International Law of State Responsibility and COVID-19: an Ideology Critique

Abstract

In its initial stages, the international legal discourse around COVID-19 focused heavily on two narrow questions: first, the international legality of lockdowns, and secondly whether China could be held legally responsible for the pandemic. In September 2020, Donald Trump called upon the UN to find China responsible for COVID-19. Similarly, Australia called for a fact finding mission over the question of China’s state responsibility. For its part China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the WHO or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market. These accusations are not simply of concern to a small number of government-employed international lawyers. The popular international law blog EJIL:Talk! announced in late 2020 that its most read post for the year was a piece by Peter Tzeng on the possibility of holding China internationally responsible for the pandemic. Tzeng’s piece was part of – and itself generated – a flurry of academic commentary on China’s potential legal responsibility.

Of course, one could retort here that the combination of veto rights at the UN Security Council, the absence of obvious grounds for ICJ jurisdiction and the operation of sovereign immunity make the possibility of China (or any other state for that matter) facing proceedings over COVID-19 wildly implausible. Questions of proof – both in the light of non-cooperation but also sheer uncertainty – and causation make the suggestion that anyone will be held internationally responsible sound like a cruel joke. One would be tempted to dismiss, then, these discussions as being irrelevant, as the expressions of an out-of-touch profession on the part of lawyers and simple rhetoric on the part of states.

However, it is important to resist this ‘realist’ impulse. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic. Indeed, from this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. Why, in such a practice-orientated field as law, does such an seemingly impracticalset of accusations recur? Our argument is that law, including international law, has many functions: it represses, it distributes resources, opportunities and violence, and it produces representations of our relationship with the world, or, in other words, it operates as an ideology. Our intervention is concerned with this latter, ideological function of law. In particular, we seek to detect and critique the specific representations about the relationship between states, capital, and global disaster that are implicitly articulated through discussions of state responsibility for the pandemic.

Keywords: State responsibility, Covid-19, international law, ideological function of law