The recent pandemic was declared a Public Health Emergency of International Concern by the Director-General of the World Health Organization (hereinafter, “WHO”) on the 30th of January 2020. This, as per the 2005 International Health Regulations, is an ‘extraordinary event’ that, as the WHO further elaborates, is “serious, unexpected or extra-ordinary leads to trans-national consequences, and may necessitate urgent international action.” On the 11th of March 2020, the WHO declared it a pandemic. As per the WHO, a pandemic is a world-wide spreading of a disease, that occurs across a wide geographical area and thereby affects an extremely high proportion of the population. Several States have adopted measures in an attempt to contain and mitigate the rate of contagion, and many have announced states of emergency as per their own domestic laws. These measures range from social distancing, quarantining, isolation, restrictions on travel and etc.
However, COVID-19 being a trans-national problem, requires regulations and action not only of the national or local scale, but also the global level. The uncontrollably quick spread of the virus points towards the failure of International Health Regulations and the complacency of states. Since there is an impact on the international level, it brings questions of accountability and responsibility of States on the global level. Thereby, attributing such responsibility or claiming defense from such responsibility requires us to look regulations that govern such attribution like the International Law Commission’s Articles on the Responsibility of the States for International Wrongful Acts and the Vienna Convention on the Law of Treaties. Particularly, the following article shall be exploring the defense of force majeure, as an instrument used by the state to escape its economic, political and social obligations. This, is in light of recent measures adopted by China and followed by countries like India and France that are planning to issue instruments like Force Majeure certificates that shall exempt their local exporters from fulfilling their contractual or trade obligations, with international buyers.
Force Majeure under ARS
The oncoming of this virus will definitely lead to certain strains on the obligations of States in the International sphere. This may affect relations regulated by Public International law. Such strains may primarily arise from the inability of states to fulfill their obligations. Foreign Direct Investment in countries could potentially be delayed, resulting in losses and costs to the investors. Moreover, the pervasive travel restrictions are in contravention with Civil aviation agreements like the Chicago Convention of International Aviation, which provide for non-discrimination on the basis of nationality. Furthermore, the global quarantining measures that have been enacted, force citizens to be locked within their homes, restricting movement could potentially violate human rights regulations.
However, the emphasis must be laid on the uncertainty and lack of clarity that pervades. Such a situation is unprecedented, thereby there is an arising need for a flexibility and clarity in the fulfillment of these obligations. Here, we must also refer to Article 61 of the Vienna Convention on the Law of Treaties (hereinafter, “VCLT”). Article 61 of the VCLT refers to the circumstance of supervening conditions that lead to the impossibility of performance of a treaty. This serves as a limit to the concept of Pacta Sunt Servanda, which essentially highlights the legally binding nature of the treaties and the corresponding requirement of their fulfillment.
A State’s obligations exist under the International Law Commission’s Articles on the Responsibility of the States for International Wrongful Acts (hereinafter, “ARS”). These articles provide for the attribution of responsibility for the actions of states that may harm other states or groups. Further, they also provide for certain defenses against any attribution of responsibility under Chapter V. The following circumstances mentioned from Article 20 to 27 preclude wrongfulness:
- Self Defense
- Countermeasures in respect of an internationally wrongful act
- Force Majeure
- Compliance with peremptory norms
- Consequence of Invoking a circumstance, precluding wrongfulness.
Since this pandemic is of an unprecedented and uncertain nature, several countries have claimed the defense of Force Majeure under Article 23 of the ARS. Article 23 is as follows;
‘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.’
Any claim of the defense of Force Majeure would require the fulfillment of the following:
- It must be an unprecedented event or an irresistible force.
- Must be beyond the control of the state.
- Such an event shall create an absolute material impossibility in the performance of that obligation
- No state should have contributed to the causation of the event.
- The state should not have assumed the risk of the event or consented to it, having known the circumstance.
The situation does not necessarily have to be unprecedented or unforeseeable in nature. Ever since the SARS Epidemic, it is reasonably foreseeable that the world shall experience another pandemic. Therefore, to invoke the plea of force majeure, the event must fall under the meaning of “irresistible force”, which is one the requirements to invoke the plea of force majeure. As per the ILC Commentary on the ARS, the term stresses that there must be an obstacle which the State could not possibly unable to avoid or oppose by its own means. This particular force shall be causally linked with the situation of absolute material impossibility. Material refers to the kind of impossibility, whereas absolute refers to the degree of the impossibility. Further, material impossibility refers to a natural or physical event. However, the circumstance must be irresistible, so that the concerned State should have no real possibility of escaping its impact. Force majeure shall not cover circumstances, where performance of an obligation has become relatively more complicated or impractical due to a political or economic crisis. The particular inability to perform should be involuntary and in an absence of free choice.
To understand the situation better, it must be looked at more objectively. Firstly, it shall be incorrect to say that States cannot continue to operate as usually do. They may allow individuals to continue to commute and travel. Their choice to not do so reflects their apprehension that this may lead to a serious risk of infection to their people and the very possibility of spreading the infection trans nationally. Therefore, they have resorted to certain measures like social distancing, quarantining, travel restrictions, lockdowns and etc. to address the crisis. However, the plea of force majeure requires the situation to be involuntary and there should be not element of free choice. But this cannot be said so, because the implemented measures or the adopted course of conduct cannot be said to be involuntary, even if it is constrained by external events. Essentially, these states do not face an impossibility of performance of their respective obligations. Hence, this puts the states outside of the scope of force majeure, and pushes them into the defenses of necessity and distress, as mentioned in Article 24 and 25 of the ARS.
The plea of Force Majeure offers very little room for flexibility or maneuver. Unlike the limitations to Pacta Sunt Servanda as given in Article 61 of the VCLT, the standard of force majeure is kept really high to ensure that the states pursue their economic and social obligations. Under the abovementioned criteria, States have contributed to the problem culminating to this pandemic. Unintentional contributions which were carried out ‘in good faith’ and which did not themselves make ‘the event any less unforeseen’ shall not preclude reliance on the plea of Force Majeure. However, this event was not as unforeseen as it is being claimed. In the past, countries like China have dealt with similar infections. However, they still failed to put in place effective measures in order to alleviate the problem, thereby contributing to the current situation.
The defense of force majeure is a very strict one, and States have hardly been successful when invoking it as a defense under international law. The outbreak of COVID-19 results in a circumstance potentially leading to a situation of force majeure. However, States will clearly face some difficulty demonstrating the impossibility of performance of their obligations, as necessitated by Article 23. Whether the COVID 19 will cause any type of impossibility cannot be answered in general, but shall be specific to the obligation in question.
 Sun Yu and Xinning Liu, China issues record number of force majeure certificates, Financial Times, Feb. 28, 2020, https://www.ft.com/content/bca84ad8-5860-11ea-a528-dd0f971febbc
 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980.
 Christina Binder, The Limits of Pacta Sunt Servanda in International Law
 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001).
 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001). (Article 23)
 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) [Refer to Page 76 of the Commentary]. Also, See James Crawford, Jacqueline Peel, & Simon Olleson, The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, 12 EUR.J. INT’L L. 963 (2001)