“CHINA’S STATE RESPONSIBILITY FOR

COVID 19 GLOBAL SPREAD”

This Synopsis is submitted in the partial fulfillment of Public International Law for
completion of B.B.A., LL.B. (Hons.) Course.

Submitted by:
Aridaman Raghuvanshi
Roll No-2013
5th Semester
B.B.A., LL.B (Hons.)

Submitted to:
Mrs. Sugandha Sinha
Faculty of Public International Law.

(October, 2020)

Chanakya National Law University,

Mithapur Patna, 80001.
 DECLARATION

I hereby declare that the work reported in the B.B.A., LL.B. (Hons.) Project Report entitled

“CHINA’S STATE RESPONSIBILITY FOR COVID 19 GLOBAL SPREAD” submitted at

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my work

carried under the supervision of Mrs. Sugandha Sinha. I have not submitted this work elsewhere for

any other degree or diploma. I am fully responsible for the contents of my project report.

(Signature of the Candidate)

Aridaman Raghuvanshi

Roll No. - 2013

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

 ACKNOWLEDGEMNT

I would like to thank my faculty Mrs. Sugandha Sinha, whose assignment of such a relevant topic
made me work towards knowing the subject with a greater interest and enthusiasm and moreover she
guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
sources of research materials throughout the project and without whom I couldn’t have completed it
in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped me out
at every stage of my project.

THANK YOU!

NAME- Aridaman Raghuvanshi

ROLL NO- 2013

5th Semester (B.B.A., LL.B.)

 TABLE OF CONTENT

DECLARATION ............................................................................................................................ 2
ACKNOWLEDGEMNT ................................................................................................................. 3
1. INTRODUCTION ...................................................................................................................... 5
1. I. Research Methodology ......................................................................................................... 6
1. II. Hypothesis .......................................................................................................................... 6
2. GUIDING PRINCIPLES OF INTERNATIONAL LAW ............................................................. 7
2. I. The “no harm” principle ....................................................................................................... 7
2. II. Obligations erga omnes ....................................................................................................... 8
2. III. ILC’s Draft Articles on State Responsibility ...................................................................... 9
3. OBLIGATIONS UNDER WHO CONSTITUTION AND REGULATIONS ............................. 12
4. THE PRINCIPLE OF ‘STATE RESPONSIBILITY’: PRACTICAL EXAMPLES .................... 14
4. I. The case of Kivalina: on the difficulty of establishing a causal link .................................... 14
4. II. Deepwater Horizon oil spill case: the absence of an international legal response to a tragedy
that can be traced to a specific country ...................................................................................... 15
5. CONCLUSION ......................................................................................................................... 17
6. BIBLIOGRAPHY ..................................................................................................................... 18
Websites:- ................................................................................................................................. 18
Books:- ..................................................................................................................................... 18
 1. INTRODUCTION

International law is somewhat distinct from domestic law in that it respects state sovereignty
and considers it to be a cornerstone of international cooperation. But what happens when the
act or omission of one nation adversely affects another sovereign state in the areas of, for
example, the climate or human rights? This topic is important in exploring the Chinese State's
responsibility for the rapid spread of SARS-CoV-2 virus across more than 190 countries that
have triggered COVID-19 disease. 1

It is usually true that the application of a legitimate legal response differs in theory and
practise. Theoretically, there are many concepts of international law articulated in written law
(in the manner of treaties and conventions) as well as opinio juris 2, such as the judgments of
the International Court of Justice (ICJ), which make it a matter for States to practise good
neighbourliness.” 3

In order to ascertain the legal responsibility of a State for acts that do not constitute good
neighbourliness, the following questions need to be examined:

1. What are the accepted legal obligations of a State under international law, particularly
under customary law?
2. Have these obligations been practiced by States enough that the set of rules have
become jus cogens?4

In the light of these two enquiries, this brief will examine individual cases to see if the
procedure echoes the principle of 'State Accountability.' This study assumes that, as is widely
agreed and confirmed by WHO evidence, the SARS-CoV-2 virus did indeed originate in
China.

Indeed, China's obligation can be determined against the terms of particular treaties and
standards, such as the 2005 WHO International Health Regulations.5 However, this brief

1
“WHO COVID-19 Dashboard”, World Health Organization, accessed October 20, 2020
2
Under international law, Opinio Juris is a subjective obligation of a State that it is bound to the law in question i.e. that
the applicable custom is accepted as law. Opinio Juris coupled with State Practice form the body of customary
international law.
3
Article 74 of the United Nations Charter.
4
Jus cogens is compelling/binding law from which no derogation (or partial suppression) is possible – such as sovereignty
and State immunity.
5
International Health Regulations, 2005, 3 rd edition.
focuses on the basic principles of international law on State Accountability, which are
primarily derived from environmental and human rights legislation.

1. I. Research Methodology
The researcher will use doctrinal type of research in which she will go through all the relevant text
available to her offline as well as online.
1. II. Hypothesis
The hypothesis that the present practice echoes theory on the principle of ‘state responsibility’ taken
for this research stands disapproved.
 2. GUIDING PRINCIPLES OF INTERNATIONAL LAW

The following paragraphs outline some concepts of international law that can be applicable to the
case of COVID-19 and the duty of China.

2. I. The “no harm” principle

The principle of 'no harm' prohibits a State from engaged in activities within its jurisdiction
from causing significant cross-border damage.6 This is at the core of international
environmental law. This concept is commonly applicable in the resolution of transboundary
environmental pollution, as it provides a clear connexion between environmental degradation
and human rights violation on health and life. The advisory opinion of the ICJ on the legality
of the nuclear weapons threat case may perhaps better reflect the application of that theory.
In its decision, the ICJ noted that:

"The presence of a general duty on the Member States to ensure that activities within their
jurisdiction and control respect the environment of other States or areas outside national
control is now part of the context of international environmental law." 7

While the principle of 'no harm' has grown a great deal in inter national environmental law
and, more specifically, in water law, where it has placed an obligation on a State to perform
an environmental impact assessment or to consult its neighbouring countries, its direct
application to international human rights law remains suspect.

There are no precedents for validating the application of the concept of non -harm to the case
of the COVID-19 pandemic. In the most famous ICJ cases on international water law, the case
in point was the effect of hydro projects on a downstr eam region, through which the upstream
riparian planned an action that had a direct impact on the co -Riparian state. In the present
pandemic, there is no such environmentally damaging behaviour that may have a direct effect
on the human rights of another country, even if the end result is the same, if not worse.

Other examples of the application of the concept of non-harm are linked to the law on climate
change, where its applicability has been continuously challenged due to its efficacy. In order
to counter these suspicions, the climate change regime was based on the concept of "common
but differentiated obligations." As a result, some Western states have embraced greater moral

6
Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge University
Press, 3rd ed, 2012) 239
7
Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Rep 226, 29
responsibility as rich or "developed" states, but no clear causal responsibility as industrial
states, 8 they are guilty under international law.

The rationale for debating international law on climate change and water law is that these are two of
the oldest structures that can provide answers as to what happens when a State has a detrimental
impact on another. Older precedents clarify the opinion on more recent cases, such as COVID-19.
However, the State is not responsible for the harm done by the environment or by control of water in
other countries. In the case of climate change legislation, transparency is "soft" and is limited to the
process of water law.

2. II. Obligations erga omnes

In international law, the principle of erga omnes obligations applies to the particular
obligations that States have towards the international community as a whole. In general legal
theory, the definition of 'erga omnes' (Latin: 'in relation to all') has roots as far back as Roman
law and is used to denote duties or rights against all. In municipal law, it has an impact on
everybody in a different, general sense.

The definition is very relevant because, in the current structure of the international society,
composed of independent entities which, as a rule, give rise to legal relations on a consensual
basis, erga omnes obligations may further allow the International Court of Justice to go
beyond reciprocal relations between States on the basis of consent to further establish
international law on the basis of natural law. This, by its very existence, affects the freedom
of consent of the State and the sovereignty of the Nations.

Erga omnes obligations are a good place to begin to understand what obligations the State has
towards the global community that are well established by international law. With regard to
the assignment of liability in the case of COVID-19, i.e. the substantial loss of life and well-
being, it is important to understand whether China has breached any obligation to the
international community and what kind of obligation it has sustained. Obligations erga omnes
are the broadest and, at the same time, the narrowest definitions that can help to express this
duty.

In addition to the Vienna Convention, the ICJ has famously mentioned four erga omnes
obligations: the outlawing of acts of aggression; the outlawing of genocide; protection from
slavery; and protection from racial discrimination. 9 In addition to these four principles,

8
Benoit Mayer, “The relevance of no harm principle to climate change law and politics” Asia-Pacific Journal
of Environmental Law (2016) 19, 79-104, 101
9
Case concerning the Barcelona Traction, Light and Power Co Ltd (New Application: 1962) (Belgium v Spain) (Second
Phase), ICJ Reports 1970, 3
international law has seen the emergence of others such as the obligation to respect the
principle of self-determination (as in the Case Concerning East Timor 10), the Advisory
Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian
Territory, 11 and the Erga omnes duty banning the use of torture accepted by the International
Criminal Tribunal for Yugoslavia in the case of Furundzija. 12 Normally, it can not be assumed
that the duty to avoid international damage is an erga omnes duty.

The three fundamental proposals on which the contemporary theory of State Responsibility is
based are as follows: (i) the responsibility of States is 'breach-based,' i.e. caused by
attributable actions in violation of international obligations; (ii) that it is 'objective,' i.e. not
necessarily contingent on harm or fault; and (iii) that it gives rise to the consequential duties
of termination and reparation (plus, In the case of COVID-19, certain elements are missing.
It can be safely said that China has not violated any responsibility of erga omnes, because the
duty of treatment of other nations in times of pandemics is not part of this body of
international law.

2. III. ILC’s Draft Articles on State Responsibility

On 12 December 2001, the General Assembly of the United Nations approved the conclusion
of the work of the International Law Commission ('ILC') on the responsibility of States for
international wrongdoing and the adoption of articles and comments on the subject. While
well received and frequently cited by the ICJ, the draught articles of the ILC alone are not
sufficient to evoke the duty of any State. However, even if the draught articles are used as a
justification for considering China's liability in the present case, it can be said that it would
be extremely difficult to legally hold China liable. According to the Draft Articles, any
international wrongdoing by a State involves the international liability of that State (Article
1).

Article 2 states that an act of foreign injustice must:

• to be attributable to the State under international law;

• constitute a violation of the international duty of the State;

'Attributability' means that it has been proven beyond reasonable doubt that the a ct / omission
of the State caused the wrongful case. In the context of climate change policy, for example,

10
Case Concerning East Timor (Portugal v. Australia), International Court of Justice (ICJ).
11
Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
International Court of Justice (ICJ), 9 July 2004.
12
Ardit Memeti and Bekim Nuhija, “The Concept of Erga Omnes Obligations in International Law” New Balkan Politics
(2013)
the issue of causation has been a long-standing one: in existing case law, States cannot be
held accountable for pollution because it is difficult to create a clear causal relation between
climate change-related events and pollution by a specific State. International cooperation on
climate change adaptation – consisting primarily of support programmes focused on some
environmental problems – is in direct contrast to the remedial responsibilities of the State
responsible for international wrongdoing. 13 The goal of climate change mitigation by
'quantified emission limitation and reduction commitments' varies in terms of language and
content from the goal of climate change mitigation. 14

Even if the ILC succeeded in codifying the Papers on State Accountability, the provision of
attribution and causation, rather than relying on the State 's obligation to collaborate, would
not overcome the question of addressing the human costs of the dissemination of COVID-19.
The lack of a detailed understanding of what state responsibilities should be, will lead to a
debate on erga omnes and will limit international law to deliberate and violent rather than
insidious infringements, such as the current pandemic.

The ILC also has draught papers on the avoidance of transboundary damage from dangerous
practices. 15 This takes the study to the issue whether the regulation applies to damage caused
or to particular activities that would cause harm. The response has different implications,
especially in the case of China's obligation. If the harm itself is forbidden fro m any cause or
operation, the essence of the operation is meaningless. If, on the other hand, State liabilit y
depends on whether a particular practise is authorised or banned, so the issue of how to
comply with practises that are not banned under international law must be answered.
Assuming that the virus originated from bats or pangolins 16, is trade in animals a dangerous
practise under international law? If this is not the case, the ILC Papers on Transboundary
Damage will not apply prima facie.

If the rule of no-harm is not as to whether or not the related action as such is unconstitutional, but
whether or not the home State has done everything in its power to prevent causing cross-border harm,
then the path taken by the ILC appears inherently wrong and, to some degree, needless. 17 What is
more, it is watering down the concept of non-harm, which can instead be improved. In the words of

13
Mayer, “Relevance”, 90.
14
Mayer, “Relevance”, 91.
15
Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities
16
Lau SKP, Luk HKH, Wong ACP, Li KSM, Zhu L, He Z, et al., “Possible bat origin of severe acute respiratory syndrome
coronavirus 2”, Emerg Infect Dis. 2020 July.
17
Christina Voigt, “State Responsibility for Climate Change Damages”, Nordic Journal of International Law 77 1-22
(2008), 9-10.
Rosalyn Higgins,18 former President of the ICJ, "If what is needed for anything to come under the
rule of State liability is a globally unlawful act, then what is wrong globally is to cause the harm to
occur."

It is also necessary for the international community to consider the various dimensions of the
standards available so that legal mechanisms can be improved. This can be achieved by (i) advancing
the law of non-harm by concentrating on harm rather than activity; and (ii) articulating and advancing
the duties of erga omnes to incorporate the concept of no-harm principle.

18
Rosalyn Higgins, ‘Problems and Process: International Law and How We Use It’, (Oxford: Clarendon Press, Oxford,)
1994,165.
 3. OBLIGATIONS UNDER WHO CONSTITUTION AND REGULATIONS

First, each State has a duty to notify the WHO of the irregularities that have occurred in its
human health-related territories. This obligation is embodied in Article 7 19 of the Rules, the
writing of which, in the best style of hard law, is direct and obligatory, in the following terms:

"If a State Party has proof of an unexpected or irregular public health incident within its
jurisdiction, irrespective of origin or source, which may constitute a public health emergency
of international significance, it shall supply all appropriate public health information to the
WHO. In such a case, the terms of Article 6 20 shall be applied in full.

Article 6 allows for a maximum of 24 hours for the contact to be made. The question is,
therefore, whether China failed to alert the WHO by the most effective means of
communication available and within 24 hours of evaluating public health information on all
incidents in its territory that could constitute a public health emergency of international
significance.

Press reports claim that it took China more days than planned to reveal the details.
Consequently, the failure of the Chinese Government to act will be in violation of its foreign
duty under the WHO Regulations.

However, it is only the WHO Constitution – not the International Health Legislation – that
allows for access to the International Court of Justice. Article 75 of the WHO Constitution
states:

"Any issue or disagreement concerning the interpretation or implementation of this

Constitution, which is not resolved by arbitration or by the Health Assembly, shall be referred
to the International Court of Justice in compliance with the Law of the Court of Justice, unless
the parties concerned agree otherwise."

The International Court of Justice (ICJ) has already acknowledged the relevance of Article 75
of the WHO Constitution on Armed Activities in the Congo Territory. The ICJ repor ted in
paragraph 99 as follows:

"The Court observes that the DRC has been a party to the WHO Constitution since 24 February
1961 and that Rwanda has been a party since 7 November 1962 and therefore all are members

19
WHO International Health Regulations, 2005.
20
WHO International Health Regulations, 2005.
of the WHO. The Court also states that Article 75 of the WHO Constitution provides for the
jurisdiction of the Court, under the conditions laid down therein, over 'any issue or conflict
concerning the interpretation or application' of that instrument.'

This clause demands that the interpretation or operation of the WHO Constitution should be
concerned with such a question or divergence. However, the main challenge lies in locating,
in the text of the WHO Constitution itself, objective responsibilities for States to protect
health in cases of transnational pandemics, such as those found in the International Health
Regulations. All of this leads to confusion as to whether a state will sue Chi na for a Covid-
19 pandemic at the International Court of Justice.

There are some other ways of relating Chinese accountability to the WHO Constitution.
Second, Article 21 specifically provides for the authority of the Health Assembly to enact
legislation on sanitary and quarantine measures and other procedures intended to prevent the
spread of diseases abroad.

In addition, the duty to comply with the rules of the World Health Assembly also obliges
Nations, according to Article 62 of the WHO Constitution, to "report annually on the measures
taken with regard to the recommendations made to it by the Organization and with regard to
conventions, agreements and regulations." Indeed, it would be meaningless for the standard
to mandate Member States to send annual reports if it were not to practise its position as an
international body to track global health issues.
 4. THE PRINCIPLE OF ‘STATE RESPONSIBILITY’: PRACTICAL
EXAMPLES

State responsibility is of two kinds: the responsibility of a State to its own citizens, and the
responsibility of a State to extraterritorial citizens, where the decisions of one State have an effect on
citizens of other countries. This brief focuses on the latter and will therefore not discuss the case of
Urgenda, a leading human rights and climate change case21.

4. I. The case of Kivalina: on the difficulty of establishing a causal link

In Kivalina v ExxonMobil Corp22, a native Alaskan village filed a suit seeking monetary
damages from a number of oil, coal and power companies. They claimed that, because of the
pollution from these companies, the people of Kivalina would have to relocate as their lives
and livelihoods were threatened by the activities of these companies. The Court denied the
appeal on jurisdictional grounds, but also ruled that Kivalina could not claim that the
corporations had caused them injury because the causal relation between the injury and the
act could not be identified. Interestingly, the corporations also claimed that Kivalina failed to
make a point that is identifiable under international law. 23 The Court went on to affirm the
impossibility of deciding which "emissions," that is, "emitted by whom and at what time in
the last few centuries and at what location in the world" caused "global warming related
injuries."

It is commonly believed that the responsibilities of respect, security and fulfilment of human
rights are of territorial application. This is supposedly inconsistent with t he extraterritorial
scope of climate policies, especially with regard to mitigation measures which inevitably h ave
a transboundary effect. 24 An empirical analysis of human rights law on climate change and
the right to health does not explain how responsibility for GHG emissions can be assigned to
specific States. Theoretically, the same could be applied. This issue will be compounded when
it is decided if a piece of evidence will be recognised by the International Court / Tribunal as
complying with the standard of evidence needed to create the cause. There are questions that

21
Urgenda v Netherlands is a landmark case from 2019 where the Dutch Supreme Court held that the Dutch government
has an obligation to significantly reduce their emissions in line with their human rights obligations.
22
Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 854 (United States, 9th Cir. 2012)
23
Kivalina Lawsuit (re Global Warming)
24
Ottavio Quirico, “Climate Change and State Responsibility for Human Rights Violations: Causation and Imputation”,
Netherlands International Law Review 65 (2018), 185–215
international law does not have answers to, as seen by past experience in international climate
change law.

4. II. Deepwater Horizon oil spill case: the absence of an international legal response to a
tragedy that can be traced to a specific country
BP Oil Spill in the Gulf of Mexico in 2010 25 remains one of the largest oil spills in human
history. While it is sometimes referred to as a "environmental tragedy," the impacts of the
spill on human health, life, property and livelihoods have been seen for a decade since the
incident. Reparation for damages was rendered within the United States on the basis of a
variety of specific clean air and water acts, as well as tort and criminal law. The case saw no
international response, even though hundreds of people in Mexico, Cuba, Panama and several
other countries were affected by the spill.

This presents another issue in the allocation o f state liability to other nations. If a company is
responsible for an act or omission that has adverse extraterritorial consequences, what legal
framework can be applied? Major oil companies are spreading transnational behemoths, which
are governed piecemeal by law under the control of several states and countries. There are no
frameworks for resolving them comprehensively at the international level, and corporate law
restricts the responsibility of the parties to each other. These systemic issues are exac erbated
by the crucial role of oil in the domestic and international economy and national sovereignty
over natural resources. 26 The same applies to trade in wildlife. It seems that the burden of oil
spills outside the US was borne exclusively by the victims of the spill and by the Gulf of
Mexico itself.

Where private parties perform activities that cause environmental damage, the problem
remains a duty of control of the State – can this be translated into an international obligation?
In this regard, the principle of due diligence – or quality of care – must be evoked as a
benchmark for determining the behaviour that is required, something currently undeveloped
under international law. The question is, if China does not allow a thorough investigation to
decide if the transmission of the virus was an act or an omission by China, will the non -
cooperation be legally viewed as a violation of the obligation? Realistically, China can easily
disallow an inquiry using sovereignty as an excuse, a far more defined concep t, if not the
foundation of international law. This will completely dissolve the ideals of non -harm, due
diligence and good neighbourliness.

United States Environment Protection Agency, “Deepwater Horizon BP Gulf of Mexico Oil Spill.
25

26
Hari Osofsky, Kate Baxter-Kauf et al, “Environmental Justice and the BP Deepwater Horizon Oil Spill” New York
University Environmental Law Journal 20 (2012) 99, 104
The international legal framework is focused on sovereign and equitable States entering into
agreements with each other, whether by treaties or under customary international law.
National states are the primary subjects and objects of international law, whereas companies,
despite their transnational scope, have restricted international legal personality. 27 This
exacerbates the issue of the allocation of state liability. There is also no empiric evidence that
State liability for damages has been viewed by States as a constructive motivation to
discourage damages from arising in the first place. One example is the Chernobyl accident,
which caused substantial damage to a number of northern European countries, none of which
tried to seek compensation from the Soviet Union. The reasons for this reluctance were partly
based on political caution, but also on legal uncertainty28.

27
Osofsky et al, “Environmental Justice”, 108.
28
Voigt, “State Responsibility”, 3.
 5. CONCLUSION

In the conformity of the above research done by the researcher, it can be concluded that the

present legal system of International law is not capable of dealing with the China’s omission

regarding the COVID-19 disease. This is due to (i) the inability of International law to keep

pace with the exponential growth in the interdependence of nations, and (ii) inadequate

development of the principle of state responsibility, (iii) international law does not considers

preventing such harm as an obligation erga omnes, (iv) the questionable effectiveness of “no-

harm” principle’s direct applicability to international human rights law.

These all lacuna in International law calls for a stronger legislation and a more inclusive and

binding system of international rule of law, in order to prevent such omission on part of one

state from effecting other states, which can be seen in the present scenario.
 6. BIBLIOGRAPHY

Websites:-
i. https://www.jurist.org/commentary/2020/05/abhishek-kumar-china-covid19-
responsibility/
ii. https://moderndiplomacy.eu/2020/04/13/liability-of-china-for-covid19-outbreak-
state-responsibility-and-jurisdictional-challenges/
iii. https://legal.un.org.
iv. https://casebook.icrc.org/case-study/international-law-commission-articles-state-
responsibility
v. https://pagecentertraining.psu.edu/public-relations-ethics/ethics-in-crisis-
management/lesson-1-prominent-ethical-issues-in-crisis-situations/case-study-tbd/

Books:-
i. State Responsibility: The General Part by James Crawford
ii. International Law by Malcolm Shaw
iii. The Oxford Handbook of the History of International Law