Why force majeure is relevant to measures against coronavirus

Globally, the number of confirmed coronavirus cases and deaths increases every single day.

The coronavirus outbreak was declared a Public Health Emergency of International Concern by the Director-General of the World Health Organisation (WHO) on January 30, 2020 which, according to the 2005 International Health Regulations, is an ‘extraordinary event’ which, as the WHO further explains, is ‘serious, unusual or unexpected’ carries trans-national implications, and may require immediate international action.

 

In February 2020, the World Health Organization designated the disease COVID-19, which stands for coronavirus disease 2019. On 11 March 2020, the WHO declared it a pandemic.

 

Several States have taken drastically sweeping measures in an attempt to contain and mitigate the spread of the disease, and many have declared states of emergency in accordance with their own domestic laws.

 

On 23 January 2020, China imposed a lockdown in Wuhan and other cities in Hubei province in an effort to quarantine the epicentre of an outbreak of coronavirus disease 2019 (COVID-19).

On 9 March 2020, Italy was the first country to impose a nationwide lockdown to slow Europe’s worst COVID-19 outbreak. Similar measures have been adopted in many other States—including some of EAC countries, namely Rwanda, Kenya, Tanzania and Uganda—as the virus continues to spread.

The measures mostly involve social distancing, including quarantines, self-isolation and travel restrictions.

These measures, alongside the virus itself, have had significant personal and human costs already.

But they are also having a wider impact on the global economy, and on supply chains and other commercial relations.

To mitigate the effect of these measures on businesses, China has, for example, issued force majeure certificates, in accordance with its domestic law, to a record number of local exporters so as to exempt them from fulfilling contractual agreements with overseas buyers.

Several countries have pledged prodigious sums of money to stave off their economies from the effects of the virus and measures to address it.

It is noteworthy that the measures put in place by States to address it, may also affect relations regulated by public international law.

An obvious example is travel ban imposed by very many States. This would severely affect obligations under bilateral civil aviation agreements, as well as the provisions on non-discrimination on the basis of nationality contained in the Chicago Convention on International Civil Aviation.

Likewise, isolation measures, quarantines, and cancellation of mass events encroach on individual liberties, including the rights to freedom of movement and freedom of assembly under human rights law.

An interesting question is: how would these lockdowns be relevant to the standards of force majeure and necessity?

Under normal circumstances, States are not permitted to take lockdowns, especially barring people from freedom of movement, among others. Such an act constitutes an internationally wrongful act of a State, triggering the international responsibility of that State.

‘Force majeure’ is loosely described as any situation that’s irresistible, where a State concerned has no real possibility of escaping its effects. ‘Necessity’ denotes those exceptional cases where the only way a State can safeguard an essential interest threatened by a grave and imminent peril.

Whichever standard is more relevant; the priority should be given to necessary life-saving measures. This seems perfectly reasonable to take actions designed to save lives, as nothing is comparable to human health.

The contexts of both force majeure and state of necessity are relevant to any measures taken to halt gatherings of every kind so as to prevent the spread and save lives of people.

The lockdowns, of course, could in no way create a comparable or greater peril. The interest protected, like in the case of necessity, must clearly outweigh the other interests at stake in the normal circumstances.

Force majeure is indeed relevant, since the State took measures decidedly to contain or mitigate the crises.

Where a State could choose not to do anything about it and continues to operate business as usual, but this would have costly effects of that State. An extraordinary situation needs an extraordinary action.

Applying state of necessity is equally suitable. State of necessity is relevant as the WHO had recommended, perhaps scientifically, to impose aggressive measures to contain the spread of the virus.

Epidemiologically, there is no single way to address this pandemic. There’re two main approaches, containment and mitigation, which require social distancing measures—either for individuals who have been exposed to the virus, or for the population at large. Social distancing measures can be very limited, like requiring self-isolation of those potentially exposed to the virus, to more extreme, like the lockdowns imposed in several countries.

In the absence of an effective vaccine or mainstream antiviral drugs, a package of these measures (taken together) are, on the whole, the only way to contain or mitigate the spread of the disease.

Travel bans, for example, is one of the effective means as it limits spread of virus from one state to another.

Even at individual level, social distancing is relevant in spite of temporarily curtailing some of our individual rights for the sake of protecting public health.

The writer is a law expert.

The views expressed in this article are of the author.

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