Responses to the COVID-19 Pandemic and Customary Law Defences: Force Majeure and the State of Necessity

David Collins

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Chapter 10 Responses to the COVID-19 Pandemic and Customary Law Defences: Force Majeure and the State of Necessity

In: International Investment Law and the Pandemic

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David Collins

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Type:: Chapter

Pages:: 175–192

DOI:: https://doi.org/10.1163/9789004711204_012

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Abstract

This chapter examines the legal implications of government responses to the COVID-19 pandemic in relation to customary international law (CIL) defences, such as force majeure and the state of necessity. As countries implemented strict measures to mitigate the pandemic’s effects, many businesses, including foreign-owned entities, faced significant disruptions, leading to potential claims of regulatory overreach and demands for compensation. The chapter cautions that the responses to the pandemic may have been disproportionate, especially given the evolving understanding of COVID-19 as a health risk primarily to vulnerable populations. Critical of the effectiveness of lockdowns and other restrictions, the chapter suggests that these measures often exceeded World Health Organization recommendations and deviated from established pandemic preparedness strategies. This raises questions about the legitimacy of states invoking CIL defences to justify their actions during the pandemic. Focusing on three primary defences under CIL: force majeure, distress, and necessity, the chapter highlights the challenges states face in successfully invoking these defences, particularly the burden of proof required to demonstrate that their actions were justified under the circumstances. It concludes by emphasizing the need for a careful assessment of how states might resist legal challenges related to their pandemic responses, advocating for adherence to established principles of international investment law to maintain legitimacy and stability in the face of exceptional claims arising from the pandemic.

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International Investment Law and the Pandemic

Series: Nijhoff International Investment Law Series, Volume: 26

E-Book ISBN:: 9789004711204

Publisher:: Brill | Nijhoff

Print Publication Date:: 01 Nov 2024

Subjects
- International Law
  - International Dispute Resolution & Arbitration
  - International Commercial, Trade & Investment Law

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Chapter 10 Responses to the COVID-19 Pandemic and Customary Law Defences: Force Majeure and the State of Necessity

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International Investment Law and the Pandemic

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