On December 31, 2019, along with China’s report of atypical pneumonia cases to the World Health Organization (WHO), the so-called COVID-19 outbreak entered the global agenda. Due to the lack of sufficient scientific knowledge about this new type of coronavirus, nation-states with little knowledge about how to control the spread of the disease resorted to general emergency measures in response to the outbreak. Unfortunately, these measures proved inadequate for stopping the viral spread. Next, almost all states were forced into taking extraordinary measures. By virtue of applying these strong measures during the pandemic, states were accused of breaching some rules of international law. A flood of cases is expected to be filed in international courts asking for relief arising from these breaches. This article will examine the question of whether states can rely on the circumstances precluding wrongfulness, such as distress, force majeure, or state of necessity, as defenses that justified a lack of fulfillment of some international obligations during the fight against the virus.

Force majeure refers to the occurrence of an irresistible force or an unforeseen event beyond the control of the state, making it materially impossible in the circumstances to perform an obligation. The outbreak of the COVID-19 virus seems to accord with the definition of an unforeseen event because there was a lot of uncertainty about how the virus was transmitted, its symptoms, and many other aspects. On the other hand, to rely on this defense, a state has to prove that it was unable to fulfill its international obligations because the pandemic as an event beyond its control made it materially impossible. Alternatively, a situation forcing the state to act against the law must involve an irresistible force. In the latter case, it is not necessary to prove whether the irresistible force was unforeseen or not. Therefore, even if COVID-19 was not unforeseen after a while, yet was still acting upon the state as an irresistible force, it would be possible to accept that this element of force majeure exists. Scientific research, especially the lack of knowledge about the virus and uncertainty about ways to deal with the outbreak at the beginning of the COVID-19 crisis, support the idea that states did not know what to do or how to proceed. However, it is not possible to give a general answer to the question about whether the coronavirus made it materially impossible for states to fulfill their obligations. To reach a conclusion, the type and the content of the relevant obligation must be considered. It may be that legal obligations were not realized in the context of measures taken against COVID-19, but that the latter did not amount to an absolute impossibility only a relative one. There was no element of material impossibility in cases of wrongfulness that occurred in connection with the COVID-19 virus. Hence, one cannot plead force majeure in this regard.

State of necessity may be invoked if circumstances make a state’s ability to fulfill its obligations either very difficult or impossible. First of all, according to the information reports in the press, COVID-19 was capable of causing heavy damage to humanity due to the initial rate of transmission and the fact that it affected almost every country in the world. Additionally, there is no cure. Therefore, it is possible to argue that the spread of the COVID-19 virus, both in the beginning and later on, met the criteria of a grave and imminent peril. Secondly, the number of people infected, in intensive care, and the mortality rate fulfilled the criteria of a serious impairment to the essential interests of the state and the international community. Another condition of necessity is that it must be the only way to safeguard such interests. However, if there are other legal methods, even if they are more expensive or inconvenient, a state of necessity cannot be relied on as a defense. In the context of COVID-19, it is difficult to argue that the states’ extraordinary measures were the only way to act. However, the events that occurred while attempting to resolve some of the uncertainty about this disease might undermine this conclusion.

Distress exists when the author of the act in question has no other reasonable way of saving their own life or the lives of other persons entrusted to the author’s care. There is no doubt that coronavirus was a threat to human lives. Therefore, the first criterion is fulfilled in this regard. However, in terms of the second criterion which refers to a special connection between the author and other people, the general relationship between the state and its population is not specific enough to meet this criterion. According to the commentary on draft articles, the state must be in a position to act consciously to save the life of the person in danger.

This analysis indicates that when evaluating circumstances precluding wrongfulness, the type and the effect of the illegal act in question, the type of the obligation breached, and many other factors need to be considered to find the correct answer. Just choosing an excuse without a rigorous analysis of the case would be proven wrong. Therefore, the force majeure is the least suitable defense in this case, since it is obvious that states took the relevant measures to stop the pandemic voluntarily. When referring to necessity, the “only way” condition is not fulfilled due to the lack of scientific knowledge about the virus, which makes it difficult to argue that the state’s acts were necessary. Finally, when referring to distress, proving the special relationship criterion will be difficult.