Thread by @hhesterm

Allow me to add a public international law take on this. Because it is international law that will count here. (Thread)

https://twitter.com/davidallengreen/status/1394570079422005254

International law knows a number of ways to justify breaches of provisions. The first place to look for such justification is in the text of the treaty itself. Are there exceptions? /2

Of course here it’s even more complex - if the breach at issue is a possible breach of the UCC, well, then you’ll also have to look there. /3

Done with that, did not find what you were looking for? So on to general international law. There are two places that might be of interest for you: the Vienna Convention on the Law of Treaties and the law of state responsibility /4

Now you also have to ask yourself whether the treaty you are interpreting wanted to exclude the general justifications or not. Let’s assume it didn’t. So, what do we have? /5

The VCLT covers reasons such as a fundamental change of circumstances. Force majeure exists explicitly in the articles on state responsibility. So let’s turn to these, because I’ll have to turn to Art. XIII GATT soon. /6

Here’s force majeure. Arguably problematic, because it must make compliance materially impossible. BUT /7

The articles on state responsibility also know “distress” and “necessity”. These are more realistic - they would relate to the pandemic. The argument would be we could not build up all of the border controls because of the pandemic. Now... /8

that does not mean it’s a slam dunk. In particular because the argument that the pandemic might imply that more time is needed was dismissed before. It’ll be interesting to see how this argument plays out. /9

Here’s the texts of distress and necessity