Sunday, September 13, 2020

Guidi & Maisley: A Trillion Dollar Question: Who Should Pay for COVID-19?

Sebastian Guidi (Yale Univ. - Law) & Nahuel Maisley (Univ. of Buenos Aires - Law; New York Univ. - Law) have posted A Trillion Dollar Question: Who Should Pay for COVID-19? (New York University Law Review, forthcoming). Here's the abstract:

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit-approach” draws on a deep-seated conception of international law: states have a sovereign “right to be left alone;” the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit-approach; not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic, while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments of the lawsuit-approach (based on the International Health Regulations and on the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit-approach faces difficulties stemming from the lack of deep normative agreement, in international law, on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit-approach is led back to the global conversation about the allocation of losses it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”) making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids, and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit-approach relies on international law as a means to achieve “corrective justice,” while denying its implications for “distributive justice.” We argue that this is conceptually impossible: The general understandings we need to allocate responsibility for the pandemic are inherently distributive: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independently of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit-approach might be unpleasantly surprised of where that road may lead them.