There is still scientific uncertainty about several
aspects of the Severe Acute Respiratory Syndrome
Coronavirus 2 (SARS-CoV-2). However, it is
uncontroversial that the original epidemic quickly
turned into pandemic, that the World Health
Organization declared in March 2020, due to the virus
capacity of easy and fast transmission from person to
person.
This article stems from a wider research to determine,
in the light of public international law, the possibility
to hold States accountable for the various issues
related to the pandemic. In particular the post
analyses whether international law provides any
mechanism to hold China accountable, if proven that
it has not taken the necessary precautions to prevent
the spread of the new Coronavirus.
The analysis is focused on investigating how China
might have violated the 2005 WHO International
Health Regulations, and the WHO Constitution itself,
the latter being the instrument that opens the door to
the jurisdiction of the International Court of Justice.
Obligations under WHO Constitution and Regulations
First, every State has the obligation to inform the
WHO of anomalous situations that have occurred in
their territories related to human health. This duty is
expressed in Article 7th of Regulations, whose writing
– in the best style hard law – it is direct and
imperative, in the following terms:
“If a State Party has evidence of an unexpected or
unusual public health event within its territory,
irrespective of origin or source, which may constitute
a public health emergency of international concern, it
shall provide to WHO all relevant public health
information. In such a case, the provisions of Article 6
shall apply in full”.
The referred Article 6 gives a period of 24 hours for
this communication to be carried out. So the question
is whether China has omitted to warn the WHO by the
most efficient means of communication available and
within 24 hours of the assessment of public health
information about all events in its territory that could
constitute a public health emergency of international
importance.
Press reports say it took China more days than
expected to disclose the information. The Chinese
government’s omissive conduct, therefore, would be
in violation of its international obligation arising from
the WHO Regulations..
However, only the WHO Constitution – not the
International Health Regulations – provides for
recourse to the International Court of Justice. In fact,
Article 75 of the WHO Constitution states:
“Any question or dispute concerning the
interpretation or application of this Constitution
which is not settled by negotiation or by the Health
Assembly shall be referred to the International Court
of Justice in conformity with the Statute of the Court,
unless the parties concerned agree on another mode
of settlement”.
The International Court of Justice (ICJ) has already
recognized the validity of Article 75 of the WHO
Constitution in Armed Activities on the Territory of
the Congo. In paragraph 99, the ICJ stated as follows:
“The Court observes that the DRC has been a party to
the WHO Constitution since 24 February 1961 and
Rwanda since 7 November 1962 and that both are
thus members of that Organization. The Court further
notes that Article 75 of the WHO Constitution
provides for the Court’s jurisdiction, under the
conditions laid down therein, over ‘any question or
dispute concerning the interpretation or application’
of that instrument”.
This provision requires that such an issue or
divergence concerns the interpretation or application
of the WHO Constitution. However, the whole
difficulty lies in finding in the text of the WHO
Constitution itself objective obligations to States to
safeguard health in cases of transnational pandemics,
such as those contained in the International Health
Regulations. All of this leads to uncertainties about
whether a state can sue China in the International
Court of Justice for the Covid-19 pandemic.
There are several other ways to link Chinese
responsibility to the WHO Constitution. First, article 21
expressly gives the Health Assembly authority to
adopt regulations sanitary and quarantine measures
and other procedures designed to prevent the
international spread of diseases.
In addition, the obligation to comply with the
regulations of the World Health Assembly also entails
States, under the terms of Article 62 of the WHO
Constitution, the duty to “report annually on the
action taken with respect to recommendations made
to it by the Organization and with respect to
conventions, agreements and regulations”. In fact, it
would be pointless for the standard to require States
to submit annual reports if it were not to exercise its
role as an international body for monitoring global
health issues.
Force Majeure
Finally, authors suggested the hypothesis of China’s
use of the “force majeure” institute as an exclusion of
illegality. Force majeure is mentioned in the Draft
Articles on State Responsibility in the following terms
(Article 23, § 1):
“The wrongfulness of an act of a State not in
conformity with an international obligation of that
State is precluded if the act is due to force majeure,
that is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances
to perform the obligation”.
However, there will be no exclusion of State liability if
(a) the irresistible or unforeseen situation is due,
alone or in combination with other factors, to the
conduct of the State invoking it, or (b) if the State has
assumed the risk of the situation occurring (Article 23,
§ 2).
Could the force majeure be claimed by China, or other
States involved in the pandemic, as excluding
responsibility for the spread of the virus? The whole
analysis, to the evidence, involves establishing
whether or not the virus was under control of the
Chinese State. In fact, although it is understood that
there has been responsibility of China due to the delay
in disclosing information, this would not rule out the
possibility of an exclusion of the wrongfulness of its
acts.
However, it is no less true that China’s lack of
information regarding the epidemic (in violation of
the respective international standard) could affect the
rule in Article 23, § 2, b, of the Draft Articles on State
Responsibility, which prevents the exclusion of force
majeure “if the State has assumed the risk of the
occurrence of the situation”. As a result of this rule,
when the State accepts the risk of the occurrence of
the harmful situation, due to its previous conduct or
unilateral act, it cannot benefit from the force
majeure in order to exclude the illegality of the act. If
it is true that the rule under consideration is
expressed in a draft international convention, and,
therefore, it would not yet be capable of generating
any obligation, they reflect and codify international
customs already established and recognized
concerning the issue under analysis.
The whole issue will come down to proving whether
China actually “took the risk of the situation
occurring” generated by the COVID-19 pandemic, as
well as whether the issue at hand was (really)
unpredictable, despite the lack of initial due diligence,
which lead to the spread of the virus. Should
countries that have a history of outbreaks or
epidemics have better conditions to predict and
handle new ones?
Conclusion
If it is true that China did not directly cause the
pandemic, born out of a natural event resulting from
the interaction between humans and animals, it is also
certain that the unjustifiable delay in the
dissemination of information was the cause (with
nexus) of a faster spread. These facts are critical when
taking into account the possibility for violating
international norms.
State Liability for Failure to Control the COVID-19
Epidemic: International and Dutch Law
Lucas BERGKAMP*
Author information Copyright and License
information Disclaimer
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I. Introduction
The COVID-19 epidemic has caused governments in
Europe to impose a variety of measures to fight the
spread of the disease. Some governments have
adopted relatively relaxed measures or adopted strict
measures late, while some have been more proactive
and implemented restrictions early on.
This article discusses the potential liability of
governments in relation to neglicence and omissions
with respect to COVID-19 measures. The focus is on
China and The Netherlands. State liability can arise if
governments have been negligent in addressing the
threat of the COVID-19 epidemic, specifically where
they have created risks due to not implementing
restrictions or not doing so in a timely manner, or
otherwise have failed to protect public health and
human lives. These issues are analysed with reference
to international law and the laws of The Netherlands,
which has a well-developed – albeit idiosyncratic –
system of state liability. 1
Of course, it is also possible that governments are
liable for damages caused by measures to fight
COVID-19. For example, regulations requiring the
closure of cafes and restaurants will cause economic
harm to the operators thereof. This kind of potential
liability is not discussed in this article. It should be
noted, however, that governments are likely to offer
compensation for the damages caused by these
measures.
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II. International state liability
In addition to liability under national law, a state could
be liable under international state responsibility. The
International Law Commission has adopted a set of
rules for “responsibility of states for internationally
wrongful acts”. 2 A state commits an “internationally
wrongful act” when its action or omission: (1) is
attributable to the state under international law; and
(2) constitutes a breach of an international obligation
of the state.
Given the all-encompassing character of the state’s
role in combatting epidemics, an omission in this
respect is likely to be attributable to a state. Under
international law, states have a duty to cooperate
with other states and to protect other states against
harmful acts by individuals from within its jurisdiction.
3 Arguably, a reporting obligation for infectious
disease outbreaks 4 can be inferred from the duty of
state cooperation and the World Health
Organization’s (WHO) International Health
Regulations. 5
The question is whether China has met its
international law obligation in relation to the COVID-19
outbreak in Wuhan. It has been argued that China has
“suppressed information about the [corona]virus,
done little to contain it, and allowed it to spread
unchecked in the crucial early days and weeks”. 6
Reportedly, the Chinese authorities waited seven
weeks to institute a lockdown in Wuhan, despite
knowledge of the virus’s spread; by then, some five
million people had already left Wuhan.
China waited until 31 December 2019 before reporting
“a pneumonia of unknown cause detected in Wuhan,
China” to the WHO Country Office. 7 Earlier, the
doctor who blew the whistle on the outbreak in
Wuhan had been silenced by the Chinese authorities.
8 On 15 January 2020, China reported that it had not
found evidence of human-to-human transmission of
the coronavirus. 9 In addition, there is evidence that
the Chinese government, despite the SARS outbreak,
failed to adequately regulate wildlife markets, which
are major sources of viruses, including coronaviruses.
10
Thus, China may well be liable under international law
based on a “wrongful act”. If so, China is required to
“make full reparation for the injury caused by the
internationally wrongful act”. Provisions of Chinese
law cannot justify an internationally a wrongful act.
The term “injury” is defined to include “any damage,
whether material or moral, caused by the
internationally wrongful act of a State”. 11 Economic
damage, lost profits and “any financially assessable
damage”, are covered as well. 12 Hence, China’s scope
of state liability under international law is broad.
Of course, China is not the only state that is exposed
to international state responsibility; other states that
have failed to meet their obligations vis-à-vis other
states may be liable, too. For instance, it has been
reported that Austrian ski resorts ignored COVID-19
outbreaks in order to avoid harm to their economies.
13 Such omissions by municipal or local governments
are likely attributable to the state of Austria, and thus
will entail Austria’s state liability. The Netherlands,
too, may be exposed to international state
responsibility, although, unlike China, it may be able to
invoke as a defence that the WHO also acted very late,
due, in part, to its unwillingness to confront China. 14
Whether any of these states, in fact, will be held liable
under international law is a political decision to be
made by the states that suffered harm.
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III. The Dutch government’s response to the COVID-19
outbreak
The response of the Dutch government to the COVID-
19 pandemic has been slow. On 29 January 2020, a
member of the Parliament’s Second Chamber
requested an urgent debate on the COVID-19
outbreak, but his request was dismissed by the
majority. 15 One day later, on 30 January 2020, the
WHO declared the COVID-19 outbreak a “Public Health
Emergency of International Concern”. 16 This
followed a call by the WHO on 13 January 2020, after
the first COVID-19 patient outside of China had been
confirmed, for active monitoring and preparedness.
On 21 February 2020, the WHO warned that “the
window of opportunity to contain the outbreak is
narrowing and that the international community
needs to act quickly”. To assist countries in preparing,
the WHO published a checklist, which includes
questions such as whether there are enough medical
supplies. 17
In relation to public health, the government of The
Netherlands is assisted by the State Institute for
Public Health and the Environment (“RIVM”), which is
part of the Ministry of Public Health, Well-being and
Sports. 18 In the early days of the COVID-19 epidemic,
the RIVM was effectively speaking on behalf of the
Dutch government. As discussed below, the RIVM’s
communications caused much confusion, and some of
them were incorrect, not supported by science or
inconsistent with the WHO’s recommendations. 19
With things spinning out of control, the Cabinet, led
by Prime Minister Mark Rutte, had to get up to speed
on the issues and took over some of the
communications in relation to the policy measures.
Three problems with the Dutch government’s
response to the COVID-19 outbreak are discussed
below: (1) the objective pursued by the Dutch
government in addressing the COVID-19 epidemic; (2)
the delay in taking adequate response measures
(travel restrictions, restrictions on social interactions);
and (3) the lack of preparedness and transparency in
addressing the outbreak. Before doing so, the next
section briefly discusses the liability of the state for
inadequate policy.
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IV. Dutch state liability rules
There are two ways in which the liability of the Dutch
government can be engaged by citizens of The
Netherlands. First, a non-governmental organization
(NGO) has a right to bring a class action against the
government to force it to adopt more stringent policy
or to seek compensation for damages caused by
inadequate policy. 20 A recent Supreme Court ruling
in a climate policy-related case (Urgenda) has
confirmed that such NGOs have broad standing rights,
and that the right to life laid down in the European
Convention on Human Rights imposes on the
government a positive obligation to protect a wide
range of health and security risks, including climate
change-related risks. 21 The court’s judgement also
eased causation requirements by introducing the
concept of partial responsibility, which is related to
proportional causation.
Second, any victim of an unlawful act committed by
the government may bring an action to seek
compensation for damages. 22 In both cases, the
standard for liability is the same: the state commits an
unlawful act if it, through commission or omission,
infringes on citizens’ rights or disregards its duty
under the law or social norms. To succeed, a victim
must prove that there is a causal link between the
state’s violation and the damage he suffered. 23
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V. Objective pursued
In the early days of the COVID-19 breakout, the Dutch
government’s objective was not the protection of
public health; rather, it was the prevention of public
concern so as to avoid economic disruption. The
RIVM’s communications in January and February 2020
illustrate how the RIVM attempted to lull people into
a false sense of security. 24 Travel restrictions and
other measures to limit social interactions were not
imposed until very late. The overriding objective was
avoiding any economic harm. The RIVM was in the
driver’s seat. 25
Once this objective became politically untenable, the
new objective became creating “herd immunity”. This
objective also proved to produce significant backlash,
as people began to realize that this would result in a
peak of many deaths, particularly among the elderly
and vulnerable. In response, the Prime Minister
attempted to reframe the objective as “controlled
population immunity”. The current objective is
unclear, but appears to be closer to minimization of
COVID-19 deaths and suppression of the outbreak,
although a week into the lockdown the political
pressure to relax the measures is already building up.
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VI. Delay in response measures
As the initial objective was avoiding panic and
economic disruption, in the first phase, the RIVM did
not recommend any measures or restrictions, even
though KLM operated flights to Wuhan. 26 After Italy
declared a state of emergency on 31 January 2020, 27
the RIVM did not discourage Dutch residents from
travelling to Lombardy. Consequently, the first case in
The Netherlands, which was reported on 27 February
2020, 28 involved a patient who had returned from
Lombardy. Nevertheless, the RIVM did not see any
problem with large groups vacationing and skiing in
northern Italy; this made a group of vacationing
students uncomfortable, and they decided on their
own volition to return to The Netherlands early. 29
Only on 13 March were flights from COVID-19 hotspots
cancelled. 30 Likewise, the Mardi Gras carnival
festivities in the south of The Netherlands were not
cancelled, turning Brabant into a hotspot of COVID-19
infections. 31
Limitations on social interactions were also imposed
very late and reluctantly. When Prime Minister Rutte
announced the recommendation to refrain from
handshakes, he shook the hand of the RIVM’s chief
following the announcement. 32 The government did
not take serious measures to fight the epidemic until
16 March 2020, after the Federation of Medical
Specialists raised the red flag 33 ; the next day, the
government decided that schools, childcare centres,
bars, restaurants, sports clubs and brothels were
required to close down. 34 Further measures
including sanctions, under the misnomer of “smart
lockdown”, were adopted as late as 23 March 2020. 35
Even then, much confusion over the measures
remained. 36
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VII. Lack of preparedness and transparency
On 3 February 2020, the RIVM announced that it is
“very well prepared if the virus makes it to The
Netherlands”. 37 As the crisis unfolded, however, it
became clear that the preparations were inadequate
at various levels – there were insufficient testing,
tracing and monitoring capabilities, there were not
enough masks and protective clothing and
equipment, the capacity of hospitals and intensive
care units appeared to be inadequate, 38 there was
no system in place for the distribution of COVID-19
patients across hospitals and there was no system for
population measurement of body temperature. 39
During the entire process of fighting the COVID-19
epidemic, the Dutch government gave the impression
of trying to catch up with developments. The failure
to test the population has been a key issue.
Consistently, the WHO has recommended testing as
the core element of the strategy to fight the
epidemic. 40 The RIVM, however, restricted testing to
only a few small groups; even healthcare
professionals were not consistently tested. The north
of The Netherlands, which had fewer COVID-19 cases,
disagreed with the RIVM’s recommendations and
announced a broad testing programme. 41 It has also
been argued that the RIVM’s data are outdated. 42
Neither the RIVM nor the Dutch government has been
transparent about the data and analysis underlying
their recommendations and policy measures. No
sound risk assessments, no models or scenarios and
no cost–benefit analyses of alternative policy
measures have been published. As discussed above,
the objective of the COVID-19 policy has changed over
time, and it is still unclear. In addition, neither a
strategy nor an action plan was ever clearly
articulated. The websites of the RIVM and the Ministry
of Public Health provide only limited data and analysis;
it is impossible to determine which data, analyses and
assumptions the RIVM and the government have used
to arrive at their forecasts and interventions. Public
participation in the process is impossible. As a result
of this mismatch and the resulting vacuum, in the
initial phase, the RIVM, which has no democratic
legitimacy, determined key policies, including the
policy of preventing public concern and economic
harm. After public outcry drew politicians into this
policy-making process, most of the time, the RIVM
continued to be in the driver’s seat, as the politicians
preferred to hide behind the science.
As of 31 March 2020, there are 12,595 confirmed cases
of COVID-19 in The Netherlands, 4712 patients have
been hospitalized, 1070 have received intensive care
43 and 1039 have died. 44 Due to its tardy and
inadequate response, the state of The Netherlands
ranks in the upper tier in terms of COVID-19 deaths per
million inhabitants. 45
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VIII. Conclusions
The COVID-19 crisis raises questions around the role of
governments in managing the epidemic. This article
briefly reviewed the role of China and The
Netherlands. In each case, negligent omissions and
other careless or unlawful acts are triggers of
potential state liability. In the case of China, its
belated response and initial cover-up of the outbreak
in Wuhan allowed the virus to spread beyond China.
These omissions may well constitute an international
wrong for which China is liable vis-à-vis other states
that suffered damage, including economic damage, as
a result thereof.
The Dutch government’s response to the COVID-19
epidemic has been inadequate in many respects.
Consequently, under Dutch tort law, the state of The
Netherlands may be liable for damage caused by
these omissions. The recent Supreme Court ruling in
the Urgenda climate case provides further support for
these kinds of claims. Causation will likely be a key
issue, but the concepts of partial responsibility and
proportional causation may help here. If the state
must protect its citizens against the remote risks of
climate change in the second half of the century, they
surely must protect them against the immediate risks
of COVID-19 in 2020. 46
In short, the COVID-19 epidemic may not be over
when the infections have abated. States that have
failed in controlling the spread of the virus are likely to
be held accountable and, possibly, liable.
Introduction
In the practice of international law, it is generally
accepted that the principle of State sovereignty[1] is
the most important and is in fact the pillar of
international cooperation. In that way, it is far
different from a country’s domestic law that is binding
on its citizens unequivocally. This fundamental aspect
of international law guides any attempt to understand
“wrongful” acts and their treatment: What happens
when an act or omission of one country adversely
impacts another sovereign state in the areas of, for
instance, the environment or human rights? This
question is pertinent in exploring the responsibility of
the Chinese state in the rapid spread of the SARS-CoV-
2 virus that causes the COVID-19 disease. The
pandemic, which broke out from the Chinese city of
Wuhan in early 2020, has now spread to more than
190 countries as of the time of writing.[2]
To be sure, the determination of a valid legal response
differs in theory and practice. Theoretically, there are
several principles of international law that make it
incumbent upon States to practice “good
neighbourliness.”[3] This is expressed in written law
(in the manner of treaties and conventions), as well as
opinio juris,[a] such as judgments from the
International Court of Justice (ICJ). To ascertain
whether a State can be made legally responsible for
acts that do not constitute good neighbourliness, the
following questions need to be examined: What are
the accepted legal obligations of a State under
international law, particularly under customary law?
Have these obligations been practiced by States
enough that the set of rules have become cogens?[b]
On the basis of these two guiding enquiries, this brief
will analyse specific cases to see whether practice
echoes theory on the principle of ‘state responsibility’.
This analysis makes an assumption that, as is generally
accepted and supported by evidence from WHO, the
SARS-CoV-2 virus did indeed originate in China. The
brief answers the two related questions of whether
China had an obligation under international law; and if
such obligation was breached.
To be sure, other assessments of China’s
responsibility can be done against the provisions of
specific treaties and norms, such as WHO’s 2005
International Health Regulations.[4] This brief focuses
on the general principles of international law on State
Responsibility that are largely derived from
environmental and human rights laws.
Is China Responsible? Guiding Principles of
International Law
The following paragraphs outline certain principles of
international law that can be applied to the case of
COVID-19 and China’s responsibility.
1. The “no harm” principle
The principle of “no harm” constitutes the
cornerstone of international environmental law,
according to which states must ensure that activities
within their jurisdiction do not cause significant cross-
boundary damage.[5] This principle has been applied
widely, for instance, to transboundary environmental
pollution by linking environmental damage to an
infringement of human rights to health and life.
Perhaps the best description of this is seen in a
decision by the ICJ in its advisory opinion in the
Legality of the Threat of Nuclear Weapons case:
“The existence of the general obligation of States to
ensure that activities within their jurisdiction and
control respect the environment of other States or of
areas beyond national control is now part of the
corpus of international law relating to the
environment.”[6]
While States causing environmental harm to other
States can be brought under the purview of
international law via the “no harm” rule, its direct
applicability to international human rights law remains
suspect.[7] Further, the development of the principle
of ‘no harm’ in international environmental law—and
more specifically water law—has been confined to the
duty of a State to conduct an Environmental Impact
Assessment or consultation with their neighbouring
countries. If a State can produce proof of such
procedural “cooperation”, then any resulting harm
becomes irrelevant. Due diligence of States comprises
prior assessments of the impacts of the planned
interventions. In the three biggest cross-border water
cases in recent history[8] where one country was
“harmed” by the acts of another, the rule of due-
diligence was the applicable test rather than the harm
itself. It can be said that in practice, the no-harm
principle appears to have translated into a risk
mitigation approach – a box-checking tendency to
implementing trans-national activities.[9]
There are no precedents to validate the application of
the no-harm principle to the case of the COVID-19
pandemic. In the most famous ICJ cases on
international water law as discussed above, the case
in point was the impacts of hydro projects on a
downstream country, whereby the upstream riparian
planned an activity that had a direct impact on a co-
riparian state. In the ongoing pandemic, there is no
such environmentally harmful activity from which a
direct impact on human rights of another country
could be deduced, even though the end results are
the same, if not worse, indeed.
Other examples of the application of the no-harm
principle relate to climate change law. That countries
continuing to emit large amounts of greenhouse
gases (GHGs) cause harm to others is a well-accepted,
non-legal statement. Has the no-harm principle been
used effectively to attribute responsibility to large
emitters of GHG in order to stop them? Instead of the
no-harm principle, the climate change regime has
been built on the basis of the principle of “common
but differentiated responsibilities”. Accordingly, some
Western states have accepted a greater moral
responsibility as wealthy or “developed” states, but
no specific causal responsibility as industrial states[10]
that are culpable under international law.
The reason for discussing international law related to
climate change and water law is because these are
two of the oldest regimes that can provide answers to
what happens when the acts of a State negatively
impact another. Older precedents give clarity when
deciding on newer cases such as that of COVID-19.
However, neither climate law nor water law holds a
state accountable for damaging acts to other states.
Accountability is “soft” in the case of climate change
law, and is restricted to procedure in water law.
2. Obligations erga omnes
A neglected, if not a forgotten child of international
law is an erga omnes (“towards all”) obligation. When
States have an obligation to protect certain rights that
are of importance to the international community as a
whole, those obligations are erga omnes. While jus
cogens deals with the ‘acceptability’ of a set of norms
in international law, erga omnes obligations
enumerate the norms themselves. Therefore, erga
omnes obligations are not necessarily jus cogens.
However, they could be read together to determine
the widely accepted, absolutely non-breachable
principles of international governance. In 1969, the
Vienna Convention on the Law of Treaties recognised
that some rules of international law cannot be
derogated from.[11] The drafters mentioned the use
of force, slavery, piracy, and genocide as preemptory
norms[12] that have since been treated as such.
In determining responsibility, erga omnes obligations
are a good place to begin to understand what
obligations a State has towards the global community
that are well-established under international law. For
attribution of responsibility in the case of COVID-19–
i.e., for the massive loss of lives and livelihoods—
there is a need to understand whether China
breached any obligation towards the international
community, and what kind of obligation it was.
Obligations erga omnes are the broadest, and at the
same time the narrowest principles that could help
articulate such a responsibility.
Furthering the Vienna Convention, the ICJ famously
enumerated four erga omnes obligations: the
outlawing of acts of aggression; the outlawing of
genocide; protection from slavery; and protection
from racial discrimination.[13] Along with these four
obligations, 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[14]), the Advisory Opinion on
the Legal Consequences of the Construction of a Wall
in Occupied Palestinian Territory,[15] and the erga
omnes obligation prohibiting the use of torture which
was recognised by the International Criminal Tribunal
for Yugoslavia in the Furundzija case.[16] Normatively,
a duty to prevent international harm cannot be said to
be an obligation erga omnes.
The three basic propositions upon which the
contemporary doctrine of State Responsibility rests
are the following: (i) responsibility of States is ‘breach-
based’, i.e. triggered by attributable conduct violating
international obligations; (ii) that it is ‘objective’, i.e.
not generally dependent on damage, or fault; and (iii)
that it gives rise to ensuing duties of cessation and
reparation (plus, exceptionally, a duty to provide for
guarantees and assurances of non-repetition).[17] It
may be surmised that recognised erga omnes
obligations pertain to aggressive, intentional acts by a
State that cause immediate and intentional harm to
others. These elements are lacking in the case of
COVID-19. It can be safely said that China has not
breached any erga omnes obligation, since a duty of
care to other nations in times of pandemics are not
part of this body of international law.
3. ILC’s Draft Articles on State Responsibility
In 2001, the International Law Commission (ILC)
adopted a complete text of the Articles on
Responsibility of States for Internationally Wrongful
Act.[18] Even though well-received and cited
habitually by the ICJ, the ILC draft articles by
themselves are not enough to invoke the
responsibility of any State. Be that as it may, even if
the draft articles are used as a basis for considering
China’s responsibility in the current case, it can be said
that it will be extremely difficult to hold China legally
responsible. According to the Draft Articles, every
internationally wrongful act of a State entails the
international responsibility of that State (Art 1).

Article 2 states that an internationally wrongful act
must:
be attributable to the state under international law;
and
constitute a breach of an international obligation of
the state
‘Attributability’ means that it is proved beyond
reasonable doubt that the act/omission of a State
caused the wrongful event. In climate change law, for
example, causation has been a long-standing issue: in
current jurisprudence, states cannot be made
responsible for emissions because it is difficult to
show the direct causal link between climate change-
related disasters and emissions by a particular State.
International action on climate change adaptation—
consisting mainly of aid projects with a focus on
certain environmental issues—contrasts sharply with
the restorative obligations of a State responsible for
an internationally wrongful act.[19] The objective of
mitigating climate change through “quantified
emission limitation and reduction commitments”
differs in terminology and substance from the
obligation of a state responsible for a continuing
internationally wrongful act to “cease that act”.[20]
In that way, an obligation of a state to not emit GHG
because it causes harm in the form of global warming
cannot be, as such, proved under international law.
Even if the ILC succeeded in codifying the Articles on
State Responsibility, the requirement of attribution
and causation, rather than focusing on the duty of a
State to cooperate would not resolve the issue of
addressing the human costs of the spread of COVID-
19. The lack of a detailed understanding of what state
obligations should be, will bring the discussion to erga
omnes and will keep international law restricted to
intentional and aggressive breaches rather than
insidious ones, such as the current pandemic.
The ILC also has draft articles on the prevention of
transboundary harm from hazardous activities.[21]
This brings the analysis to the question of whether the
rule relates to the harm caused, or to specific
activities which would cause harm. The answer entails
different consequences particularly in the case of
China’s responsibility. If the harm itself from whatever
source or activity is prohibited, then the nature of the
activity is irrelevant. If, on the other hand, State
responsibility depends on whether a specific activity is
allowed or prohibited, then the question of how to
deal with activities not prohibited by international law
has to be addressed. Accordingly, assuming that the
virus came from bats or pangolins,[22] is wildlife trade
a hazardous activity under international law? If it is
not, then the ILC articles on transboundary harm
would not apply prima facie.
If the no-harm rule is not about whether or not the
relevant activity as such is unlawful, but whether or
not the home State has done everything in its means
to avoid causing transboundary harm, then the
approach by the ILC seems to be fundamentally
misconceived and, to a certain extent, superfluous.
[23] What is more, it waters down the no-harm
principle, which should be strengthened instead. In
the words of Rosalyn Higgins,[24] former President of
the ICJ, “If what is required for something to fall
within the law of State responsibility is an
internationally wrongful act, then what is
internationally wrongful is allowing the harm to
occur.”
Therefore, it is important that the international
community understand the different facets of
available principles so that legal processes may be
strengthened. This can be done by (i) advancing the
no-harm rule by focusing on the harm rather than the
activity; and (ii) articulating and advancing erga
omnes obligations to include the no-harm principle
The Principle of ‘State Responsibility’: Practical
Examples
State responsibility is of two kinds: the responsibility
of a State towards its own citizens, and the
responsibility of a State towards extraterritorial
citizens where acts of one State have an impact on
citizens of other countries. This brief focuses on the
latter, and will therefore not be addressing the case of
Urgenda, a leading case in human rights law and
climate change.[25]
1. The case of Kivalina: on the difficulty of establishing
a causal link
In Kivalina v ExxonMobil Corp,[26] a native Alaskan
village filed a suit seeking monetary damages from
several oil, coal and power companies. Their claim was
that because of emissions from these companies, the
inhabitants of Kivalina would have to relocate as their
lives and livelihoods have been disrupted by the
activities of those companies. The Court dismissed the
appeal on jurisdictional issues but also ruled that
Kivalina could not demonstrate that the companies
had caused them injury because the causal link
between the injury and the act could not be
established. Interestingly, the companies also argued
that Kivalina failed to state a claim that is recognisable
under international law.[27] The Court went on to
affirm the impossibility of determining “which
emissions”, that is, “emitted by whom and at what
time in the last several centuries and at what place in
the world” caused “global warming related injuries.”
It is usually assumed that the obligations to respect,
protect and fulfil human rights have territorial
application. This is supposedly inconsistent with the
extraterritorial scope of climate policies, with
particular regard to mitigation measures, which
necessarily have a transboundary effect.[28] An
analytical study of the human rights law on climate
change and the right to health does not clarify how to
attribute responsibility for GHG emissions to specific
States.[29] Theoretically, the same could be extended
to the current case where it would be highly difficult
to establish a direct causal link between an Indian
citizen’s loss of livelihood because of the lockdown, to
China’s state responsibility for failing to curb the virus
earlier. This problem will be amplified when
ascertaining whether a piece of evidence would be
accepted by an international court/tribunal as meeting
the required standard of proof to establish causation.
[30] These are questions to which international law
does not have answers, a fact seen in prior experience
in international climate change law.
2. Deepwater Horizon oil spill case: on the lack of an
international legal response for a disaster that can be
attributed to a particular country
The BP Oil Spill in the Gulf of Mexico in 2010[31]
remains one of the biggest oil spills in human history.
While it is often called an “environmental disaster”,
the impacts of the spill on human health, life, property
and livelihoods are still being seen a decade since the
incident. The reparation for damages was within the
United States under a mixture of specific clean air and
water acts, as well as tort and criminal law. The case
saw no international response even though the spill
impacted hundreds of people in Mexico, Cuba,
Panama and many other countries.
This exposes another problem in the attribution of
state responsibility to other countries. When a
corporation is responsible for an act or omission that
has adverse extraterritorial implications, what legal
framework may be applied? Major oil companies are
sprawling transnational behemoths which are
regulated by laws in a piecemeal fashion under the
authority of many states and countries. There are no
mechanisms to address them comprehensively at an
international level, and corporate law limits the
liability of the parts for one another. These structural
concerns are compounded by the critical role that oil
plays in the domestic and international economy and
state sovereignty over natural resources.[32] The
same can be applied in the case of wildlife trade. It
appears as if the cost of the oil spill beyond the US
was exclusively borne by the victims of the spill, and
the Gulf of Mexico itself.
Where private actors conduct an activity causing
environmental harm, the issue remains one of the
State’s duty of control – can this be translated to an
international obligation? In this regard, the concept of
due diligence – or standard of care – needs to be
evoked as a test to evaluate the conduct that is
required,[33] something currently undeveloped under
international law. The question is, if China does not
allow a detailed enquiry to ascertain whether the
spread of the virus was an act or an omission of China,
could the non-cooperation be legally interpreted as a
breach of an obligation? Realistically, China can easily
disallow an investigation citing sovereignty as an
excuse, which is a much more established principle, if
not the spinal cord of international law. This will
entirely disband the principles of no-harm, due
diligence, and good neighbourliness.
The international legal system is premised on
sovereign and equal states making agreements with
each other, whether through treaties or under
customary international law. Nation-states are the
primary subjects and objects of international law,
while corporations, despite their transnational reach,
have limited international legal personality.[34] This
greatly exacerbates the problem of attribution of
state responsibility. Also, there is little empirical
evidence that State Responsibility for damage has
been regarded by States as a positive inducement to
prevent acts that cause damages in the first place.
One example is the Chernobyl accident,[c] which
caused significant harm to a number of Northern
European countries, none of which attempted to
claim compensation from the Soviet Union. The
reasons for this reluctance were partly based on
political restraints, but also on legal uncertainty.[35]
Conclusion
Vague primary rules, a multiplicity of actors, the
different types of damages, and non-linear causation,
all pose significant challenges to the traditional law on
State responsibility.[36] To advance peace among
nations, general norms of international law were
adopted to prohibit any conduct of a State that could
cause considerable harm to other states, from which
international tensions would likely arise.[37] It is,
however, debatable how effective those norms have
been.
To establish State Responsibility, a State must commit
a wrongful act, either consisting of an action or an
omission. In other words, the secondary rules on
State responsibility (cessation of an act and/or
reparations) are applicable only where the conduct of
a State constitutes a breach of a primary international
obligation.[38] The first point is the nature of the
activity itself – did China indulge in an unlawful,
hazardous activity that led to the breakout of SARS-
CoV-2? Assuming that the virus came from bats or
pangolins that were being traded in Wuhan’s Huanan
market,[39] current international law does not
prohibit that activity per se.
The next question is whether China did everything in
its power to ensure the timely containment of the
virus, and if it did not, if that constitutes a breach of
an international obligation. In 2002, during the SARS
breakout, experts opined that China’s reluctance to
cooperate and to share information on unusual
disease events in Guangdong province contributed to
the regional and global spread of the new disease.
According to David Fidler, in the case of SARS, China’s
reluctance to share epidemiological information, and
being uncooperative and secretive on data, did not
constitute an internationally wrongful act because
such behaviour did not breach any international legal
obligation on the part of China. China’s reluctance to
cooperate with public health officials from WHO and
other governments may have made the public health
threat from SARS worse, but it does not appear to
trigger state responsibility under international law.
[40]
To bolster international obligations and resultant
responsibility, it is necessary to support the no-harm
principle which can be widely applied to govern state
behaviour. Sadly, the gap between theory and
practice in the execution of “do no harm” has been
widened by real cases. As discussed earlier, instead of
the no-harm principle, the climate change regime has
built on the basis on the principle of common but
differentiated responsibilities. Accordingly, some
Western states have accepted a greater moral
responsibility as wealthy or “developed” states, but
no specific causal responsibility as industrial states[41]
that have caused harm to other countries.
International law has not kept pace with the
exponential growth in the inter-dependence of
nations. While acts or omissions of one State have
immediate and concentrated impacts on others, as
witnessed in the COVID-19 pandemic, international
legal systems have not simultaneously evolved to
address rights and responsibilities arising from these
inter-linkages between nations. Therein lies the
biggest argument favouring stronger laws and a more
egalitarian and binding structure of the international
rule of law.
A recent news article in China says that the country
will ban wildlife trade but not in the case of Traditional
Chinese Medicine;[42] this leaves the world possibly
vulnerable to future pandemics. While countries are
woven inextricably and intrinsically through trade,
society, culture, and travel, rules of attribution of
responsibility in cases when one State becomes
responsible for a widespread pandemic in other states
have been developed so slowly that it amounts to not
having developed at all, leaving vested national
interests at the helm of international relations.
isruptions caused by the global spread of COVID-19
are likely to generate claims for different types of
responsibility, whether domestic or international. This
contribution focuses on one type of responsibility
under international law, that of State responsibility
for internationally wrongful acts. It does not consider
the probity of specific alleged breaches – for instance
whether China has breached its obligations under the
World Health Organisation’s (WHO’s) International
Health Regulations to notify the WHO of the virus in a
timely manner, or the general international law due
diligence obligation on States not to allow acts under
their jurisdiction to harm other States. The object here
is instead to comment on how State responsibility
issues arising in the context of the COVID-19 crisis fit
with trends regarding the rules of State responsibility
themselves; that is, the rules pertaining to what
generates responsibility and its enforcement. Some
possible future developments are also addressed.
COVID-19 and the Generating Act
Whether or not it is enforced, State responsibility is
automatically generated as a matter of law by the
presence of the internationally wrongful act, which is
to say an act of a State in breach of its obligations and
not justified on one of the grounds recognised by the
law. The question of when an act is one of the State
has long been a focus of attention and especially so in
relation to non-State actors (NSA) since the Al Qaida
attacks of September 11, 2001. This focus was then in
more recent years, joined, perhaps even superseded,
by another concern that characterised a large number
of prominent responsibility claims: the question of
proof of a State’s involvement, often directly through
its established organs such as the military, in acts in
breach of international obligations. So for instance,
could it be proven that Russia was involved in the civil
war in the Donbass region of Ukraine from 2014; that
the acts of (Chinese mariners) ‘Little Blue men’ in the
South China Sea or (Russian soldiers) ‘Little Green
Men’ in Crimea were indeed State acts. The same
question also arises with cyber-attacks: is there proof
that the suspected State is indeed the author of the
attack. The focus in all these instances is on
attribution, the subjective element of the
internationally wrongful act.
With COVID-19 the focus thus far is less on the
question of whether acts are ones of the State but on
the acts themselves: whether what the State is doing
amounts to a breach of an international obligation –
the objective element of the internationally wrongful
act. But the question is still one of proof. This focus
arguably reflects, at least partially, current broader
trends to ‘reconstruct’ truths, taking uncertainty to a
higher level since bearing on acts themselves and not
simply on actors regarding established facts. In this
context, the Australian call for an international fact
finding enquiry, whilst perhaps better pursued
through international fora (prioritising multilateralism
over unilateralism), is a logical – and intrinsically lawful
- attempt to reduce that uncertainty. If accepted, and
it could only be operationalised with consent, it would
be an initiative that would benefit all sides by
reintroducing certainty, stability and consequently the
rule of law.
Knowledge of the facts is not only important for
determining if responsibility has been generated, but
also in order to know whether the sanctions to
enforce that responsibility are legally justified. Such
counter-measures are only lawful if, amongst other
conditions, they are a response to an on-going
internationally wrongful act. But with no breach
established, there is for instance no lawful ground for
the US to adopt sanctions against China. Likewise,
Australia having committed no prior internationally
wrongful act in calling for an independent
international investigation, cannot be lawfully
subjected to otherwise unlawful trade sanctions
simply because of that appeal.
Knowledge of the facts is not only important for
determining if responsibility has been generated, but
also in order to know whether the sanctions to
enforce that responsibility are legally justified.
Justifying Breaches to Come
If the above analysis turns on the interplay of truth
and law, it is possible that future State responsibility
issues arising from the Coronavirus crisis will play on
the concept of time. This too is part of a trend, one
that has been increasingly present since the end of
the Cold War. Going forward, breaches by States of
their obligations arising from COVID-19 will relate less
immediately to the pandemic itself but instead to the
economic crisis it has generated. This crisis will likely
result in severe financial hardship for States, leading
some to breach their international obligations. These
States are then likely to claim that these breaches are
justified on the basis of a state of necessity – a plea
enabling a State temporarily to set aside an obligation
protecting a interest of another State in order to avert
a grave and imminent peril threatening one of its own,
more important and essential, interests.
The cases, including those concerning the Argentinian
financial crisis of the early 2000s, show that necessity
pleas invariably fail for two reasons: the invoking
State cannot prove that the temporary breach of its
obligations was the sole means of averting the peril
and second, the State invoking the plea is found to
have contributed to the onset of the peril, thereby
excluding its applicability. So for instance, where a
State was slow to respond to COVID-19 (by for
instance not initiating prompt shut-downs), it can
easily be said that it contributed to the onset of the
peril, rendering a necessity plea inaccessible.
That said, greater opportunity arguably exists in
theory today, than in the past, to invoke the necessity
plea. This is because States can exploit to their
advantage the elasticity that has been brought to the
concept of time, one that has played out in state of
necessity’s criterion of ‘imminence’. Imminence has
increasingly lost its connection to ‘temporal
imminence’ or ‘imminence in point of time’. This
became apparent in the mid to late 1990s, enabling
state of necessity to cater to the precautionary
principle. More recently Professor Harold Koh, legal
advisor to US Secretary of State Clinton advocated
‘elongated imminence’ in the context of self-defence.
Whilst that position does not reflect the state of the
law of self-defence, it does reflect the trend towards
embedding time’s elasticity. Its effect in the COVID-19
context will be to allow attempted derogations in
necessity to come earlier and with less apparent
connections to the crisis. The legal scope to deviate
from obligations thus widened, perhaps the only
consolation for the international lawyer is that state
of necessity is at least a legal argument (albeit one
with detractors, including the present writer),
something all too often lacking today as truth and law
are debased by the world’s most important political
powers.
As the saying goes “History repeats itself”, it is
claimed that China knowingly as well as deliberately,
failed to adhere to international health regulation in
preventing novel Coronavirus (nConvid19). Therefore,
China should be held responsible for thenConvid19
outbreak.IN 2002, SARS spread from Guangdong
province of China. The SARS epidemic affected 28
nation-states by the year 2003. The total human
casualty was 774 from the disease at that time. The
world realized this human loss could have been
avoided, had China not suppressed the happenings
and vital public health information for several weeks.
This ill-fated event led the World Health Organisation
(WHO) to bring in the new International Health
Regulation (IHR), adopted in 2005. World wide a total
1,310, 205 people have been affected so far and 72,578
have died from nConvid19 as the numbers of affected
and death toll are rising exponentially. The doctors,
health workers, sanitisation workers, police
personnel, have been running against the time to save
thousands of lives. Many scholars claimed that China’s
conduct relating to nConvid19 outbreak violated IHR.
And China should be held responsible for the
wrongful or malafide acts before an international
tribunal. This article will examine the possibility of
holding China accountable for its deliberate inactions
which could arguably violate the rules of IHR; can
China be held responsible under general international
law vis-à-vis under the rules of State responsibility;
examining the possibility of taking China to an
international tribunal for paying damages to countries
which suffered an enormous loss in terms of human
lives and economic slowdown.
Jurisdictional Challenges in International Adjudication
Generally, international dispute adjudication is a
consent-based system. This is the leading challenge
international dispute adjudication confronts with. The
parties must agree that the dispute between them
shall be submitted and adjudicated by an international
tribunal. The consent maybe given in the treaty itself
which is alleged to be violated or by concluding a
compromise (a special agreement between
disputants by which a dispute is submitted to
international adjudication).
Article 75 of the WHO Constitution refers to the
International Court of Justice (ICJ) for the settlement
of disputes. It provides that any question or dispute
relating to interpretation and application of the
Constitution shall be referred to ICJ if the same is not
settled by negotiation or by Health Assembly. But the
disputant parties are free to choose any mode of
dispute settlement instead triggering ICJ jurisdiction.
In the Armed Activities (Case Concerning Armed
Activities on the Territory of the Congo 2002) case,
the ICJ observed that Article 75 of the WHO
Constitution recognises the Court’s jurisdiction (Para
99 of the Jurisdiction and Admissibility of the
Application). The Court held that it is empowered to
deal with any question or dispute relating to
interpretation and application of the instrument.
Thus, any dispute concerning interpretation and
application of the WHO Constitution can be settled by
the ICJ adhering the due procedure laid down in
Article 75. Recently, the ICJ in a case (Ukraine v,
Russian Federation 2019) interpreted Article 22 of
CERD (Convention on the Elimination of All Forms of
Racial Discrimination 1969) that it gives alternative
preconditions to the Court’s jurisdiction. Fulfilling
either of them would trigger Court jurisdiction. If we
interpret Article 75 of the WHO Constitution as ICJ
resorted to in the case between Ukraine and Russia,
the State(s) only has to satisfy negotiation condition.
It does not need to satisfy World Health Assembly.
WHO Constitution contains the framework
establishing the organisation, it includes the object
and purpose, membership institutional structure and
functions. Since it lacks substantive obligations
concerning rules and regulations on public health.
Thus, it is very much challenging how a State could
frame complaint against China. In order to make a
case a State needs to pose the violations rules of IHR
as the question or dispute relating to interpretation
and application of the WHO Constitution.
Violation of Rules of International Health Regulation
and Possible Claims under WHO Constitution
IHR shall be universally applied in the global interest
for the protection of the human race from the
international spread of the disease. It is one of the
principles incorporated under article 3 of IHR. WHO
shall be guided by the principle of universal
application of IHR along with adhering to other
principles such as human dignity, fundamental
freedom, human rights, and UN Charter.
A State is obliged under article 5of IHR to develop,
strengthen, and maintain public health infrastructure
which will help in detecting, monitoring, reporting,
and notifying the events of the global health crises.
Article 6 talks about the public health emergency of
international concern (PHEIC). In the event of PHEIC,
the State shall have to communicate through National
IHR Focal Point, most efficiently, all the public health-
related information and events taking place within its
territory to the WHO within 24 hours of the
assessment. The State(s) will keep WHO informed
with accurate and detailed public health information,
inter alia source and type of the risk, number of cases
and deaths, measures taken to prevent spreading
disease etc. Article 7 covers explicitly the unexpected
or unusual incidents related to public health
irrespective of origin or source. It imposes an
obligation upon States to share public health
information with WHO even the origin or the source
of the disease is unknown to the State itself.

The theory of hatching nConvi19 in the laboratory of
the city of Wuhan has been refuted by a group of
researchers. Kristian Andersen, PhD, one of the
authors of the paper, “The proximal origin of SARS-
CoV-2, said “by comparing the available genome
sequence data for known coronavirus strains, we can
firmly determine that SARS-CoV-2 originated through
the natural process.
A novel influenza-like illness was found in the body of
workers and customers of the Wuhan city’s Huanan
Seafood Wholesale Market in the mid-December 2019.
On 30th December Li Wenliang, an ophthalmologist,
at the Wuhan Central Hospital, revealed the
information online. Although Wuhan public health
authorities solicited information about the spreading
of “pneumonia or unclear cause”, it suppressed Li
Wenliang’s alarm on the nConvid19. Many medical
professionals and journalists who tried to disclose
information about nConvid19 were silenced and
detained by the Chinese authorities. On December
31st, the Wuhan Municipal Health Commission
wrongly claimed that there is no human to human
transmission of nConvid19.
Furthermore, the Commission described it as seasonal
flu which is preventable and controllable. Till 14th
February, China waited to disclose that around 1700
healthcare workers have been found positive of
nConvid19. It is more than apparent that Chinese
government evidently suppressed and withheld the
important public health information for almost two
months. This may conclude that China intentionally as
well as deliberately failed to communicate
information with WHO in the event of PHEIC.
According to article 37 of the WHO Constitution, the
Director-General of the WHO and the stuff shall be
independent and impartial while exercising powers
and functions. In order to remain independent and
impartial, they shall not seek or receive instructions
from any government or from any external authority.
On the other hand Member States have been obliged
to respect the international character of the Director-
General including staff and not to influence them. An
affected State could make a potential claim that China
deliberately tried to influence the Director-General of
the WHO and the stuff by allegedly withholding
information, providing inaccurate or false information,
and by not providing information in the crucial time.
Now, the difficulty ascends as to how do we link the
violations of IHR with the violation of the WHO
Constitution? The State could well invoke articles 21
and 22 of the WHO Constitution. Article 21 gives WHO
authority to adopt regulations concerning sanitary
and quarantine requirements, prescribing standards in
respect to diagnostic procedures, nomenclatures with
respect to disease, causes of death and public health
practices etc. Article 22 talks about the procedure of
coming into effect the regulations adopted by Health
Assembly, rejection or reservation of the Member
State to the regulation under article 21. Thus, it could
appear that the dispute is one of the interpretation
and application of the WHO Constitution since China’s
alleged violations of rules of IHR indirectly violated
articles 21 and 22 of the WHO Constitution. Some may
argue that articles 21 and 22 are not substantive rules
in nature but only procedural. They are only
concerned with the Health Assembly’s authority to
adopt and the procedure of coming into force of IHR.
Thus, there is no substantive obligations imposed
upon the Member States by these two articles.
Draft Articles on State Responsibility and
Accountability of China
Analysing factual circumstances, prima facie it
appears that conducts of China are wrongful and
violated international law. If so, then what kind of
remedies are available to the States? The Draft
Articles on State Responsibility of States for
Internationally Wrongful Acts 2001 (Draft Articles)
was adopted by the ILC at its 53rd session in 2001 and
submitted to the UN General Assembly. Although the
Draft Articles is not legally binding on the States, the
document is authoritative and has persuasive value.
The ICJ often takes recourse to the Draft Articles in
interpreting international law and solving disputes
between States. The reason for the high persuasive
value of the Draft Articles, mainly because most of the
provisions have attained the status of Customary
International Law (CIL). Draft Articles under article 1
says every internationally wrongful act of a State
entails international responsibility of that State. Under
Article 2, the wrongful acts are those actions or
omissions which constitute breach international
obligation and can be attributable to the State under
international law. The conduct is attributable when a
State organ commits it through the legislature,
executive, and judiciary or any other functions
irrespective of position it holds in the organisation of
the State or character of as an organ in the central
government or in a territorial unit of the State.
Responsibility emanates from the local Wuhan
authorities to the Chinese central government which
are all the State organs whose alleged wrongful
conducts could be attributable to China. Organs
include any person having status in accordance with
the internal law of the State. China’s alleged willful
and intentional failure to share information
expeditiously with WHO in the event of PHEIC in
accordance with IHR constitutes breach of
international obligations under article 12 of the Draft
Articles. Even China is responsible for article 14 for the
continuing breach of obligation. A combined reading
of both articles reveals that a State is in breach of
international obligation when its act or a continuing
act is not in conformity with the obligation imposed
on it. Legal consequences follow the international
responsibility of a State. A study at the University of
Southampton revealed that timely intervention one,
two, or three weeks earlier in the crisis could have
reduced the cases by 66%, 86%, and 95% respectively.
Thus, had China intervened responsibly and timely,
the number of people affected could have been
reduced. The State is under obligation to make full
reparation for both material and moral injury caused
by its wrongful acts under article 31. The ICJ in the
Corfu Chanel case (1949) held that no State might
knowingly allow its territory to be used for acts
contrary to the rights of the other States. Simply
speaking, China is under obligation that individuals
within its territory do not cause harm to the rights of
the other States. The reparation shall be in the form
of restitution, compensation, satisfaction, and even in
the form of assurance of non-repetition of the
wrongful act. Restitution as a form of reparation
means, the State is responsible to re-establish the
situation which existed prior to the commission of the
wrongful act. If restitution is not possible or not a
suitable form of reparation in a particular case, the
injured State shall be entitled to compensation which
will cover financially assessable damage. If both types
of reparation fail to make good, the wrongful State
shall make good in the form of satisfaction which may
consist of an acknowledgement of breach, an
expression of regret, or a formal apology.
plays a vital role in the implementation procedure of
the ICJ decisions. Article 94 provides that in case of
failure or non fulfilment of the obligation under the
judgment, any party may recourse to UN Security
Council and the Council will take necessary steps inter
alia recommendations, or measures to be taken by the
disputant to enforce the judgment. Thus, as a P5
member, China has the power to block any action that
the UN Security Council might take to give effect to
the ICJ judgment. Another less vigorous way to hold
China responsible is resorting to advisory jurisdiction
of the ICJ. Invoking the advisory jurisdiction of the ICJ
does not need consent from the disputant parties.
Under Article 96 of the UN Charter UN General
Assembly, UN Security Council, other organs of the
UN and specialised agencies that maybe authorised by
the UN General Assembly may seek advisory opinions
of the ICJ on any legal question or any legal question
arising within the scope of their activities (for other
UN organs and specialized agencies). The problem
with the advisory opinion of the ICJ is, it lacks binding
authority. Thus it leaves the enforcement of the
decision on the disputant States and the UN General
Assembly good faith and civilized behaviour.

Conclusion

Taking a State to the ICJ or any other international

tribunal is a herculean task before an aggrieved State
since as pointed out above that the international
adjudication is consent-based. It is highly unlikely that
China would submit the dispute before an
international forum. The challenge is more
painstaking when the perpetrator State is powerful
and influential militarily and diplomatically. One must
not forget that China holds permanent membership
of the UN Security Council, which enables China to
invoke veto power to block events once its interest is
at stake. This is what P5 members of the UN Security
Council often does (did) as revealed by history of UN.
Even if China agrees or the ICJ finds jurisdiction over
the dispute and finds China responsible for nCovid19
outbreak, the contest still be there in implementation
of the judgment. The decisions rendered by the ICJ
shall be obeyed willingly by the disputant parties. The
UN Security Council as a custodian of world peace
"State responsibility" was originally conceived as a set
of international rules governing States' international
obligations in their relations with other States. A
State's primary obligation is to pay compensation or
make reparation for injuries suffered by nationals of
other States. From an injured State's point of view,
State responsibility represented the State's power to
protect its citizens outside its national boundaries or a
State's exercise of its right and duty to do so. A State
was traditionally empowered to extend its diplomatic
protection to its Citizens or nationals wherever they
might be located, including another State's territory.
This aspect of customary international law was known
as "diplomatic protection of citizens abroad.
Conversely, a State's exercise of diplomatic protection
vis-a-vis an offending State was predicated upon the
offending State's failure to meet the minimum
international standard for "the treatment of aliens. In
other words, the injured State was exercising its
power of diplomatic protection to demand
compensation or reparation for personal injuries,
including loss of life; economic or financial injuries,
including loss of property or assets; and property
damages, including loss of investments,
expropriation, nationalization and requisition or
confiscation of property belonging to foreigners.
Since 1975, the scope of State responsibility law has
expanded far beyond the traditional notion contained
in the various draft conventions prepared by national
and international institutions of higher learning, such
as the Harvard Research in International Law and the
Institute of International Law. State responsibility has
even expanded beyond the notion contained in the
first generation of reports submitted by Dr. Garcia-
Amador. The current notion of State responsibility is a
comprehensive regime of the law of obligations,
covering general principles of States' international
responsibility, 'including primary rules that establish
all types of internationally wrongful acts attributable
to a State and secondary rules that flow as a legal
consequence from a State's breach of an international
obligation, regardless of its origin.
Thus, as a topic for codification, State responsibility
has progressed over time. From the notion of a
special regime of State responsibility for injuries
suffered by aliens on a State's territory, State
responsibility has evolved into a comprehensive
system of international responsibility of a State,
regardless of whether aliens or individuals are
involved and regardless of injuries.