LEGAL JUSTIFICATIONS

General Concepts

According to Article 32 of ARSIWA 2001: The responsible State may not rely on the
provisions of its internal law as justification for failure to comply with its obligations under this
part. Additionally, Art. 3 of the same Act states that: The characterization of an act of a State as
internationally wrongful is governed by international law. Such characterization is not affected by
the characterization of the same act as lawful by internal law.

International Trade in the Covid-19 Situation

COVID-19 related trade policy measures. In particular, some countries have decided to
establish export controls over certain medical products (eg medical ventilators, certain drugs,
personal protective equipment) in the form of temporary export bans or the addition of
licensing/authorisation requirements. Other countries, concerned with the security of their food
supplies, have introduced export restrictions over specific agricultural products, and these
decisions have generated genuine concerns about potential food shortages in the global market
in the second part of the year.

In principle, these measures are WTO-compatible. While they may be regarded as

prohibited quantitative restrictions on exports, they are potentially justified as necessary to
protect public health. Of course, they need to be applied in a manner that does not discriminate
between WTO Members and cannot constitute a disguised restriction on international trade.

ARSIWA Legal Justifications

Necessity: Chapter V, Art 25 of ARSIWA

1. Necessity may not be invoked by a State as a ground for precluding the

wrongfulness of an act not in conformity with an international obligation of that State
unless the act: (a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and (b) does not seriously impair an essential
interest of the State or States towards which the obligation exists, or of the international
community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for

precluding wrongfulness if: (a) the international obligation in question excludes the
possibility of invoking necessity; or (b) the State has contributed to the situation of
necessity.

The term “necessity” is used to denote those exceptional cases where the only way a
State can safeguard an essential interest threatened by a grave and imminent peril is, for
the time being, not to perform some other international obligation of lesser weight or
urgency. Under conditions narrowly defined in article 25, such a plea is recognized as a
circumstance precluding wrongfulness.

“Necessity” consists not in danger to the lives of individuals in the charge of a State official
but in grave danger either to the essential interests of the State or of the international
community as a whole. It arises where there is an irreconcilable conflict between an
essential interest on the one hand and an obligation of the State invoking necessity on the
other. These special features mean that necessity will only rarely be available to excuse
non-performance of an obligation and that it is subject to strict limitations to safeguard
against possible abuse.

As of April 23, 2021 as reported by WHO, the confirmed number of cases reached
144,099,374. Millions of jobs have already been lost and millions of livelihoods are at risk.
According to the global economic outlook of the World Bank, most countries are expected
to face recessions. These are grim figures that reflect the immense challenges and human
suffering caused by this pandemic. Nor is an end to COVID-19 yet in sight.

Over the past four years, growth in international trade hit the lowest level in the second
quarter of 2020, with a reduction of 13 per cent from the previous quarter. Preliminary data
from the third quarter of 2020 suggest that, while rebounding from the second quarter,
global trade growth on a year-over-year basis remains negative, with a decline of about
4.5 per cent.

With the current situation, it is evident that the restrictions in trade are justified under the
principle of Necessity. The restrictions are made to safeguard an essential interest against
a grave and imminent peril to public health.

Force Majeure: Chapter V, Art 23 of ARSIWA

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.

A situation of force majeure precluding wrongfulness only arises where three elements are
met: (a) the act in question must be brought about by an irresistible force or an unforeseen
event; (b) which is beyond the control of the State concerned; and (c) which makes it
materially impossible in the circumstances to perform the obligation. The adjective
“irresistible” qualifying the word “force” emphasizes that there must be a constraint which
the State was unable to avoid or oppose by its own means. To have been “unforeseen”
the event must have been neither foreseen nor of an easily foreseeable kind. Further the
“irresistible force” or “unforeseen event” must be causally linked to the situation of material
impossibility, as indicated by the words “due to force majeure … making it materially
impossible”. Subject to paragraph 2, where these elements are met, the wrongfulness of
the State’s conduct is precluded for so long as the situation of force majeure subsists.
 The COVID-19 pandemic may fall within the scope of force majeure as contemplated by
Par. 1, Art. 23 of ARSIWA. The three elements are present: 1) the pandemic was an
irresistible force given its novelty, the constraint being the absence of any cure available at
the time; it is also unforeseeable prior to its outbreak in December 2019; 2) the pandemic
was beyond the control of the states affected by it, since the pandemic was highly
contagious and had spread out in a matter of a few months to almost every corner of the
world; 3) complying with the international obligation also became materially impossible
since states imposed movement control restrictions and bans in order to curb the spread
of the pandemic.

The exceptions in Par. 2, Art 23 of ARSIWA does not apply. First, there is still a lack of
evidence that the pandemic is an intentional bioweapon gone wrong as western countries
would like to believe since the outbreak first emerged in China and spread throughout the
world because of its highly contagious nature, therefore, the COVID-19 pandemic should
be treated as an “act of God”. Second, Paragraph 2(b) deals with situations in which the
State has already accepted the risk of the occurrence of force majeure, whether it has
done so in terms of the obligation itself or by its conduct or by virtue of some unilateral act.
This reflects the principle that force majeure should not excuse performance if the State
has undertaken to prevent the particular situation arising or has otherwise assumed that
risk. Most of the international trade laws in question were enacted before there was risk of
a global pandemic which affected the economy of almost every state negatively. Only
those states which accepted the responsibility for the risk during this pandemic cannot
claim force majeure to avoid responsibility. But the assumption of risk must be unequivocal
and directed towards those to whom the obligation is owed.

Other Legal Justifications

General Agreement on Tariffs and Trades (GATT) 1994

Article XI General Elimination of Quantitative Restrictions

GENERAL RULE: 1. No prohibitions or restrictions other than duties, taxes or other

charges, whether made effective through quotas, import or export licenses or other
measures, shall be instituted or maintained by any contracting party on the importation of
any product of the territory of any other contracting party or on the exportation or sale for
export of any product destined for the territory of any other contracting party.

EXCEPTIONS: 2. The provisions of paragraph 1 of this Article shall not extend to the
following:

(a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical

shortages of foodstuffs or other products essential to the exporting contracting party;

(b) Import and export prohibitions or restrictions necessary to the application of

standards or regulations for the classification, grading or marketing of commodities in
international trade;

(c) Import restrictions on any agricultural or fisheries product, imported in any form,*
necessary to the enforcement of governmental measures which operate: (i) to restrict
the quantities of the like domestic product permitted to be marketed or produced, or, if
 there is no substantial domestic production of the like product, of a domestic product
for which the imported product can be directly substituted; or (ii) to remove a temporary
surplus of the like domestic product, or, if there is no substantial domestic production of
the like product, of a domestic product for which the imported product can be directly
substituted, by making the surplus available to certain groups of domestic consumers
free of charge or at prices below the current market level; or (iii) to restrict the
quantities permitted to be produced of any animal product the production of which is
directly dependent, wholly or mainly, on the imported commodity, if the domestic
production of that commodity is relatively negligible.

Any contracting party applying restrictions on the importation of any product pursuant to
subparagraph (c) of this paragraph shall give public notice of the total quantity or value of
the product permitted to be imported during a specified future period and of any change in
such quantity or value. Moreover, any restrictions applied under (i) above shall not be
such as will reduce the total of imports relative to the total of domestic production, as
compared with the proportion which might reasonably be expected to rule between the
two in the absence of restrictions. In determining this proportion, the contracting party
shall pay due regard to the proportion prevailing during a previous representative period
and to any special factors* which may have affected or may be affecting the trade in the
product concerned.

Burden of Proof

The Panel in China – Raw Materials found that "the burden is on the respondent …
to demonstrate that the conditions of Article XI:2(a) are met in order to demonstrate that no
inconsistency arises under Article XI:1."

Scope of the Restriction

"Turning to the phrase '[e]xport prohibitions or restrictions' in Article XI:2(a), we note

that the words 'prohibition' and 'restriction' in that subparagraph are both qualified by the
word 'export'. Thus, Article XI:2(a) covers any measure prohibiting or restricting the
exportation of certain goods.

Duration of Restriction

The Appellate Body in China – Raw Materials found that in the context of Article
XI:2(a), the phrase "temporarily applied" describes a measure "applied for a limited time, a
measure "taken to bridge a passing need".

Purpose of Restriction

In China – Raw Materials, the Appellate Body concluded that the term "critical
shortages" in Article XI refers to those deficiencies in quantity that are crucial, that amount to
a situation of decisive importance, or that reach a vitally important or decisive stage, or a
turning point.
REFERENCES:

Gruszczynski, L., The COVID-19 Pandemic and International Trade: Temporary

Turbulence or Paradigm Shift? Retrieved from www.cambridge.org

Draft Articles on Responsibility of States for Internationally Wrongful Acts, International

Law Commission, 2001, Retrieved from Draft articles on Responsibility of States for
Internationally Wrongful Acts, with commentaries - 2001 (un.org)

Responsibility of States for Internationally Wrongful Acts, International Law Commission,

2001.

WTO Analytical Index: GATT 1994 – Article XI (Jurisprudence), Retrieved from

gatt1994_art11_jur.pdf (wto.org)

The global economic outlook during the COVID-19 Pandemic: A changed world, Retrieved
fromhttps://www.worldbank.org/en/news/feature/2020/06/08/the-global-economic-outlook-
during-the-covid-19-pandemic-a-changed-world

UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT: Impact of the

Covid-19 https://unctad.org/system/files/official-document/osg2020d1_en.pdf