Who Should Pay for COVID-19? The Inescapable Normativity of International Law

56 Pages Posted: 11 Sep 2020 Last revised: 1 Jun 2021

See all articles by Sebastian Guidi

Sebastian Guidi

Yale University, Law School

Nahuel Maisley

University of Buenos Aires (UBA) - Faculty of Law; New York University School of Law; Republic of Argentina - Consejo Nacional de Investigaciones Científicas y Técnicas (CONICET)

Date Written: May 13, 2021

Abstract

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit approach” draws on a deep-seated conception of international law: States have a sovereign “right to be left alone”; the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit approach—not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments made using the lawsuit approach (based on the International Health Regulations and the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit approach faces difficulties stemming from the lack of deep normative agreement in international law on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit approach leads back to the global conversation about the allocation of losses that it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”), making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit approach relies on international law as a means to achieve corrective justice while denying its implications for distributive justice. We argue that this is conceptually impossible. Allocating responsibility for the pandemic implicates inherently distributive concepts: To decide, an adjudicator would need to rely on a Pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independent of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit approach might be unpleasantly surprised by where that road leads them.

Keywords: Corrective Justice, Distributive Justice, International Law, State Responsibility, COVID-19

Suggested Citation

Guidi, Sebastian and Maisley, Nahuel, Who Should Pay for COVID-19? The Inescapable Normativity of International Law (May 13, 2021). 96 New York University Law Review 375 (2021), Available at SSRN: https://ssrn.com/abstract=3689279 or http://dx.doi.org/10.2139/ssrn.3689279

Sebastian Guidi

Yale University, Law School ( email )

Nahuel Maisley (Contact Author)

University of Buenos Aires (UBA) - Faculty of Law ( email )

Av. Figueroa Alcorta 2263
C1425CKB
Argentina

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Republic of Argentina - Consejo Nacional de Investigaciones Científicas y Técnicas (CONICET) ( email )

Avda. Rivadavia 1917
Buenos Aires, Federal Capital C1033AAJ
Argentina

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