Since it first emerged, the global COVID-19 pandemic has raised myriad questions of general legal responsibility. Within international law, the question has arisen as to whether the actions and omissions of various states may result in their international responsibility. In particular, a number of recent publications have invoked the international responsibility of China for the spread of the COVID-19 pandemic—both for the failure of the state to contain the virus, and for its failure to notify other states and international authorities of its existence in a timely manner, as is required by international health regulations.Footnote 1 But the means to evaluate responsibility in this context remains elusive. As Bradley and Helfer wrote in the recent agora published by the American Journal of International Law on “The International Legal Order and the Global Pandemic”:
The pandemic also raises difficult issues of state responsibility. The virus originated in China, and questions have been raised about whether the government did enough to contain its spread and whether its actions and statements may have misled other countries and contributed to the crisis. Whether and how to evaluate the Chinese government's conduct—to learn lessons for the future, if nothing else—is an important and ongoing topic of international concern.Footnote 2
Various proposals have been made for an appropriate and applicable legal rule that would achieve a successful outcome should a state pursue legal redress for the harm caused by China's purported mismanagement of the pandemic. One such proposal that has garnered significant support is that of transboundary harm. A number of scholars and commentators have asserted that the international transmission of a virus may be classified as transboundary harm, and that this may be sufficient to establish the international responsibility of China for the harm caused by the spread of COVID-19.Footnote 3 In doing so, commentators have relied heavily, and somewhat optimistically, on some vaguely comparable criteria in relation to the jurisprudence on transboundary harm on the one hand, and the global pandemic on the other. These vague similarities are cited to justify an extended definition of transboundary harm to include international contagion. This proposal suffers from a number of deficiencies. Its proponents have consistently misinterpreted a number of fundamental aspects of transboundary harm, and have failed to critically examine others. First, the importance of the legal maxim sic utere tuo ut alienum non laedas associated with transboundary harm has been overstated. Second, the substantive relevance of legal property and sovereign territory to transboundary harm has been overlooked. Third, the natural environment as the medium through which transmission of transboundary harm occurs has been neglected. Fourth, the consequences of extending transboundary harm to include events such as international contagion have been entirely ignored.
Collectively, these misconceptions not only permit the inclusion of international contagion in the definition of transboundary harm, but also advocate (inadvertently) for its extension beyond environmental events to include human events such as migration and refugee movement. This may at first glance appear to be a highly tenuous argument, but for the fact that it has been made before, numerous times, and by numerous scholars of international law. At a time when there is great support in certain quarters for the exclusion of migrants and refugees based on a purported risk to public health, the rush to classify human movement as transboundary harm is an inherently dangerous proposal to advocate.
The current article considers whether international contagion may be classified as transboundary harm. Part II analyses transboundary harm in international law. It considers the precedential value of the Trail Smelter arbitration—a leading case on transboundary harm—and its relevance to the question of international contagion. It then analyses the broader international legal framework in which transboundary harm functions to establish the international obligations and responsibilities of states.
Part III considers the legal merits of the proposal that international contagion may be classified as transboundary harm. It analyses the legal value of the sic utere tuo maxim associated with transboundary harm, and argues that the legal maxim does not per se constitute an international legal obligation, but rather attaches to an international legal obligation as a means of describing its fundamental principle. It then proposes an extended set of criteria, drawing on the work of international environmental law scholars, that supports a common definition of transboundary harm, and excludes the extension of the definition to international events with a distinctly human character.
Part IV argues that there are potentially grave consequences to the classification of such events as transboundary harm, and provides a detailed analysis of how the same conception became briefly popularised in relation to refugee movement. The article concludes that the classification of international contagion as a transboundary harm is not only a manifestly unsound legal proposition, but that it fundamentally ignores that risk it poses to the position and treatment of the individual in international law.
Having provided an outline of what the article is, it is perhaps necessary to clarify what the article is not. The article concerns effect, not prevention. It does not challenge the duty of a state to prevent injury or harm under international law. A number of scholars have already considered important questions of prevention in respect of China and COVID-19, including the duty to prevent and contain infectious diseases,Footnote 4 the duty to undertake measures of due diligence,Footnote 5 the duty to notify,Footnote 6 as well as the jurisdictional basis of future litigation,Footnote 7 and available defences according to the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts.Footnote 8 It is also important to note that the current article does not argue in any categorical sense that China does not bear international responsibility for the harm caused by COVID-19. There may indeed be any number of rules, principles, or provisions of international law that establish the responsibility of China (and/or other states, for that matter) for acts or omissions associated with the spread of the virus, but an evaluation of these questions falls outside the scope of this article, which argues only that the international contagion of a virus cannot, and should not, be classified as transboundary harm.
I. Transboundary Harm in International Law
A common theme among the articles that argue in favour of international transmission as transboundary harm is an overreliance on the Trail Smelter arbitration to the exclusion of numerous contemporary legal instruments and judicial decisions that have far greater precedential value to the question of international contagion. The current section analyses this precedential value, and examines the developments that have occurred in the field of environmental law in the intervening decades since Trail Smelter. It argues that the importance of the Trail Smelter arbitration has been grossly overestimated, and that the international legal framework, which prescribes the sovereign rights and corresponding obligations concerning transboundary harm, is definitively established by a number of environmental treaties, concluded many decades after the Trail Smelter arbitration, and of which the subject matter clearly provides for a strict reading of transboundary harm.
A. The Precedential Value of the Trail Smelter Arbitration
Though not the first notable international arbitration on the subject of transboundary harm,Footnote 9 the 1938 U.S. v. Canada arbitration, also known as Trail Smelter, has been cited regularly as relevant and applicable to the question of China's international state responsibility for the transmission of COVID-19. Yet it would appear that its precedential value in legal scholarship far outweighs its actual precedential value in law. While the arbitration has been cited many times and in relation to many questions of international law by scholars and commentators, it has in fact served in very few instances as a judicial precedent. It has been noted by one scholar that “[t]he customary international law of transboundary pollution […] is based on a very small number of inconclusive adjudications and a mountain of official declarations and unofficial commentary seeking to make something out of them.”Footnote 10 There are some dangers to this kind of artificial inflation. As Merrill has noted, specifically referring to Trail Smelter:
Such heavy reliance on a single precedent breeds overstatement as analysts attempt to reinterpret the case to fit various hypothetical circumstances and new cases. Frequently, the precedent can be applied only by raising it to a level of abstraction far beyond the range of its logic.Footnote 11
An illustrative example is the American Law Institute's (“ALI”) Restatement (Second) of the Foreign Relations Law of the United States, in which the only precedent cited on the topic of a state's liability to another in connection with pollution is the Trail Smelter arbitration, despite the vast number of other important precedents.Footnote 12 Merrill's observation on single precedent reliance (and indeed the ALI's single precedent reliance in respect of liability) is pertinent to the question of international contagion as transboundary harm in two respects. First, in relation to the incredibly broad interpretation of the term “transboundary harm” and the imputation to it of subject matter far outside the scope of environmental pollution, and second, in relation to the conflation of transnational state liability with international state responsibility. Within the literature on China's responsibility for international contagion, no attempt has been made to distinguish between liability and responsibility. Rather, it appears that scholars and commentators have assumed that the state is liable (pursuant either to the sic utere tuo maxim, the Trail Smelter arbitration, or both) and therefore the state bears international responsibility. There are some aspects of this assumption that should be addressed.
As has been noted in relation to the precedential value of Trail Smelter that “state liability differs from state responsibility insofar as it covers situations in which no illegal or unlawful conduct has occurred, although the conduct has triggered harm.”Footnote 13 In that respect, “Trail Smelter cannot be reconciled with international rules of state responsibility, in that states can be liable for transboundary environmental damage in the absence of a breach of an international obligation.”Footnote 14 This makes both the search for a judicial precedent in Trail Smelter, and the labeling of China as “internationally responsible” according to Trail Smelter futile activities. If the state is internationally liable, it is not necessary to establish any kind of harm, transboundary or otherwise. If the state is internationally responsible, its failure to fulfill an international obligation cannot be established on the basis of Trail Smelter.
The Trail Smelter decision itself relied on very few cases of transboundary harm. In considering what constituted an injurious act, the arbitrators instead referred to a series of U.S. cases involving air pollution between various U.S. states, due to the absence of international precedents concerning air or water pollution between nation states.Footnote 15 The arbitrators also had recourse to Eagleton's The Responsibility of States in International Law, citing the well-known passage, “[A] State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.”Footnote 16
In that sense, they drew a parallel between the general theory of obligation and responsibility as these concepts are applied within the law of international responsibility, and the liability of a state for transboundary harm, but as Eagleton himself wrote in the cited text:
[W]hile the responsibility of a state is fundamentally based upon the control which it exercises within its borders, it does not follow that the state may be held responsible for any injury occurring therein. The law of nations does not make the state a guarantor of life and property. It is answerable, under international law, only for those injuries which are internationally illegal in character, and which can be fastened upon the state itself … [T]he responsibility of the state is to be ascertained from the duties of control within its territorial limits and over its agents laid down for it by positive international law.Footnote 17
As several scholars have noted, the combination of domestic cases that established the liability of US states, and Eagleton's theory of international state responsibility, was not a strong basis for the creation of a judicial precedent. It follows that reliance on Trail Smelter as the singular important precedent for transboundary harm is a dubious position to hold, much more so where the arbitration is cited as having precedential value for the extension of transboundary harm to include events outside the scope of environmental law. For these reasons, Anderson has noted that:
[I]t is difficult to discover the basis on which Canada would be responsible at international law for the damage caused by the smelter. The Tribunal did not identify the nature of the international legal obligation that Canada breached in this case, and in any event this question was not put to it. The Tribunal's solution was to impute liability for harm caused by a source within a state's borders and affecting the territory of another state, a solution that may be analyzed in terms of strict liability, nuisance, or a failure to meet a due diligence obligation, although the Tribunal did not refer to any of these three principles.Footnote 18
The history of the Trail Smelter arbitration shows quite clearly that its precedential value is somewhat inflated by some scholars and commentators, and that in reality, its own foundation in international law is, to a degree, questionable. Furthermore, its suitability as a judicial precedent for other events that may or may not constitute transboundary harm is dubious. This is certainly the case for events outside the scope of the subject matter addressed by the Trail Smelter arbitration: events such as human movement and international contagion. A more consistent and reliable source of law on transboundary harm is found in international environmental law.
B. The Contemporary Framework of International Environmental Law
In the intervening decades between the Trail Smelter arbitration and today, the international legal framework concerning transboundary harm has become much more clearly defined. This is particular true of the definition of the term within international law, which has become a well-established concept of international environmental law. A number of international instruments of environmental law that have been concluded have built a legal framework of sovereign obligations and responsibilities in relation to transboundary harm. Perhaps the most well-known is the 1972 Declaration of the United Nations Conference on the Human Environment, more commonly known as the Stockholm Declaration, which provides in its Principle 21 that states enjoy the “sovereign right to exploit their own resources pursuant to their own environmental policies” tempered by the corresponding “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”Footnote 19 At the Rio Conference on Environment and Development in 1992, Principle 21 was reaffirmed as Principle 2 of the Declaration on Environment and Development. The 1979 Geneva Convention on Long-range Transboundary Air Pollution and the 1985 Vienna Convention for the Protection of the Ozone Layer both consider in their preambles “the pertinent provisions” of the Stockholm Declaration, “in particular principle 21[.]”
In 1991, Canada and the United States concluded an Agreement on Air Quality, which directly addressed the rights, obligations, and responsibility of both states in respect of transboundary air pollution. The agreement also reaffirms Principle 21 of the Stockholm Declaration in its preamble, and drew on the earlier Great Lakes Water Quality Agreement of 1978, and the 1980 Memorandum of Intent Between the Government of the United States of America and the Government of Canada Concerning Transboundary Air Pollution, both concluded between the two states, and both designating specific subject matter as transboundary harm.
Finally, in 2001, the International Law Commission adopted the text of the Articles on Prevention of Transboundary Harm from Hazardous Activities. The articles apply “to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences.”Footnote 20 The Articles do not address the subject matter of transboundary harm, but provide a framework for the exchange of information, emergency preparedness, and the settlement of disputes. But the Articles should be approached with caution. They address questions of liability, not of responsibility, and of prevention rather than effect. As the general commentary provides:
The articles deal with the concept of prevention in the context of authorization and regulation of hazardous activities which pose a significant risk of transboundary harm. Prevention in this sense, as a procedure or as a duty, deals with the phase prior to the situation where significant harm or damage might actually occur, requiring States concerned to invoke remedial or compensatory measures, which often involve issues concerning liability.Footnote 21
In that sense, the Articles concern “the duty to prevent as opposed to the obligation to repair”.Footnote 22 Most importantly, the Articles do not define transboundary harm.
In proposing the classification of international contagion as a transboundary harm, it appears that proponents have either ignored the existing framework of international environmental law, or have taken the theoretical aspects of Principle 21 of the Stockholm Declaration (that states enjoy the “sovereign right to exploit their own resources pursuant to their own environmental policies” but have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”), and divorced it from the subject-matter of the instruments to which they apply. The subject-matter of the relevant instruments is quite clear. The hazardous polluting substances that are capable of constituting transboundary harm include phosphorus, sulphur, carbon and fluoride compounds, mercury, and other toxic heavy metals. Considering this, it is somewhat difficult to conceive that the definition of transboundary harm could be extended to include a virus, or that the transmission of that virus across state lines could be interpreted within the international legal framework of environmental law, as constituting transboundary harm. This becomes all the more improbable when one considers the means of transmission. In the case of hazardous substances, the transmitter of harm is the natural environment—a shared water source, the atmosphere, the soil that becomes contaminated. In the case of a virus, it is the human being that is the transmitter, and therefore the medium for the international injury. The legal equivalence of contaminated water and a sick person is neither legally sound, nor ethically just, but more concerning is the suggestion that persons moving across borders can constitute an international harm.
II. International Contagion and Transboundary Harm
Several scholars and commentators have cited the sic utere tuo maxim as a means to establish the international responsibility of China for the spread of COVID-19, with little regard to the value and meaning of the maxim, or its application in practical terms to the issue of international contagion. Part II considers the value of the sic utere tuo maxim that is so closely associated with transboundary harm, and argues that the legal value of the maxim is vastly overestimated. Building on the work of environmental law scholars, subsection B proposes an extended set of criteria, to identify and classify transboundary harm. It argues that legal precedent must guide the construction of transboundary harm, and that the existing law precludes its extension to include international contagion. Subsection B also considers several possible arguments against the use of the proposed criteria and responds to those arguments. Part II concludes that international contagion may not be classified as transboundary harm and that to do so would be to “raise it to a level of abstraction far beyond the range of its logic.”Footnote 23
A. The Sic Utere Tuo Maxim
The legal maxim sic utere tuo ut alienum non laedas (or simply “sic utere tuo”) has been cited repeatedly in recent times as the basis upon which China's international responsibility for the spread of COVID-19 may be established.Footnote 24 This is rather an oversimplification of state responsibility, and an erroneous attribution of a legal quality to what is quite simply a description of a legal principle. The maxim is expressed in both domestic property law and international environmental law as the obligation to refrain from using one's property to the disadvantage of a neighbour, so that a private individual may not use his or her land to the detriment of another private land-holder, and a state may not use or permit the private use of its sovereign territory to the detriment of another state. The application of the maxim in domestic property law stretches back many hundreds of years,Footnote 25 and has since then maintained a relatively stable and predictable application. Its modern iteration in domestic law is the “no-nuisance” obligation, attached to the ownership of private property, and in that respect, it has not departed in any remarkable way from its historical precedents.Footnote 26
In international law, its historical application has been somewhat less predictable. Primarily, it has become far more closely associated with international environmental law than with the law of immovable property, as the detrimental effect of the use (or misuse) of a respondent state's sovereign territory is usually sustained by the natural environment of the plaintiff state. Several international environmental conventions and declarations express the sic utere tuo maxim as the obligation to ensure that activities within a state's jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of a state's territorial jurisdiction.Footnote 27
The apparent fixation on the sic utere tuo maxim is likely an effect of the overreliance on Trail Smelter, as the arbitral commission enunciated the maxim so clearly and specifically in that instance. In awarding compensation to the U.S. for the transboundary air pollution emanating from a smelter in Trail, British Columbia, and causing damage to the environment of the U.S. state of Washington, the arbitral tribunal found that:
[U]nder the principles of international law […] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.Footnote 28
The tribunal expressed this obligation as a “general principle of international law”, drawing on a number of international and domestic disputes concerning environmental damage, and referring to the sic utere tuo maxim.Footnote 29 Since then, the principle has been cited in other notable international decisions, but which are far more relevant to the prevention of harm than to its effect. Each of these cases marginally broadened the scope of states’ international obligations by providing that transboundary harm could arise in a variety of circumstances, therefore expanding the scope of a state's duty to prevent. In the 1949 Corfu Channel case, the International Court of Justice extended a state's duty to prevent beyond any state of war or peace, referred to a “general and well-recognized” principle of international law that irrespective of a state of war, it was “every state's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.”Footnote 30 The Court also determined that if a state knew of the harmful effects that might befall another state due to its own acts or omissions, and failed to disclose that knowledge, it would be responsible to those that suffered resultant harm from its wrongful conduct,Footnote 31 reiterating a state's duty to notify as being critical to the prevention of harm. Several decades later, in the Nuclear Tests judgment of 1974, the Court held that the obligation to prevent transboundary harm extended beyond adjacent states to include states that did not share a territorial border with the injurious state.Footnote 32
The distinction between prevention and effect is one that the Court itself noted in the Nuclear Weapons Advisory Opinion. It specified that: “[T]he question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects”Footnote 33 [Emphasis added]. The more recent Pulp Mills case is often cited as an authority on transboundary pollution, though much like the Nuclear Weapons Advisory Opinion, the case is relevant to prevention rather than effect. The Court held:
In the view of the Court, the purpose of Article 36 of the 1975 Statute is to prevent any transboundary pollution liable to change the ecological balance of the river by co-ordinating […] the adoption of the necessary measures. It thus imposes an obligation on both States to take positive steps to avoid changes in the ecological balance.Footnote 34
The Court made similar observations in the Gabčíkovo-Nagymaros Project case in respect of the duty to prevent harm:
In the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.Footnote 35
It appears that the distinction between the obligation to prevent transboundary harm and the proper classification of an effect as transboundary harm has at times not been clearly made out in the relevant scholarship, leading to a number of presumptions about the international responsibility of China. Coco and de Sousa Dias assert quite rightly that “States have the duty to prevent, halt and redress any significant transboundary harm emanating from their territories, regardless of who caused it or the lawfulness of the activity generating it.”Footnote 36 However, in applying the no-harm principle to the spread of COVID-19, the authors assumed that international contagion constitutes transboundary harm. Referring to the criteria articulated in the ILC Draft Articles on the Prevention of Transboundary Harm From Hazardous Activities, the authors conclude that “[T]he COVID-19 outbreak ticks all those boxes.”Footnote 37
Other scholars and commentators have premised their analysis on the presumption that China is responsible for causing transboundary harm through its management of the COVID-19 pandemic, and that Trail Smelter is a suitable legal precedent to establish such international responsibility.Footnote 38 Sanklecha has concluded, without further supporting evidence, that:
Although [the Trail Smelter Case and the Pulp Mills on the River Uruguay case] have recognised the no-harm principle in cases of transboundary environmental damage, the principle can also be extended to cover harm arising from the outbreak of highly contagious infectious diseases such as COVID-19.Footnote 39
These commentaries fundamentally assume that the scope of transboundary harm is sufficiently broad to permit the international contagion of a virus as environmental damage, which hinges on a number of considerations that must be evaluated before such a statement can be made. As the tribunal noted in Trail Smelter, “the real difficulty often arises […] when it comes to determine what, pro subjecta materie, is deemed to constitute an injurious act.”Footnote 40 It is precisely this question that seems to have been either overlooked or assumed by many scholars and commentators.
The first issue to address is the relevance in law of the sic utere tuo maxim, which has been frequently cited as key to the classification of COVID-19 as transboundary harm. This presumption is deficient in two ways. First, it attaches disproportionate importance to the sic utere tuo maxim itself, to the exclusion of the rule it describes. This conflates the maxim with the rule in terms of its legal quality. Many of the arguments in favour of the classification of COVID-19 as transboundary harm are based on the erroneous presumption that the description of a legal rule either constitutes, or is synonymous with, the rule itself. In that sense, the argument that COVID-19 may be classified as transboundary harm is based on the presumption that the sic utere tuo maxim itself prohibits states from causing harm to other states. As a result, the subject matter of transboundary harm is considered secondarily (or not at all). Such arguments rely on the establishment of a direct causal nexus between the conduct of China and the detrimental effect on other states, supported by the sic utere tuo maxim alone, and accompanied by the erroneous assumption that it imports a negative international legal obligation.
Second, it divorces the maxim from the legal rule that it describes, leading to the application of the maxim to situations not covered by the rule. Under this limited construction of transboundary harm, the transmission of COVID-19 may be contorted to fit, but the proper legal classification of transboundary harm requires the fulfillment of several additional criteria, each of which is indispensable to the definition. The sic utere tuo maxim is not a free-floating legal rule, and although it may be a very good moral precept, it is utterly useless on its own. In and of itself, it neither imposes any legal obligations, nor requires any legal remedy, or, as one judge noted, it “determines no right and defines no obligation”.Footnote 41 In other words, the maxim is mere verbiage. It is certainly treated as such within the context of international environmental law, in which the principle is almost exclusively expressed.
As Jervan has noted, “[S]urely, not all disadvantageous effects caused by environmental factors should fall within the scope of the obligation not to cause transboundary harm.”Footnote 42 Rather, it is only a statement that “a party may damage the property of another where the law permits, and may not where the law prohibits.”Footnote 43 It cannot be “applied” as a permissive or prohibitive mechanism per se. Until the relative law is ascertained, the maxim is superfluous.Footnote 44 Instead, as the jurisprudence makes clear, it is attached very specifically to the lawful use of property or territory. As a consequence, it cannot be isolated and applied to various other fields of law as a separate legal rule that imposes a general international obligation to refrain from doing harm. It would therefore be a mistake to apply the maxim to purportedly unethical conduct with a transboundary quality, and presume that to do so has the legal effect of prohibiting that conduct.
B. Criteria for the Classification of Events as Transboundary Harm
A number of environmental law scholars have argued that there are four criteria that must be present in an event in order for it to be properly classified as transboundary harm. Utilising this model, and building on its criteria, I propose two further criteria, drawn from treaty law and judicial precedent, that may identify certain effects as a product of transboundary harm.
As Jervan, Xue and Schachter have noted, the first criteria requires that the harm must result from human activity. In essence, this requirement excludes acts of force majeure. As “events that have a purely environmental character” necessarily cannot result from an act or omission on the part of the respondent state, acts of force majeure are excluded unless the event had a “reasonably proximate causal relation to human conduct.”Footnote 45
This leads to the second criteria, which requires that the harm must be a physical consequence of human activity.Footnote 46 Transboundary harm cannot, for example, manifest in the economy of the claimant state. It requires instead that the harmful effect be sustained by the air, water, or soil of the claimant state. A wrongful act or omission that results in an injury other than a strictly physical injury cannot properly be classified as transboundary harm.
Third, and quite obviously, for an event to be transboundary in nature, the physical effect must manifest across national boundaries. This does not mean that the injurious state and the injured state need share a territorial boundary. The transboundary element is satisfied even where states do not share a frontier, as provided by the ICJ in the Nuclear Tests case.Footnote 47
Fourth, in much the same way that domestic property law prohibits unreasonable interference with the property of a neighbour, the purported harm must exceed a certain level of severity for it to be considered an international legal harm.Footnote 48
That said, the above criteria only account for positive environmental law, that is, those legal elements of transboundary harm that have been affirmatively stated in treaty and judicial precedent. However, there are a number of elements that appear to be so fundamental to transboundary harm that the need for their clarification has not necessarily arisen, particularly because the principle is so specific to one field of international law. In that sense, there are certain criteria that are implicit in the definition of transboundary harm that are perhaps obvious to scholars of international environmental law, but that require identification when others seek to broaden the scope of its application. In that respect, I propose a fifth and sixth element, necessary for an event to constitute a transboundary harm, and which categorically exclude the application of the sic utere tuo maxim to the spread of COVID-19, and all other events that are the result of human movement.
The first (or rather, fifth) criterion concerns legal property and sovereign territory, and provides that the purportedly harmful and internationally wrongful act must be the direct consequence of the use of property or sovereign territory in the strictest legal sense of the terms. The jurisprudence on transboundary harm does not provide any precedent to even suggest that the object of unlawful conduct occasioning injury may be anything other than legal property or sovereign territory. In relation to property specifically, this is not limited to the property of the state but extends to the lawful use of private property—that is, the authorised use of property by a private entity.
This is especially relevant to the extension of transboundary harm to include events concerning international human movement. The legal rights that attach to the ownership of property—being the rights to acquire and divest—do not extend to human beings of parts thereof. For much the same reasons that the human body is not considered to be the legal property of the person that inhabits it, and the human being is not the legal property of the state of which she is a subject, a state does not exercise property rights over persons under its jurisdiction. Not only have many centuries passed since the subjects of a state were regarded as its legal property, but domestic and international law in fact revile the treatment of persons as legal property for obvious reasons.
Additionally, as the duty to refrain from using one's property to the detriment of another is a corollary duty of the ordinary rights and obligations associated with the ownership of property, it cannot exist as a duty in respect of persons. This is not only true in respect of the invalid classification of persons as legal property, but as the theory of transboundary harm for international contagion implies, the jurisprudence on transboundary harm does not incorporate the private acts of individuals. As neither a person, nor parts of the human body can be legally bought nor sold, the use of property required for an event to be transboundary harm cannot be substituted by the movement of human beings. As the harm must result from the wrongful use of property or sovereign territory, transboundary harm cannot arise from the state's “use” of its subjects.
The question of immovable property, however, has in recent times become a more interesting one. Though it was first posited many months ago, it has only recently been acknowledged by states that the virus may in fact have originated in the Wuhan Institute of Virology, as opposed to a wet market in the same city. While I make no judgement on that, the distinction would have consequences for this criterion. If it were the case that the virus originated in the Wuhan Institute, this may well satisfy the criteria for the use of property, as the Wuhan Institute is in essence a government facility. If it were not the case, and the virus did indeed originate in a wet market and was transmitted to humans through animals, then it too may satisfy the property or territory criterion, but would fail in other respects. The harm would not have a “reasonably proximate causal relation to human conduct”.Footnote 49 Second, the conduct that purportedly gave rise to the virus in the case that it originated in a wet market would not exceed a level of severity for it to be considered an international legal harm.Footnote 50 The consumption of food cannot be said to constitute severe conduct of a level high enough to fulfill the criteria of transboundary harm, irrespective of the severity of the effects.
It may then be asked whether the actions of individuals do not originate in the use of state territory effecting the actions of those subjects. This would reflect the somewhat abstract construction that state policy requires, permits, or prohibits certain private conduct that may affect transboundary harm.Footnote 51 This question presents a fundamental problem concerning causality. In the case of a pandemic such as COVID-19, the most direct causal nexus is not drawn between the conduct of the state and the transmission of the virus to others, but between the private activities of persons and the transmission of the virus to others. While the laws and policies of a state most definitely have a direct impact on the conduct of those subject to its jurisdiction, in the context of establishing transboundary harm, this is yet another link in a causal nexus that then becomes ever more tenuous. Again, this may appear to be an absurd argument, but this is not the first time that it has been suggested that the improper use of sovereign territory by a state may give rise to a transboundary harm in the form of human movement. As part IV demonstrates, this argument was once entertained by refugee law scholars as a means of holding states of origin internationally responsible for the creation of refugee movement.
The second (or sixth) criterion provides that the transmission of the injurious substance must occur through a shared natural resource, that is, through the atmosphere, water, soil, or through the development of land.Footnote 52 Once again, the jurisprudence on transboundary harm does not establish the transmission of harm through a medium other than the natural environment. Despite the fact that many viruses are of course airborne, it is without question that the international aspect of this harm has been caused by human movement. It is the reason for lockdowns within states and the reason that international travel has all but come to a total halt. To suggest that the cause of this harm has been primarily atmospheric rather than human is to ignore the realities of the past two years. To exclude human movement from the construction of causation is illogical at best. It would require someone to stand on one side of an international border and transmit the virus to someone standing on the other side. That is not how the world came to be crippled by COVID-19. Excluding this unlikely scenario, the classification of international contagion as transboundary harm does rely quite heavily on the international movement of persons, and as jurisprudence does not support a construction where the transmitter of harm is a human being, international contagion cannot be properly classified as transboundary harm.
III. The Consequences of Misclassification
As already stated, it is not the first time that a proposal has been made for a broad interpretation of transboundary harm, encompassing the “wrongful use” of objects other than property or territory. Notably, the sic utere tuo maxim was at one point promoted by a number international refugee law scholars as a viable legal mechanism to establish the responsibility of states of origin for the “harm” of imposing a refugee burden on a state of reception, thus acting as a kind of deterrent measure against human rights abuses resulting in refugee movement.Footnote 53 Although it received some limited, but enthusiastic support at the time, the proposition was not made the subject of any serious academic engagement and its validity as a legal concept went largely unchallenged, ostensibly due to the discomfort it aroused in its comparison of refugee movement with the spread of noxious fumes or contaminated water. Perhaps as a result of the lack of academic engagement with the proposal, it now appears to have been revived as a possible legal recourse to a very different international legal problem, but one that once again has the human being at its centre: that of state responsibility for international contagion. Had it been the subject of a scholarly rebuttal, the same arguments advanced in the current article could have been applied just as logically to the classification of refugee movement as transboundary harm.
In a 1939 article on the movement of refugees and the responsibility of the state of origin, the legal scholar Robert Yewdall Jennings proposed that if a doctrinal ground were to be found that established the responsibility of the state of origin for conduct occasioning refugee movement, it would be found in the generally accepted doctrine of the abuse of rights.Footnote 54 He asserted that by extension, “[d]omestic rights must be subject to the principle sic utere tuo ut alienum non laedas. And for a state to employ these rights with the avowed purpose of saddling other states with unwanted sections of its population is as clear an abuse of right as can be imagined.”Footnote 55 Though it received practically no attention at the time, from the 1980s onwards, Jennings’ proposition was somewhat reanimated. The notion that there was an international obligation to refrain from “injuring” another state through the displacement of a state's own subjects gained a number of proponents and became a central feature in a number of scholarly publications, though it must be said that Jennings first raised the issue very much as a theoretical notion, rather than a clearly defined argument.
While the sic utere tuo maxim captures, at least in part, some of the more tortious aspects of the regime Jennings imagined; namely, that intent is superfluous to injurious conduct, and that the violation of an established right will in general per se constitute an injury for which damages are recoverable,Footnote 56 there remains the very obvious invalidity of the legal characterisation of persons as the property of the state, capable of being utilised to injure another state.
The theory posited that international responsibility attached to a state of origin through its creation of refugee movement; the arrival of refugees in a state of reception being the detrimental effect of the wrongful conduct. It was argued that the application of the maxim to refugee law might admit an obligation of states not to “injure” other states by creating or exacerbating the conditions that drive refugee movement, and might therefore act as a deterrent to states engaging in activities likely to displace its own subjects.Footnote 57
Coles and Hofmann both argued that there was a growing body of jurisprudence to support the notion that in international law, there had developed a “general rule limiting the sovereignty of states in as far as they may not allow activities on their territory which will cause damage on the territory of other states.”Footnote 58 Extending that premise, Ahmad, Akhavan, and Bergsmo claimed that a receiving state may “resort to objective liability in the sense that a state of origin, whatever its human rights record, is duty-bound to repair the damage caused to other states by the massive influx of its nationals into the territory of other states”Footnote 59 [Emphasis added]. The basis for this “duty” to repair the damage caused by the arrival of refugees appears to be based only on the moral indignation caused by the treatment of human beings, but recalibrated as an injury upon the state, rather than an injury upon the person.
Much like the argument of its contemporaries, this position was bolstered by a fundamental misinterpretation of the legal (in)significance of the sic utere tuo maxim. It was presumed that the maxim provided the legal rule that could establish refugee movement as transboundary harm. No regard was had for the substantive rule that it described, nor were the material aspects of the rule critically examined. Instead, the conception of refugee movement as transboundary harm was considered only insofar as it caused great discomfort to compare human beings with environmental pollution. One notable exception to this was Goodwin-Gill, who, in his 1983 monograph, addressed the uncomfortable association between refugees and transboundary harm, but proposed a novel construction to resolve it. Although it was an unpleasant comparison, “the basic issue […] is the responsibility which derives from the fact of control over territory”, so that the injury then arises from the wrongful use of a state's sovereign territory that results in the international displacement of its subjects.Footnote 60 In that sense, Goodwin-Gill attempted to grapple with the question of the wrongful use of sovereign territory, admitting that the “use” of human beings was not a sufficient basis to establish transboundary harm. It should be noted though that in later editions of the monograph, references to transboundary harm are significantly revised and this proposition is removed.
In a similar vein, Lee and Ahmad proposed that the “creation” of refugees by a state of origin may be regarded as a violation of the receiving state's sovereignty;Footnote 61 an injury for which compensation may be due for “the costs of caring for refugees it generated not only directly, but also indirectly; for example, through actual or threatened military intervention in the internal affairs of a state resulting in the flight of the latter's citizens for fear of persecution.”Footnote 62 In that sense, the purported injury caused to the state of reception is not the movement of refugees per se, but specifically the financial burden imposed on the state by virtue of the maintenance of non-nationals; a responsibility that properly belongs to the state of origin.
Though it did not become greatly popularised as a theory, neither was it made the subject of any serious critical examination (perhaps for its lack of popularity), but as often happens with unexamined theories, it has persisted in the form of various other incarnations and proposed applications, this time, in relation to the international responsibility of China for the global effects of COVID-19. As with its refugee law precedent, the proposal that COVID-19 may be classified as transboundary harm disregards the subject matter of transboundary harm and the inherent danger it poses to the treatment of the human being in international law.
Putting aside for a moment the obviously problematic comparison (both ethical and legal) between noxious fumes or contaminated water, and human beings, there remain a number of legal questions that are entirely overlooked in the classification of essentially non-environmental events as transboundary harm. First and foremost, there is no legal precedent for the classification of an act or omission as transboundary harm where the object used injuriously by the respondent state was not legal property or sovereign territory, be it a paper mill, a smelter, a piece of land, a stretch of sea, or a weapon. Second, there is no legal precedent for the classification of an act or omission as transboundary harm where the transmission of harm occurred through a medium other than the natural environment, be it the air, the sea, a river, or soil. Third, and perhaps most importantly, there is no legal precedent for the classification of an act or omission as transboundary harm where the harm was transmitted through human beings. This is a particularly pertinent issue in relation to both refuge movement and international contagion, as both constructions consider that an international injury may occur through the movement of persons. By extension, and considering the inalienable requirement that transboundary harm must result from the wrongful use of property or territory, both propositions are based on the utterly erroneous classification of a state's subjects as its property; a conclusion that admittedly is not reached deliberately by its proponents, but rather through a reliance on the sic utere tuo maxim, and a failure to consider the substantive requirements of transboundary harm.
These arguments are examples of what Merrill described in relation to the application of the sic utere tuo maxim:
[T]he sic utere formula evidently has considerable utility for international law publicists, because it suggests a norm of strict liability without expressly saying so. Indeed, this approach seems to capture the dominant strategy of the international environmental law community: pushing for de facto endorsements of the principle of strict liability for transboundary pollution under a cloak of ambiguity, in the hope of building a consensus for staunch environmental obligations while minimizing the risk that states will rebel against the implications of those obligations.Footnote 63
It should be clear that states will indeed rebel against the intended effects of these principles—that the notion that transboundary harm in respect of refugees would be used for anything other than the persecution of poor nations for the “injury” of hosting refugees, or that transboundary harm in respect of viruses will result in anything other than the treatment of human beings as potentially hazardous by a state of reception. Benevolent though the intentions of its proponents may have been, the fact remains that the unethical conduct of a state of origin, causing refugee movement did not culminate in transboundary harm. That proposal suffered from the same deficiencies as its contemporary counterpart, in that it failed entirely to consider the subject matter of transboundary harm, and instead relied on the purported legal quality of the sic utere tuo maxim.
IV. Conclusion
Though undoubtedly motivated by a desire to ameliorate the global suffering caused by the COVID-19 pandemic, some scholars and commentators may in fact be setting the stage for the development of legal precedents that will cause a far greater harm that the one they are attempting to remedy. Although the spread of the virus has caused untold human suffering and loss of life, and continues to do so, the more immediate ethical imperative is that human beings are not perceived legally as akin to pollution, and that the international movement of human beings is not considered to be capable of inflicting an international legal injury on a state of reception.
In relation to the deeply misguided invocation in respect of international refugee law, this appears to have begun with the assumption that it was in fact self-evident that a state should be internationally responsible for the creation of forced displacement. From that point of origin, scholars proceeded to locate an applicable mechanism that would support the claim of international responsibility, however ill-suited or unadaptable it was—working backwards to make the problem fit the solution. It appears that the same has occurred in relation to the purportedly internationally wrongful conduct of China in respect of COVID-19. The allegedly unethical nature of the state's conduct is taken as the point of origin from which a rule must then be located to address it, and to render it unlawful. Though there may indeed be a reliable mechanism for the international responsibility of states for actions or omissions occasioning harm in the context of a pandemic, it is not found in the law of transboundary harm.
Additionally, there is a temptation to cast the interests of states as self-evidently the rights of states. As Ellis writes in relation to transboundary harm, “when industrial activities cause pollution that harms the health of populations and ecosystems, a solution cast in terms of state territorial integrity seems frustratingly beside the point.”Footnote 64
This is perhaps further exacerbated by the fact that it is individual human beings that have suffered the greatest losses during the pandemic. The sense of urgency to find a legal remedy is of course a natural impulse of many advocates. But frustrating though it may be to discuss matters of strict legal definitions, and the interpretation and application of legal maxims, this must surely not become a justification for the promotion of a legal concept that is neither sound in its foundation, nor viable in its practical application.
The argument has been made that the universality and gravity of the pandemic is such that it should merit, at the least, a serious consideration of a broader interpretation of transboundary harm, permitting its application to scenarios involving human movement. Paparinskis argues (with reference to the question of a convention on responsibility of States for internationally wrongful acts) that states may do well to reflect on whether to become more assertive as lawmakers and adjust the law of responsibility to the (post-) Pandemic world.Footnote 65 The temptation to derogate from the ordinary application of rules and principles is undoubtedly present in times of crisis, but a clear and present risk associated with that temptation is the belief that it serves a benevolent and/or just purpose, and to permit that conviction to stretch a rule or principle beyond its means. History is full of moments where a cause perceived as benevolent or self-evidently just spurred people to apply principles along ideological lines. History is also full of moments where this temptation was resisted. Though some might disagree in this context, I am not of the opinion that one can simply expand a legal definition beyond its means, without precedent, because to do so would result in what many would consider a desirable outcome.
On a separate note, it seems pertinent in this context to acknowledge that there appears to be an implicit consensus, particularly pervasive in public international law, that an academic theory that is expressed on the periphery of common legal scholarship should be regarded as irrelevant and not meritorious of a response, or that to respond to it would not only lend it legitimacy, but would also degrade one's own work. This is potentially a very dangerous notion, as unpopular theories have a tendency to resurface in slightly different iterations, as may be seen in relation to the revival of the theory that human movement may constitute transboundary harm. It is perhaps an example of this notion that the proposal in respect of COVID-19 continues to receive little academic engagement beyond an enthusiastic concurrence that China does indeed bear international responsibility for causing transboundary harm. This article is intended to provide both a robust rebuttal to that presumption, and to pre-emptively rebut future attempts to classify events associated with human movement as capable of constituting an international injury.
Acknowledgements
The author is grateful to the reviewers for their feedback.
Funding statement
None.
Competing interests
The author declares none
Sophie Capicchiano Young is a lawyer and consultant, currently based in Central America. Sophie is a PhD candidate at School of Advanced Study, University of London.
