary choice between “State protection” and “investor protection” but involves a balancing of rights and interests. The measures adopted by sovereign States using their regulatory “police powers” to respond to the pandemic may have a significant impact on foreign investments situated within their territory. Therefore, it is imperative that countries hosting foreign investments take into account applicable international law safeguards and limits when adopting reactive measures, such as acting in a non-discriminatory and non-arbitrary manner, in order to prevent a potential fallout from disputes with foreign investors. Conversely, foreign investors must also be watchful of these intrusive measures, and should be pro-active in considering whether action taken by a host State is compliant with that State’s obligations under international treaty and customary law and whether the State’s conduct might give rise to an international law remedy in addition to remedies available under the laws of the host State.

Good to hear that... :) :) :)

Good to hear that... :) :) :)

Good to hear that... :) :) :)

Good to hear that... :) :) :)

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