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covid-19 Claims and the Law of International Responsibility


This paper considers the role that the law of international responsibility, both State responsibility and responsibility of international organizations, plays in claims and disputes about covid-19. It proceeds by examining in turn the rubrics of the internationally wrongful act, content of responsibility, and implementation of responsibility. On most points, blackletter law is perfectly capable of answering the questions raised by claims related to covid-19. But evolutionary potential inherent in the normal international legal process should also be recognised, whether it manifests itself by further strengthening current rules, elaborating vague rules by application, filling gaps in current law by generating new practice or even, exceptionally, revisiting rules currently in force.


Introduction
The spread of covid-19 in the first half of 2020 and reactions thereto by States and other actors raise important questions of international law. This is perhaps most obvious for different specialist fields and institutions, where almost every field has something to contribute. Consider the following non-representative law.8 No doubt, readers will be able to point to other and better examples. The modest point that I want to make is that different specialist fields deal with the challenges of covid-19 very differently, with an eye to peculiarity of drafting of primary rules and availability of international institutions and third-party dispute settlement or review mechanisms. In short, it is not an easy task to take stock of covid-19-related developments even within each specialist institution, let alone across whole specialist fields. But it is even more challenging to evaluate the effects of covid-19 on the generalist vocabulary shared across the specialist islands of the normative ocean of international law, such as actors, sources, and responsibility. In practice, generalist issues are likely to be framed very differently, depending on whether they arise in an inter-State negotiated dispute or are presented before an investor-State tribunal, a human rights tribunal or review institution, one of the many specialised inter-State dispute settlement mechanisms, or indeed before a domestic court.9 Still, it is doubtful that the generalist vocabulary of international law would be incapable of articulating claims relating to covid-19. A flick through the sections on actors, sources, and responsibility in the standard 20th century blackletter text shows how the short century, while expanding enormously the breadth and depth of international law10 and changing everything else from empires to jazz, did little to these rubrics between 1905 and 1992.11 Nevertheless, there is no time better than a global crisis to revisit the solidity of generalist underpinnings of the international legal order. In this paper, I propose to reflect on how claims about covid-19 are shaped by and will in turn shape the law of international responsibility.12 Secondary rules of responsibility apply to breaches of primary rules of any content, and very different primary rules may play a role in claims regarding Laundering  covid-19, as the examples in the first paragraph of this section suggest.13 It would be too hasty to discuss in detail particular claims before the precise legal framing and evidentiary basis are available, since assumptions and prescriptions on the basis of incomplete information are likely not to age well (although I will refer to some claims by the US as illustrations).14 Instead, consider the following hypotheticals for a flavour of covid-19-related responsibility issues: did Dreamland, where covid-19 originated, breach its customary obligations not to injure Elfwood, where the pandemic spread, treaty obligations to notify international organizations, and human rights obligations within its territory and extraterritorially, particularly regarding right to life? Is Dreamland responsible for an international organization's failed efforts to act within its mandate in suppressing the pandemic due to untimely information provided and Dreamland's political influence in the organization? I refer to 'claims' since that is how State responsibility is likely to be operationalised in practice, without departing from the technical position, further discussed in Section 2, that responsibility arises out of a breach of an international obligation and not the presentation of a claim by the injured actor.
In line with the tripartite structure of the 2001 International Law Commission's ('ilc') Articles on responsibility of States for internationally wrongful acts ('2001 ilc Articles'),15 I will consider in turn the internationally wrongful act (Section 2), content of responsibility (Section 3), and implementation of responsibility (Section 4). The focus of this paper is on the nuts and bolts of the legal order, which will frame and organise claims related to covid-19.16 My main claim is that blackletter law is capable of answering most questions raised in these disputes -but also that evolutionary potential inherent in the normal international legal process should not be underappreciated, whether it manifests itself by further strengthening current rules, elaborating vague rules by application, filling gaps in current law by generating new practice or even, exceptionally, revisiting rules currently in force.17 In short, international lawyers should take full advantage of the sophisticated framework of reasoning already provided by current law but also not be amiss of the manner in which (mis)application of international law in these strange times in turn shapes the applicable rules.

Internationally Wrongful Act
The starting point of the law of international responsibility is that every internationally wrongful act of an actor entails international responsibility of that actor. To give an example from a recent advisory opinion of the International Court of Justice ('icj'): having found that the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, it follows that the United Kingdom's continued administration of the The same proposition applies to responsibility of international organizations.19 The custom-reflecting Article 2 of the 2001 ilc Articles spells out the starting point in terms of the two sufficient and necessary criteria for an internationally wrongful act, applicable to responsibility incurred in inter-State relations,20 as well as invoked directly by non-State actors:21 There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.22 The same proposition also applies to conduct and breach by international organizations.23 These basic principles of international responsibility are applicable to conduct and breach in relation to covid-19 by States and international organizations in different specialist fields of international law, be they related to trade, human rights, investment, environment, injury to other States, or any other matters. Application of most rules on the internationally wrongful act to covid-19-related responsibility claims does not seem to me to be particularly problematic. Issues of attribution can raise hard questions of proof, particularly when the primary obligation in question calls for prevention and therefore attribution of omissions is at issue. But in legal terms these questions have clear answers. Under the customary law of both State responsibility and responsibility of international organizations, conduct of organs and agents, whether acts or omissions, will be attributable to the respective actors.24 The same point applies to questions of breach. Whether covid-19 'could have been stopped at the source. It could have been stopped quickly and it wouldn't have spread all over the world'25 raises hard questions about facts as well as content of primary rules -is there a specific customary rule addressed at obligations to supress pandemics? Can a rule be particularised from the State's general 'obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States'26 or formulated by analogy with the arguably distinct obligation to prevent significant transboundary harm, particularly developed in environmental law?27 Can the dissatisfaction with (for some) insufficiently active performance of functions by an international organization -e.g. that it has 'failed in its mission' -be articulated in the technical terms of an obligation binding between the organization and the State?28 And the character of obligation and breach may well have implications for the form of reparation and actors entitled to invoke responsibility.29 But in terms of the wrongful act itself, the answer is provided by the basic blackletter proposition that a breach is conduct not in conformity with what the primary rule in force at the time may require, be the obligation reflective of a peremptory norm of general international law (jus cogens) or included in a trivial and unpublished bilateral treaty of no interest to anybody beyond its Parties.30 Two narrower points may, however, raise harder questions. The first relates to the much-debated topic of responsibility shared between multiple international actors,31 perhaps alluded to in the criticism by the US of the relationship See the generally sceptical position of the US, shared to at least some extent in many quarters: 'We reiterate our view, particularly in light of the scarcity of practice in this area, that many of the rules contained in the [2011] Draft Articles fall into the category of progressive development rather than codification of the law, a point that the General Commentary introducing the Draft Articles expressly recognizes. Indeed, we agree with the Commission's assessment that the provisions of the present Draft Articles do not reflect the current law in this area to the same degree as the corresponding provisions on state responsibility. This is an important assessment to keep in mind when considering whether these Draft Articles-many of which contain similar or identical phrasing to the corresponding Articles on State responsibility-adequately reflect the differences between international organizations and states' , Remarks of the US (Simonoff) to the Sixth Committee (13 October 2017)  determination and application of current law shapes future rules (whether one expresses the point in a living or a dead language).36 The second point may be put more briskly. If none of the safety valves expressed within primary rules (e.g. vague rules that take into account exceptional circumstances in application, qualifications articulated within obligations, or exceptions) can contain the wrongfulness of conduct, is there any other legal argument available?37 In particular, could the extraordinary tension be resolved by invocation of circumstances precluding wrongfulness, with necessity as the most obvious but not the only example?38 'In principle, unfortunately never in practice' is the track record of invocation over the last two decades of the rule on necessity reflected in Article 25 of the 2001 ilc Articles.39 There is no obvious reason to query the leading modern author's40 scepticism about the likely success of circumstances precluding wrongfulness in defence of potential covid-19 claims.41 (Whether the decisions emanating from the Argentinean investor-State arbitrations are a valuable subsidiary means for determination of necessity is a different matter.42) Indeed, the first 36 Modern technologies that officials increasingly use for expressing their views on topics of international law, such as Twitter, have not obviously changed the normal standards of the international legal process, which already call for reduction of the weight to be given to practice of a public decision by an international tribunal to consider invocation of force majeure regarding covid-19 is in line with the scepticism.43 A more interesting question is whether, once the law-making dust has settled, rules such as custom purportedly reflected in Article 25 will still be good law. If States do invoke necessity on a widespread basis and in a manner clearly departing from the 2001 ilc Articles -and, more importantly, do not challenge that invocation by other actors44 -the relevant community could plausibly perceive the long list of cumulative criteria in Article 25 to be too restrictive. For example, should 'the only way' in Article 25(1)(a) be replaced by 'no other reasonable way' from the provision on distress in Article 24(1)? Is there a real need for the long list of cumulative criteria, provided that the 'grave and imminent peril' standard in Article 25(1)(a) is satisfied? How strictly, if at all, should the criterion of non-contribution in Article 25(2)(b) be applied? Should necessity be moved to the category of circumstances precluding wrongfulness that do not call for compensation?45 Or, conversely, is the (impossibly) narrowly circumscribed Article 25 just the right fit for a rule of this character, which would otherwise pull on the thread unravelling the entire international juridical fabric?46 While the prospect may be intellectually tantalising, two considerations are likely to stimmy the evolutionary potential. First, there will be significant differences of framing between fields that provide for exceptions and derogations within primary rules (human rights, trade law), fields having a mixed record with providing and interpreting such exceptions (investment 43 The respondent State in an investment arbitration requested an extension for the filing of its written briefs, and relied on force majeure in law of treaties and State responsibility as excusing a breach of obligation to arbitrate in good faith. The Tribunal found that it did 'not need to rule or opine on the existence or not of force majeure as a legal matter' because '[t]he question here relates to the filing of a written submission' and 'the proceeding can move forward, albeit with some delay, in a socially responsible manner by adapting to the new reality of communicating remotely' , Press remarks are not a pleading before an international tribunal or a formal position refined by multiple pairs of eyes in a foreign ministry, and it would be unhelpful to scrutinise it by reference to technical jargon or paragraph numbers. But President Trump's observation provides an opportunity to reflect upon the technical elements of a valid compensation claim. It seems to me that the mundane and technical questions of proof, injury, causality, and loss are likely to be very important in practice.53 Details would, of course, depend upon the factual circumstances and legal framing but three questions provide a good starting point: first, is there an internationally wrongful act in the first place? Secondly, is the injury caused by the internationally wrongful act? Thirdly, are there other reasons that can sway compensation in either direction? I will consider these questions in turn. Is there an internationally wrongful act in the first place? Recall that, as discussed in the previous section, modern international law conceptualises the wrongful act as the basis for international responsibility, which also includes rules on content of responsibility such as compensation.54 (Primary rules may themselves provide for obligations analogous to reparation, e.g. compensation in investment, human rights, or environmental law, but that relates to a conceptually different issue.) A wrongful act necessarily requires the breach of an obligation, and for practical purposes of determining reparation it is important to identify what breach that is: some breaches may be subject to particular (judicial) mechanisms or be easier to demonstrate as causing injury. At least in the discussion regarding responsibility for (failing to supress) the spread of covid-19, it is important to be clear whether the primary rule allegedly breached relates to failure to prevent the spread or failure to inform about the spread, which will have different content, possibly also different source and 52 Remarks (n 25). 53 The structure, may be owed to different actors, and subject to different mechanisms of dispute settlement and enforcement. Secondly, is the injury caused by the internationally wrongful act? Custom imposes an obligation on States to make full reparation caused by the wrongful act.55 As the ilc explained, 'the subject matter of reparation is, globally, the injury resulting from and ascribable to the wrongful act, rather than any and all consequences flowing from an internationally wrongful act' .56 The question of causality is key for evaluating a claim of the kind suggested by President Trump.57 It seems to me that three separate aspects of causality may arise here. The first question is general: to quote from a recent icj judgment, is 'there … a sufficiently direct and certain causal nexus between the wrongful act … and the injury suffered by the Applicant'?58 In covid-19 claims, that legal standard has to be weighed by reference to the apparently long chain of events, with many acts and omissions by various actors standing between the wrongful act and injury. The second question relates to a particular aspect of the first: is the chain of causality broken by the injured actor's own conduct being the proximate cause of their damage?59 The third question is narrower in scope: even if an obligation is breached, is the injury caused by that breach? The icj practice provides examples of claims where procedural obligations or obligations of prevention were found to have been breached but no compensation was awarded because the injury had not been caused by those breaches.60 Thirdly, are there other reasons that can affect compensation caused by the wrongful act in either direction? Five possible arguments come to mind, which with a nod to the late and lamented Ennio Morricone may be divided into the (two) good, (two) bad, and (one) ambiguous. The first bad legal argument is punitive damages, overwhelmingly rejected by States and international tribunals: '[c]ompensation should not … have a punitive or exemplary character' , sayeth, rightly, the icj.61 Similarly, an injured State 'is not … entitled to be put in a better position than that in which it would have been absent such unlawful conduct' by an award leading to a windfall.62 The second bad legal argument, at least in the eyes of the ilc,63 is a limitation of full compensation so as not to cripple the responsible actor. The 2001 ilc Articles as well as the 2011 ilc Articles on responsibility of international organizations take the view that exclusion of indirect and remote damages is a sufficient expression of the principle of proportionality for compensation;64 the effect on the responsible actor is, by their lights, not a legal concern of the secondary rules.65 The ambiguous argument relates to injury by concurrent conduct, for example by conduct by a number of States (or international organizations) leading to the same injury.66 On one view, explicitly taken by the ilc, concurrency does not affect obligations to provide full reparation.67 On another view, suggested more obliquely by the icj, 'particular issues may arise with respect to the existence of damage Much to the concern of international organizations themselves: 'who, in the comments it submitted together with a group of other organizations, criticised the principle set forth in draft article 30 [2011 ilc Articles (n 12) art 31] that a responsible international organization is required to make "full reparation for the injury caused by the internationally wrongful act". The reason given is that the principle "could lead to excessive exposure taking into account that international organizations in general do not generate their own financial resources"' , Yearbook of the International Law Commission: Volume ii: Part One and causation. The damage may be due to several concurrent causes' .68 The two good legal arguments are mitigation and contribution, the latter of which does not obviously fit the factual pattern of claims about covid-19.69 As to mitigation, the Full Iran-United States Claims Tribunal recently noted that ' [u] nder international law, a failure by an injured State to take reasonable steps to limit the losses it incurred as a result of an internationally wrongful act by another State may result in a reduction of recovery to the extent of the damage that could have been avoided' .70 A lay observer's reading of newspaper reports suggests some scope for mitigating acts that States as well as other affected actors could have undertaken. In short, causality, concurrency, and mitigation are the principles on which claims are going to turn.

Implementation of International Responsibility
Implementation of international responsibility may be dealt with more briskly than the previous two sections. Most arguments that implicate invocation of international responsibility fall under the customary proposition that responsibility may be invoked by the injured actor, commonly either the actor to which the obligation is individually owed or a specially affected State regarding an obligation owed to a group of international actors.71 It is tempting to 68 Certain Activities Compensation (n 55) [34]. The Court did introduce the passage by reference to 'cases of alleged environmental damage' but later in the judgment it confirmed that its approach 'is consistent with the principles of international law governing the consequences of internationally wrongful acts' , [41]. 69 2001 ilc Articles (n 15) art 39 ('In the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought'). In recent dispute settlement practice, contribution to injury has been applied to situations where the claimant, be that a State or a non-State actor, has in some sense initiated or contributed to the chain of events that led to the wrongful act, see cases summarised in read President's Trump remark, fully quoted in the previous section ('If you take a look at the world-I mean, this is worldwide damage. This is damage to the U.S., but this is damage to the world') as alluding to the (slightly less settled) right of a State other than the injured State to invoke responsibility so as to claim the performance of the obligation in the interests of the injured States or of the beneficiaries of the obligation,72 but legal evaluation is best left for a more considered articulation. Rules on plurality of injured and responsible actors, while endlessly fascinating as a topic for academic discussion, are too open-textured to provide much of a practical guidance to decision-makers at the moment.73 The clearer arguments regarding implementation have fallen under the rubric on countermeasures, at least in two guises. The discussion is in its early stages as I write these lines, so it seems safest to limit the engagement to recalling the rules and identifying the key questions. Since the US has been predominant in this discussion, it is helpful to recall its position expressed in 2016, broadly but not completely in line with the 2001 ilc Articles (with similarities and differences addressed in footnotes):74 The customary international law doctrine of countermeasures permits a State that is the victim of an internationally wrongful act of another State to take otherwise unlawful measures against the responsible State in order to cause that State to comply with its international obligations, for example, the obligation to cease its internationally wrongful act.75 Therefore, as a threshold matter, the availability of countermeasures … requires a prior internationally wrongful act that is attributable to another State.76 As with all countermeasures, this puts the responding State in the position of potentially being held responsible for violating international law if it turns out that there wasn't actually an internationally wrongful act that triggered the right to take countermeasures, or if the responding State made an inaccurate attribution determination. That is one reason why countermeasures should not be engaged in lightly.
Additionally, under the law of countermeasures, measures undertaken in response to an internationally wrongful act … that is attributable to a State must be directed only at the State responsible for the wrongful act77 and must meet the principles of necessity and proportionality, including the requirements that a countermeasure must be designed to cause the State to comply with its international obligations-for example, the obligation to cease its internationally wrongful act78-and must cease as soon as the offending State begins complying with the obligations in question.79 The doctrine of countermeasures also generally requires the injured State to call upon the responsible State to comply with its international obligations before a countermeasure may be taken-in other words, the doctrine generally requires what I will call a "prior demand."80 The sufficiency of a prior demand should be evaluated on a case-by-case basis in light of the particular circumstances of the situation at hand and the purpose of the requirement, which is to give the responsible State notice of the injured State's claim and an opportunity to respond.81 77 cf ibid Commentary 4 ('A second essential element of countermeasures is that they "must be directed against" a State which has committed an internationally wrongful act …. Countermeasures may not be directed against States other than the responsible State.'). 78 cf ibid art 51 ('Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question'). The apparently small difference in wording indicate significant disagreement due the US' 'concern[] that the term "commensurate" may be interpreted incorrectly as to have a narrower meaning than the term "proportional" … the rule of proportionality permits acts that are tailored to induce the wrongdoing state's compliance with its international obligations' , 'Draft Articles One type of countermeasure publicly discussed relates to removal of sovereign immunity for claims against China in the US courts.82 In addition to the general standards identified by the US itself in the excerpt above -an anterior wrongful act, 'prior demand' , necessity and proportionality, compliance not punishment -it is worth noting that the icj has been sceptical about arguments invoking countermeasures to deny immunity in domestic courts,83 and that it may lead other States to reciprocate with similar denials.84 The other type of measure that could be related to the countermeasures is the US suspension of funding to the who.85 Internationally wrongful suspension or refusal ('Before taking countermeasures, an injured State shall … notify the responsible State of any such decision to take countermeasures and offer to negotiate with that State' , although perhaps at least partially implicit in what is described as 'prior demand' in the excerpt), art 52(3)(b) ('Countermeasures may not be taken, and if already taken must be suspended without undue delay if … the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties'). These omissions are in line with the position taken by the US in 2001, describing the rubric of obligations not affected by countermeasures as unnecessary and vague, criticising the rule on suspension of countermeasures when the dispute is submitted to a tribunal, and suggesting that countermeasures may be taken both prior to and during negotiations, '2001 Comments' (n 78)  The case is not precisely on point because the denial took place through courts, rather than legislative or executive decision, which raised additional issues, and Italy did not articulate the 'last resort' argument in the technical terms of countermeasures, but the scepticism for the argument is clear, 'Further enforcement efforts, including disclosure of Russian assets in the United States, are likely to prompt Russia to take reciprocal measures against U.S. property and to justify such measures by asserting that U.S. courts violated international law first. … following this Court's entry of the interim judgment in September 2015, the Russian government sent a diplomatic note protesting that judgment and warning that any attempts to enforce it would lead to reciprocal countermeasures. … It is possible that Russia might rely on recent legislation to take such steps. In November 2015, Russian President Vladimir Putin signed into law a bill concerning the jurisdictional immunity of foreign states and their property in Russia. Although the bill is generally consistent with the restrictive view of sovereign immunity, as reflected in the fsia and the U.N. Convention on Jurisdictional Immunities of States and their Property, it contains a provision that permits Russian courts to limit the immunities of a foreign state and that state's property on the basis of reciprocity, depending on the treatment of Russia to pay dues to international organizations86 has been sometimes conceptualised as countermeasures, memorably by Antonios Tzanakopolous.87 Beyond general questions on conceptual framing, normative desirability, and applicability to international organizations in general88 and those within the United Nations system in particular,89 the general standards accepted by the US would need to be complied with -an anterior wrongful act by the who, 'prior demand' by the US, necessity and proportionality, compliance not punishment. These criteria are not easy to satisfy in a cumulative manner, even without considering compliance with the seemingly even more expansive standards in the 2001 ilc Articles.

Conclusion
This paper discussed the role that international responsibility may play in covid-19 claims, dealing in turn with the rubrics of the internationally wrongful act (Section ii), content of responsibility (Section iii), and implementation of responsibility (Section iv). It is not easy to discuss such a topic in general terms. Very different questions of wrongfulness, reparation, and implementation arise when claims are made regarding different primary obligations in an inter-State non-judicial setting regarding responsibility of States and international organizations to prevent the spread of pandemic, in human rights tribunals regarding excessive restrictions or failure to protect, or in investment tribunals regarding discriminatory aid. The complexity is not surprising either. General rules of State responsibility usually do not dictate a particular result on their own but strengthen the normative sinews of the international legal order and supplement particular primary rules and (tertiary) institutions. This interaction will continue in the era of covid-19: after all, this is not the first nor, one suspects, the last great crisis faced by the international community. The blackletter customary law will seep into the framing of challenges and