International law places certain obligations on states.

These obligations are imposed with the objective

of furthering world peace, security and safety. These obligations are usually incorporated into treaties,
resolutions, bilateral or multilateral agreements or contained in regulations, and are usually binding on
consenting parties.1

An example of an international obligation of a state are those provided by United Nations Charter. In
response for the Covid-19 pandemic, the Office of the United Nations High Commissioner for Human
Rights issued the following guidelines, and some of the guidelines imposed, provides that:

 Health strategies should address not only the medical dimensions of the pandemic but also the
immediate, medium and long-term human rights and gender-specific consequences of measures
taken as part of the health response
 International law allows emergency measures in response to significant threats – but measures
that restrict human rights should be proportionate to the evaluated risk, necessary and applied
in a non-discriminatory way. This means having a specific focus and duration, and taking the
least intrusive approach possible to protect public health
 With regard to COVID-19, emergency powers must only be used for legitimate public health
goals, not used as a basis to quash dissent, silence the work of human rights defenders or
journalists, deny other human rights or take any other steps that are not strictly necessary to
address the health situation
 The right to education needs to be protected in the case of school closures. 2

Failure to fulfill the obligations imposed on a state by an international law may attract penalties
including sanctions and damages. The law of responsibility, an element of international law, imposes
obligations on states and provides for remedies in cases of breach. Responsibility in international law
ensures some form of culpability for an international wrongful act and gives rise to an obligation for the
wrongdoer to provide redress.

Under International law, where a state party commits an internationally wrongful act, which constitutes
a breach of international law, the state party concerned will be held responsible for the wrongful act.
The principles of the law of responsibility have been statutorily provided for in the Articles on the
Responsibility of States for Internationally Wrongful Acts. 1

The ARSIWA provides that: There is an internationally wrongful act of a State when conduct consisting of
an action or omission is attributable to the State under international law; and constitutes a breach of an
international obligation of the State.3

Due to the Covid-19 pandemic, Several States have taken measures in an attempt to contain and
mitigate the spread of the disease, and many have declared states of emergency in accordance with
their own domestic laws. The measures mostly involve social distancing, including quarantines, isolation
and travel restrictions. These measures, alongside the virus itself, have had significant personal and

1
COVID-19: EXAMINING CHINA’S LIABILITY UNDER INTERNATIONAL LAW (Chukwuebuka Usulor Law
Undergraduate, University of Nigeria)
2
United Nations Human Rights: Office of the high Commissioner
(https://www.ohchr.org/EN/NewsEvents/Pages/COVID19Guidance.aspx)
3
Articles on the Responsibility of States for Internationally Wrongful Acts. Article 2
human costs already. But they are also having a wider impact on the global economy, and on supply
chains and other commercial relations 4

It is not farfetched to think that the outbreak, and the measures put in place by States to address it, may
also affect relations regulated by public international law. An example of which are the quarantine
measures that could severely delay foreign investment projects, possibly at considerable cost to those
investors, and engage, for example, the obligation to afford fair and equitable treatment to foreign
investors. Likewise, travel bans may affect obligations under bilateral civil aviation agreements, as well
as the provisions on non-discrimination on the basis of nationality. Isolation measures, quarantines, and
cancellation of mass events encroach on individual liberties, including the rights to freedom of
movement and freedom of assembly under human rights law 3

Could States rely on any of the defences in the law of responsibility, should they fail to perform
obligations owed under international law as a result of their efforts to address the COVID-19
pandemic?

Under the law of State responsibility, there are circumstances that a State may plead to preclude the
wrongfulness of conduct that would otherwise be a breach of the international obligations of the State
concerned. In a manner of speaking, this would provide a defence against a claim for the breach of an
international obligation. According to the Internationally Wrongful Act of a State commentary, they do
not annul or terminate the obligation, rather they provide a justification or excuse for non-performance
while the circumstance in question subsists 5

Three circumstances have been identified as being potentially relevant namely: FORCE MAJEURE,
DISTRESS and NECESSITY.

With regard to FORCE MAJEURE, Article 23 of Articles on Responsibility of States for Internationally
Wrongful Acts provides:

1) The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force
or of an unforeseen event, beyond the control of the State, making it materially impossible in
the circumstances to perform the obligation.

2) Paragraph 1 does not apply if:

a. the situation of force majeure is due, either alone or in combination with other factors, to
the conduct of the State invoking it; or

b. the State has assumed the risk of that situation occurring.

A successful claim of FORCE MAJEURE must fulfill 5 conditions

1. there must be an unforeseen event or an irresistible force (the ‘TRIGGERING EVENT’)

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COVID-19 and Defences in the Law of State Responsibility: Part I (ejiltalk.org/covid-19-and-defences-in-the-law-
of-state-responsibility-part-i/)
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The Law of State Responsibility and the Covid-19 Pandemic (Meagan Wong, Lecturer, School of Law and Human
Rights Centre)
 2. the event or force must be beyond the control of the State
3. The event must make it ‘materially’ impossible to perform an obligation
4. The State must not have contributed to the situation;
5. The State must not have assumed the risk of the situation occurring.

There are TWO TYPES OF TRIGGERING EVENTS. The event can be an UNFORESEEN one, in the sense
that it is ‘neither foreseen nor of an easily foreseeable kind. It would seem fair to say that the initial
outbreak of the virus (SARS-CoV2) was unforeseen, but that some form of viral pandemic occurring in
the next few years was foreseeable.

The triggering event can also be an ‘IRRESISTIBLE FORCE’. The ‘force’ here does not imply an event
having a certain physical strength (such as an earthquake), but rather any event which can cause some
constraint or coercion. As the Commentary clarifies, the adjective ‘irresistible’ is intended to emphasize
‘that there must be an element of constraint which the State was unable to avoid or oppose by its own
means. In essence, the issue is whether the State could have done anything to avoid the virus from
reaching its territory.

The triggering event must also be ‘BEYOND THE CONTROL’. The event is beyond State control if it
overpowers the State. This element is closely linked to the unforeseen or irresistible nature of the event,
so the above considerations would apply here too.

The triggering event must also cause a ‘MATERIAL IMPOSSIBILITY’ to perform an international
obligation. The work leading to the adoption of this provision, as well as past practice, suggest that the
impossibility must be material and absolute. Material refers to the kind of impossibility at issue: it must
be a physical inability to perform the obligation. Absolute refers to the degree of this impossibility: the
State must have no way to perform the obligation in question, it must have no options open to it.

Whether the coronavirus outbreak will cause this type of impossibility cannot be answered in general
terms: it will depend on the obligation at issue. In very crude terms, it is possible for States to continue
to run as usual, to let people continue to move and travel, and so on. But they have chosen not to follow
this path, as it would involve serious risk to people, both their own population and that of other States.
They have, therefore, adopted measures to address the crisis. Such course of conduct is, to be sure,
constrained by external events – but it is not ‘involuntary’ and neither does it involve ‘no element of
free choice’.

If States have choices – as limited as these may be – then they do not face an absolute impossibility of
performance, but a relative one. This puts them outside of the scope of force majeure, and slides
them into the defences of necessity and distress.

The plea of force majeure is a very strict one, and States have rarely been successful when invoking it
as a matter of international law. The outbreak of COVID-19 amounts to an event potentially triggering a
situation of force majeure, but States will nevertheless have some difficulty demonstrating the
impossibility of performance required by Article 23. 6

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of-state-responsibility-part-i/)
With regard to DISTRESS, Article 24 of Articles on Responsibility of States for Internationally Wrongful
Acts provides:

1) The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the author of the act in question has no other reasonable way, in a situation
of distress, of saving the author’s life or the lives of other persons entrusted to the author’s
care.

2) Paragraph 1 does not apply if:

a. the situation of distress is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or

b. the act in question is likely to create a comparable or greater peril.

For a successful claim of DISTRESS, the state must prove the following:7

1. Threat to life

2. A special relationship between the state organ and the persons in question

3. That there was no other reasonable way to deal with the threat

4. That it did not contribute to the situation

5. That the measures were proportionate.

As to the first requirement, this should be easily met. As noted earlier, there is a threat to the lives of
individuals, especially vulnerable sections of society

The second requirement is intended to exclude the application of the plea to situations of ‘more general
emergencies’ which, according to the Commentary, are ‘more a matter of necessity than distress’. The
examples given in the Commentary suggest that one important aspect of the ‘special relationship’
between the organ making the decision and the individuals whose lives are under threat is control: is the
fate of those individuals under the control of the relevant organ?
Insofar as only the central government has the authority to put in place measures of containment or
mitigation in these types of emergencies, it is plausible to argue that there is a special relationship: to
some extent, the fate of the population is within the control of the central authorities. An argument is
therefore plausible that the special relationship criterion is met.

As for the third requirement, the plea of distress requires that the measures are the only ‘reasonable
way’. The reasonableness criterion is intended to provide some ‘flexibility regarding the choice of action.
Social distancing measures are a reasonable avenue, in view of the absence of vaccines or targeted
treatments. However, it is important once again to emphasize that the package of measures, and

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COVID-19 and Defences in the Law of State Responsibility: Part II (ejiltalk.org/covid-19-and-defences-in-the-law-
of-state-responsibility-part-ii/)
perhaps each measure, adopted by each State may need scrutiny. Taken individually, some measures,
like travel bans once there is within-country transmission, may not be reasonable.

Fourth, the non-contribution requirement is here narrower than in the case of necessity: good faith
policies that contributed to the crisis do not exclude reliance on the plea. The standard is the same as in
force majeure, but the Commentary adds that ‘priority should be given to necessary life-saving
measures. Take note, that in the contexts of force majeure and state of necessity, much will turn on how
the standard is interpreted: whether fault, and in what degree, is necessary; whether temporal
proximity is required, etc.

Last, the measures must not create a comparable or greater peril. This is a proportionality requirement
between the measures adopted, on the one hand, and the interest protected by the obligations
impaired. The interest protected, like in the case of necessity, must ‘clearly outweigh the other interests
at stake in the circumstances. This element is likely to be met, in line with our analysis in the context of
the plea of necessity

With regard to NECESSITY, Article 25 of Articles on Responsibility of States for Internationally Wrongful
Acts provides:
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act
not in conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards which
the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness
if:

(a) the international obligation in question excludes the possibility of invoking necessity;
or

(b) the State has contributed to the situation of necessity

To successfully plead the defence of necessity, a State must fulfil the following four requirements: 8

1. There must be a grave and imminent peril

2. This peril must threaten an essential interest
3. The state’s act must not seriously impair another essential interest
4. The state’s act was the ‘only way’ to safeguard the interest from that peril.

First, there must be a GRAVE AND IMMINENT PERIL. This requirement is best understood by separating
the elements of risk and harm. What is required is that there is an imminent risk that an essential
interest will be gravely harmed

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COVID-19 and Defences in the Law of State Responsibility: Part II (ejiltalk.org/covid-19-and-defences-in-the-law-
of-state-responsibility-part-ii/)
The peril (the risk) must be ‘imminent’ in the sense that it has not materialized. Further, imminence
does not mean immediacy (as in the peril is about to happen), but rather refers to certainty. Likewise,
the harm need not have occurred at the time a State acts in a situation of necessity – after all, the point
of the defence is to prevent that harm from occurring

In short, the risk must be ascertained now that an essential interest will suffer harm (or continue to
suffer harm) in the future. The source of the harm can be a past event, an ongoing event, or an event in
the future. And the risk can refer to the occurrence of the event itself or to the materialization of the
harm as a result of the event.

The outbreak and spread of COVID-19 would appear to meet this requirement. It is an unfolding event
which poses an imminent threat of a grave harm to the world’s population. The fast spread of the
infection, coupled with the potentially high and as yet uncertain mortality rate, poses a grave harm to
the population.

Second, the peril must threaten ‘AN ESSENTIAL INTEREST’. Article 25 does not require that this be an
essential interest of the State invoking the plea, so it could be an essential interest of the international
community or, potentially, of other States. The Commentary explains that whether an interest is
essential is a relative question and that the interest relied on ‘must outweigh all other considerations …
on a reasonable assessment of the competing interests, whether these are individual or collective.

As evidenced by the decision of the WHO Director-General to classify the outbreak as a Public Health
Emergency of International Concern, the outbreak of COVID-19 poses a serious threat to the health and
lives of individuals within a State but, crucially, also in other States.

This determination is affected by the character of the interest impaired, but it seems safe to assume that
in most circumstances, the well-being of individuals and, in particular, the safeguarding of their lives will
be an essential interest.

Third, the act must not ‘SERIOUSLY IMPAIR’ an essential interest of another State or of the international
community as a whole. The balance may be differently struck when the interests impaired are protected
by human rights law.

Quarantines and isolation measures restrict, among others, individuals’ freedom of movement and of
assembly. It is arguable that the measures do not seriously impair the interests protected by these
rights, since they are only temporary measures and these are rights which are subject to derogation in
most human rights systems. This said, each case will need to be assessed independently, by reference to
the relevant interests involved.

Fourth, the act of the State must be the ‘ONLY WAY’ to protect the essential interest from the
impending harm at the time the State adopts the relevant measures. If there are other (lawful) ways to
address the threat, even if these are more costly or inconvenient, the plea will fail.

The assessment is to be made from the standpoint of the State organs adopting the measures – with the
degree of knowledge available to them at that time. It is crucial not to allow hindsight biases, which are
likely to arise once we know what measures were effective, to colour the assessment.
Protecting the essential interest in question (namely, the lives of individuals, and their wellbeing through
the continued functioning of public healthcare services), requires either containing the disease or
mitigating its effects

Whether a State is able to meet the ‘only way’ requirement will ultimately turn on the obligation
allegedly breached and whether the assessment is made by reference to the package of measures, as a
whole, or to each individual measure.

Finally, the plea may not be relied upon if the State has ‘contributed’ to the situation of necessity. The
State’s contribution must be ‘sufficiently substantial and not merely incidental or peripheral

The above analysis suggests that the argument based on state of necessity is more promising than that
based on force majeure, although there may still be some difficulties. Indeed, the plea has been
interpreted in very restrictive terms by tribunals and States may struggle to prove that their measures
were the ‘only way’ and that their prior behavior did not contribute to the situation of necessity

FORCE MAJEURE, DISTRESS and NECESSITY as a defense

None of the three defences in the law of State responsibility are applicable with certainty to every State,
let alone to all States. Much will depend on the specific obligations allegedly breached, the specific
measures impugned, and the timing of the epidemic.

Force majeure is likely to be the least relevant, since the State behaviour which is potentially in breach
of international obligations is voluntary: these are measures, that States have decided to put in place to
contain or mitigate the crises. While this is unthinkable, States could choose not to do anything about it
and continue to operate business as usual

State of necessity and distress are potentially more suitable, but in both cases there are elements
which may be difficult to satisfy.

In the case of necessity, the ‘only way’ requirement is likely to fail as there is no scientifically agreed
measure to deal with viral epidemics such as this. For distress, there will be some difficulty (but
presumably less so) in satisfying the ‘special relationship’ requirement.

These defences were drafted by the ILC, in very stringent terms, precisely to limit as much as possible
States’ ability to rely on them given that, in most cases, States will make these decisions unilaterally and
in contexts in which there is no settlement body with mandatory jurisdiction over disputes potentially
arising from these situations.