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

Robert Knox,Ntina Tzouvala

doi:10.1163/26660229-03901009

Abstract

Abstract Despite minimal prospects of success, international lawyers spent the first few months of the global pandemic discussing whether the rules of state responsibility could be invoked against states, especially China, for their acts and omissions regarding COVID-19. In this piece, we take these debates seriously, if not necessarily literally. We argue that the unrealistic nature of these debates does not make them irrelevant. Rather, we propose an ideology critique of state responsibility as a legal field. Our approach is two-fold. First, we argue these debates need to be situated within the rise of geopolitical competition between the US and its allies on the one hand and China on the other. In this context, state responsibility is always laid at the feet of one’s opponents. Secondly, we posit that my emphasising the role of states, recourse to state responsibility renders invisible the role of transnational processes of capitalist production and exchange that have profound effects on nature and set the stage for the emergence and spread of infectious diseases. Drawing from the work of the geographer Neil Smith, we argue against the ‘naturalisation’ of disasters performed much of the international legal discourse about COVID-19.

Highlights

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 United Nations (‘UN’) to find China responsible for COVID-19
China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the World Health Organization (‘WHO’) or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market.[2]. These accusations are not of concern to a small number of government-employed international lawyers, who might be called upon to put them in motion

Summary

Introduction

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. China has rebuffed such claims, at one point seeming to place responsibility for the pandemic with the World Health Organization (‘WHO’) or, more recently, with imported frozen food that allegedly triggered a super-spreader event at the Wuhan food market.[2]. These accusations are not of concern to a small number of government-employed international lawyers, who might be called upon to put them in motion. It cannot explain why these ‘impossible’ accusations have recurred with such frequency in the discourse around the pandemic From this perspective it is the sheer implausibility of these legal schemes that makes their popularity worth interrogating. 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

International Law and Ideology

State Responsibility in the Shadow of Imperial Rivalry