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

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.