Reflections On The Concept of Responsibility in Epidemics

Reflections
on the Concept
28 of Responsibility
in Epidemics
Alex Silva Oliveira *
SECTION 1 INTRODUCTION
The legal discussion about addressing State responsibility 1,

particularly on an epidemic outbreak, is far from being settled. Unfortunately,
the legal framework on responsibility has proved to be more doubtful than
responsive to face legal complex 2 situations such as epidemics. Considering
that, this study aims to analyze in which circumstances and why “the legal
responsibility 3 of the State” could be a legal concept, from an epistemological
1. * PhD candidate at the University of Montreal. Master’s degree at University of

Sao Paulo. Lawyer.
. “States must conduct themselves within the rules of international law and are to
maintain law and order within their territory”, James R. Fox, Dictionary of International
Law, 3rd ed., New York, Oceana Publications, 2003, p. 282.
2. Based on a sociological perspective, the term “complex” is used here to indicate
the existence of a social system such as unity that includes diversity. The latter
makes unity, which is inseparable from diversity. Complexity is also observed by
characteristics that are not found in the parts if we consider them in isolation. These
characteristics are called émergences, Edgar Morin, “De la complexité en sociologie”,
Retranscription de la conférence inaugurale du Rencontre de socio-anthropologie de
Grenoble, 20 January 2012, pp. 1-2, available at http://www.intelligence-complexite.
org/fileadmin/docs/1306morin.pdf, last accessed 3 January 2021.
3. The development of the word “responsible” in the thirteenth and fourteenth
centuries was not created in law or used by the legal field. In fact, the law in that
time was not considered autonomous or preeminent due to the fact that it was part of
morality, of the religion, Michel Villey, “Esquisse historique sur le mot responsible”,
Archives de philosophie du droit, 1997, p. 45. “In ancient oriental maritime trade, there
was already what would be described objectively as risk awareness accompanied by the
corresponding legal institutions” (Oppenheim), “which to begin with were scarcely to
be distinguished from divinatory programmes, appeals to tutelary gods, etc. but which
from a legal point of view . . . clearly performed insurance functions” (Luhmann). Adolf
L. Oppenheim, “The Seafaring Merchants of Ur”, Journal of the American Oriental
Society, Vol. 74 (1954), pp. 6-17; Niklas Luhmann, Risk: A Sociological Theory,
New York, Walter de Gruyter, 1993, pp. 8-9. “Responsible” in the legal perspective
is synonymous with “punishable”. The latter is understood as the legal consequences
against voluntary and determined acts considered as punishable, see Lucien
Lévy-Bruhl, L’idée de responsabilité, Paris, Librairie Hachette et Cie, 1884, pp. 53
and 71.
28 oliveira GB C2021 covid.indd 619 21/07/2021 19:29

620 PART IX – CHAPTER 28
standpoint 4, that is fit for the purpose of enforcing State legal obligations in the
case of epidemics, particularly regarding the gray zone between the unknown
and the statement of an epidemic as globally recognized by States and the
World Health Organization (WHO).
Contemporarily, theories of international legal responsibility of the State 5
are essentially based on the pacta sunt servanda principle, due to which
the State has the duty to perform treaties in good faith. In this “contractual
responsibility”, when a State perpetrates a violation of the law of treaties,
the law of State responsibility enforces a general obligation to the State
perpetrator to compensate the damage caused or to restore the status quo. On
the other hand, when there is no treaty or any international formal binding
document, but there are still duties to be performed by the State, for example
from customs or ius cogens, the State has an “extracontractual responsibility”
or “Aquilian responsibility” 6. Differently, the objective responsibility 7, for
example, is widely applied in international environmental law and allows to
conceive the responsibility of the State outside of the dichotomy of “contractual
4. “In France, ‘epistemology’ is usually understood to mean the theory of science.
However, contemporary philosophy, particularly in its analytical perspective, has
imposed a second meaning, e.g. the theory of knowledge. These two meanings do not
really lead us to two different dimensions, but their coexistence is a source of difficulties.
To speak of the theory of science is to question the forms, modalities, and foundations
of a certain type of knowledge; to speak of the theory of knowledge is, more broadly,
to ask what distinguishes a belief from knowledge, in what capacity can knowledge be
founded as such, etc. The first meaning is generally applied . . . when one takes as object
a set of identified scientific disciplines. This sound decision protects from confusion,
not from problems . . .”, see Sylvie Mesure and Patrick Savidan (eds.), Le dictionnaire
des sciences humaines, Paris, Presses Universitaires de France (PUF), 2006, p. 373. “It
is essentially the critical study of the principles, hypotheses and results of the various
sciences, in order to determine their logical (non-psychological) origin, their value and
their objective meaning”, see André Lalande, Vocabulaire technique et critique de la
philosophie, 18th ed., Paris, PUF, 1996, p. 293. In this study, epistemological approach
means an approach from the theory of science.
5. Here the diversified theories of “causal link” are included, which can be divided
in (a) theory of conditio sine qua non and (b) individualized theories (theory of
proximate cause; theory of efficient cause and pivotal cause; theory of adequate cause;
theory of human action; theory of the continuous imprinting of the harmful event;
theory of the objective imputation; theory of causal link with economic or functional
emphasis. For further details, see Isidoro H. Goldenberg, La Relación de Causalidad en
la Responsabilidad Civil, 2nd ed., Buenos Aires, La Ley, 2000, pp. 15-37.
6. James Crawford, Brownlie’s Principles of Public International Law, 8th ed.,
Oxford, Oxford University Press, 2012, p. 541; Christina Binder, “Does the Difference
Make a Difference? A Comparison between the Mechanisms of the Law of Treaties
and of State Responsibility as Means to Derogate from Treaty Obligations in Cases of
Subsequent Changes of Circumstances”, in Marcel Szabó (ed.), State Responsibility
and the Law of Treaties, The Hague, Eleven International, 2010, pp. 1-3.
7. In the Corfu Channel case, Judge Azevedo, in his dissent vote, stressed: “The
notion of culpa (fault) is always changing and undergoing a slow process of evolution;
moving away from the classical elements of imprudence and negligence, it tends to
draw nearer to the system of objective responsibility.” Corfu Channel (UK v. Alb.),
[1949] ICJ Reports, p. 4 at 85, Dissenting Opinion of Judge Azevedo.

RESPONSIBILITY IN EPIDEMICS 621
responsibility” and “extracontractual responsibility” – figures of subjective

responsibility. Although there are new law models of State responsibility in
objective responsibility, they only deal with “risk” and actual damages, leaving
little or no room for legal mechanisms to manage “danger” 8.
Arguably, those theories of international legal responsibility of the State do
not entirely fit, especially for the purpose of guaranteeing a fully adequate legal
regime of responsibility for the pre-epidemics context. This is so because, in
that stage, “risk” – that is, a sociological, not legal, conceptual foundation on
which all theories of legal responsibility have wholly relied – is not “marked” 9,
and consequently, the theoretical legal framework of responsibility of the State
lacks conformity to be fully applied. Instead of “risk”, it is “danger” – another
sociological, not legal, concept, that is just as important as “risk” – that is
“marked” in pre-epidemics.
Essentially, the difference between these two sociological concepts, “risk”
and “danger”, lies in the assumption that uncertainty exists in relation to future
loss. In the case of the former, the potential loss is due to a decision. It is
related to a human being’s cognitive 10 capability in making a rational and
logical decision-making process. In the case of the latter, the potential loss is
attributed to direct external causes, for example to the environment.
In pre-epidemics, when “danger” is much more self-evident than “risk”, it is
a matter to be dealt with predominantly by political or economic mechanisms
of the State in order to avoid the undesired event rather than a legal regime of
State responsibility per se. The latter will play a secondary role when those
political or economic mechanisms fail to secure the legal obligations enshrined
in treaties or obligations derived from customs or jus cogens.
8. “The distinction of risk and danger presupposes (thus differing from other
distinctions) that uncertainty exists in relation to future loss. There are then two
possibilities. The potential loss is either regarded as a consequence of decision, that is
to say, it is attributed to the decision. We then speak of risk – to be more exact of the
risk of decision. Or the possible loss is considered to have been caused externally, that
is to say, it is attributed to the environment. In this case we speak of danger”, Luhmann,
supra footnote 3, pp. 21-22.
9. In the schema of risk and danger the interest in security (or risk aversion or
avoidance of danger) is still presupposed but, being self-evident, is not “marked”.
For the linguistic meta-distinction of marked/unmarked in relation to the sides of a
distinction, see John Lyons, Semantics, Vol. 1, Cambridge, Cambridge University
Press, 1977, pp. 305-311. Marking is then a means of directing attention to where the
problem lies, see Luhmann, supra footnote 3, pp. 24-25.
10. Cognition seems to take shape as a structure regulating positions and relationships
between different concepts whose central function is to schematize the internal and
specific organization of a certain type of phenomena. Cognition, understood as a
potential developed and balanced conceptual structure, is thus underlying the different
“intelligent” processes and systems of human being, among which language with its
different types of discourse (scientific, legal, philosophical, literary, etc.) occupies a
quite exceptional position, see André-Jean Arnaud (ed.), Dictionnaire encyclopédique
de théorie et de sociologie du droit, Collection Anthologie du Droit, 2nd ed., Librairie
générale de droit et de jurisprudence (LGDJ), Paris, 2018, p. 87.

It will be underlined that the present theories of international legal

responsibility and theories of “causal link” make little or no distinction
about those situations that create misleading information and result in inap-
propriate management of legal institutions of the law of responsibility,
particularly in the “danger” context. That is precisely why the concepts of
damage, causality, imputation and obligation should be reviewed to set a
conceptual model 11 for this field of law, particularly when it aims to represent
operative and internal mechanisms of responsibility in international health
law 12.
An epistemological investigation of the theory of responsibility was carried
out to evaluate the State responsibility theory’s limits. Assumptions were
first based on sociological 13 and historical approaches due to the fact that the
pillars’ concepts of the theory of responsibility are not only conceptualized
in the legal knowledge field itself 14. An interdisciplinary 15 approach can help
understand the limitations of the actual legal responsibility theory to logically
respond to complex situations from an epistemological perspective. Following
11. In this work, model should be understood as containment model: “On this view,
one concept is a structured complex of other concepts just in case it literally has those
other concepts as proper parts”, Stephen Laurence and Eric Margolis, “Concepts and
Cognitive Science”, in Eric Margolis and Stephen Laurence (eds.), Concepts: Core
Readings, Cambridge, MA, MIT Press, 1999, p. 5.
12. The right to health is of course a human right, and health issues, which arise
in times of peace as they do war, have both a political (humanitarian) and a technical
(medical) aspect. Health law is in fact a synthesis of all this and can be defined as the
body of legal rules relating to the international protection of health, see M. Bélanger,
“Une nouvelle branche du droit international: Le droit international de la santé”, Etudes
internationales, Vol. 13, No. 4 (1982), p. 613, https://doi.org/10.7202/701420ar, last
accessed 2 January 2021.
13. The sociological field aims “to confront the law with elements that are external to
it and, in particular, with its social and political context”, Olivier Corten, Méthodologie
du droit international public, Brussels, Editions de l’Université libre de Bruxelles,
2017, p. 33. “The purpose of the sociology of law is to confront legal rules or concepts
of international law with the existing social reality”, Renato Treves, Sociologie du
droit, Paris, PUF, 1995, p. 21.
14. Jacques Henriot has asserted that the word “responsibility” was first used as
early as 1780 by two political men, Jacques Necker and Alexander Hamilton, who
applied it to the “responsibility of government”. If in its newer configuration, the word
is more recent, though its roots, which are very ancient, are in the field of law. The
Latin word sponsio, which means a solemn promise, is derived from the Greek word
σπουδη. This was used by Cicero in his works as well as the verb spondere, to promise,
the nouns sponsor (sponsor, guarantee), sponsum (object promised) and sponsus
(commitment). See Jacques Henriot, “Note sur la date et le sens de l’apparition du mot
‘responsibilité’ ”, Archives de philosophie du droit, 1977, p. 59, in Geneviève Viney,
“La responsabilité”, Archives de philosophie du droit, Vol. 35, Paris, Sirey, 1990,
p. 275. The modern legal concept of “responsibility” was only first noticed in the
middle of nineteenth century (Viney, p. 277).
15. The law can only be developed by expressing itself in consciousness and being
put into practice, separately or jointly, through an individual’s activities, see Léon
Husson, Les Transformations de la Responsabilité : Etude sur la pensée juridique,
Paris, PUF, 1947, p. 8.

that, a study on the coherence of the concepts that gravitate the theory of
responsibility in law has been undertaken using an analogical approach 16, a
useful method to assess the theoretical restrictions of the current legal theory
of responsibility. The previous steps’ findings provide a unique opportunity to
make important critiques 17 and improve and rethink contemporary conceptual
models regarding this field of legal studies.
This research explains why the paradigm of a “society of risk” 18
,
on which the concept of “responsibility” relies, does not fully embody
all social features of a post-modern 19 society. This can be observed by, for
example, the complexity of social consequences due to the emergence
of an epidemic. Additionally, the theoretical legal impact in the law of
responsibility will be studied when two fundamental sociological concepts
– “risk” and “danger” – are necessarily stressed in pre-epidemics. As a
logical consequence, this paper argues that other derived concepts need to be
redesigned as well to adapt them to situations when “risk” is less “marked”
than “danger”.
Finally, this paper argues that, when it comes to a current epidemic and a
post-epidemic context, a flexible up-to-date legal regime of “responsibility”
can properly, cohesively and coherently be interpreted in the light of duties and
obligations enshrined in the International Health Regulations (IHR), the general
theory of international law, the general theory of the law of responsibility and
the general theory of law.
16. In its broadest sense, any approach that seeks to explain or elucidate legal
terms, concepts or structures by analyzing the elements and showing how the whole
is understandable as a coherent ordering of the parts. See Arnaud, supra footnote 10,
p. 24.
17. The term “critique” here is understood as “a dynamic and dialectical pers-
pective of international law”, see Charles Chaumont, “Méthode d’analyse du droit
international”, Revue Belge de Droit International, Vol. 11 (1975), pp. 32-37. It is
distinct from the traditional and classical position but does not deny the existence
and importance of the latter in the building of legal knowledge. “Criticism” is also to
be understood as allowing the implementation of interdisciplinarity as an alternative
tool to the dominant disciplinary specialization model, see Violaine Lemay, “Critique
de la raison disciplinaire : une révolution tranquille?” TrajEthos, Vol. 6, No. 1 (2017),
p. 17.
18. The coined expression of Ulrich Beck connects mainly two fields of knowledge
in an indistinct way: sociology and political science. According to him, “the society of
risk is a society of catastrophe”, because it will be through the exploitation of the threat
that wealth will be created, see Ulrich Bech, La société du risque : Sur la voie d’une
autre modernité, translated from the German by Laure Bernardi, Paris, Flammarion,
2008, p. 43.
19. There is no consensus on the concept of post-modernity. However, it can be
noted that several modern phenomena are responsible for the self-dissolution of
modernity and advent of post-modernity, e.g. the advent of mass consumption and the
technoscientific boom. See Yves Boisvert, Le postmodernisme, Montreal, Boéral, 1995,
pp. 15-25 and 81-105.

SECTION 2 COGNITIVE AND CONCEPTUAL PREREQUISITES

REGARDING THE LAW OF RESPONSIBILITY:
IS IT POSSIBLE TO HAVE THEM ALL
ADEQUATELY ORCHESTRATED WHEN
IT COMES TO EPIDEMICS?
At a pre-epidemic stage, when human knowledge and tech-

nicity are not enough to avoid or at least prevent an epidemic, humankind
remains in a predicament whereby it is the environment that dictates possible
future loss. For this reason, some paramount cognitive 20 elements – the
common social knowledge about the mechanisms related to the unexpected
event; from this first assumption, the adequate capacity of decision-making
and, as a consequence of the latter, the free will of the agent to make a decision
all by himself 21 – that allow the agent to make a decision must be present in
the first place. Subsequently, it would be possible to speak of formal legal
requisites per se related to the establishment of legal responsibility itself for
action 22.
The legal observer 23 shall have the ability to define how far he is dealing
with a situation where “risk” is highlighted. For this reason, the current
concept of responsibility can be finely applied. On the flip side, when the legal
20. By using this term, this research is relying upon the activity theory, a social
theory of consciousness. The consciousness “can never be reduced to brain mechanisms
or representations inside one person’s head, because without other people and artifacts,
there is no consciousness . . . . Activity theory insists however that the brain does not
cause consciousness; rather it provides the physical matrix in which it can develop
and change”. This theory is essentially conceptualized in five principles: hierarchical
structure of activity, object-orientedness, internalization/externalization, tool mediation
and development. See Bonnie A. Nardi, “Concepts of Cognition and Consciousness:
Four Voices”, Australasian Journal of Information Systems, Vol. 4, No. 1 (1996), p. 66.
21. “The notion of responsibility is immediately suggested by consciousness. As
we believe we are true holders of our own actions, we admit we must manage it.” See
Lévy-Bruhl, supra footnote 3, p. 2. The author affirms that moral consciousness implies
necessarily the notion of responsibility. However, contemporarily, legal responsibility
has been developed to be separated from the idea of morality with the intention to be
extended and applied to legal public or private collective entities.
22. From the Latin actio, derived from agere, “to act”. As stated by Alain Touraine,
action is “a conduct placed in a social relation, particularly in class relations oriented
towards the maintenance, transformation or reversal of one or more elements of the
historical action system”. Otherwise, “action” cannot be mistaken with “attitude”,
which is the perception process that determines the possible or actual activity of the
individual in the social world. The “legal attitude”, in turn, is a relatively durable
disposition to react in a manner dictated by an intuitive or normative prescriptive
scheme of duty and right. This pattern coincides with a “living”, informal, impulsive
law. Touraine cited in Arnaud, supra footnote 10, pp. 6-7 and 43. These definitions
create more epistemological problems rather than a safe knowledge grounding, but this
will not be discussed here.
23. “The concept can only be seen from a second-order observer who is observing
another observer to see what the latter can and cannot see”, see Luhmann, supra
footnote 3, p. 21.

concept of responsibility turns out not to fit the situation in which the “danger”
is emphasized 24, the jurist will have difficulties in applying “traditional” legal
responsibility because at the bottom of the concept of legal responsibility
there is a general presumption that in a “dangerous” context, notably in pre-
epidemics, the decision-making processes of human beings are not directly
critical to envisage the undesired event. Moreover, due to the complexity
that usually underlies the determination of causality in pre-epidemics and the
harmful social consequences of epidemics, the operation of legal responsibility
in this context turns to be unfeasible.
As an example, prior to the Covid-19 outbreak, when the only fact known
was that a new virus was causing a handful of deaths in China, the global
community was not “marked” with risk. Rather, it was “marked” with danger.
From that, it is inferred by induction that, in fact, society swings from risk
to danger, back and forth, as far as knowledge and technicity are progressed
to empower rational decision-making to which responsibility could be
attributed. In other words, this constant movement of human society is a kind
of pendulum, if a simple harmonic one: by the force of the unknown and by
the undesired event, it pushes society from risk to danger. Nonetheless, by
the time technology and knowledge are developed, it pulls society back from
danger to risk.
This is the main reason why responsibility due to any exclusive (i.e. without
the possibility of direct human interference 25), scientifically unrecognized
(from a common social perspective), but somehow expected and imminent
natural cause of an undesired event, such as Covid-19, known to be caused
exclusively from a natural source, could not have been attributed to China, or
any other country 26: the cognitive and the conceptual prerequisites were not
24. “The distinction of risk and danger permits a marking of both sides, but not
simultaneously. Marking risks then allows dangers to be forgotten, whereas marking
dangers allows the profits to be forgotten that could be earned if risky decision is
made. In older societies it was thus danger that tended to be marked, whereas modern
society has until recently preferred to mark risk, being concerned with optimizing
the exploitation of opportunity . . . Therefore, we can treat these concepts as being
generalizable at will”, see Luhmann, supra footnote 3, pp. 24-25 and p. 27.
25. Another way through which we reach the recognition of a “proportional” type of
responsibility is to keep distinct the contribution of natural causes and those attributable
to the damaging party so as to place at the expense of the latter only the consequences
caused by his behavior instead of the entire damage. Another logical-argumentative
path that can lead to a proportional responsibility consists in identifying the damage to
be compensated in the increase (caused by the fact attributable to the responsible party)
of the probability of the occurrence of the damage suffered by the victim. See Marco
Capecchi, Il nesso di causalità: dalla condicio sine qua non alla responsabilità propor-
zionale, 3rd ed., Padova, Cedam, 2012, pp. 278 and 285.
26. The responsibility to the Earth, which extends to the entire living world, must be
based on the relationship of humans to each other, as part of humanity. See Yves Charles
Zarka, “Déduction de l’idée cosmopolitique”, Archives de Philosophie, Vol. 75, No. 3
(2012), p. 372, available at https://www.cairn.info/revue-archives-de-philosophie-
2012-3-page-371.htm, last accessed 25 January 2021.

present at the time of the epidemic arising 27. However, the IHR’s information-
sharing obligations (IHR 2005, Arts. 6 and 7), for instance, adopted by the
Health Assembly in view of a direct delegation prescribed by Articles 63
and 64 of the WHO Constitution, demand a clear and expected behavior
from an agent (the State) to be performed. In this case, despite the harmful
consequences remaining to be substantially addressed to a natural cause, and
allegedly delayed in the aforementioned 28, the performance of obligations
can greatly increase the extension and severity of the damage. For this, the
international responsibility of the State shall be assessed.
In addition, the distinction between risk and danger is vital to differentiate
central concepts in the law of responsibility, such as causality and imputation.
The former can be described as a category of causality’s determination 29 in
general. It implies the continuous and one-way connection between things or
events, or between states or characteristics of things, as well as between ideal
objects. The latter, known as the “causal link” 30, is the material connection
27. Similarly, this is exactly the justification for existing categories of different
degrees of civil capacities in law to which civil individual responsibility can be
attributed. For example, in Brazil a child under sixteen years old is considered, in
general, totally incapable of performing civil actions; between sixteen and eighteen
years old, the individual is considered relatively capable of exercising civil acts; and
then, when it turns to eighteen, the individual is considered fully capable of exercising
his or her free will (Brazilian Civil Act No. 10.406, 10 January 2002, Arts. 3, 4 and 5).
Moreover, the social dimension is a paramount feature in responsibility and “implies
into the verification of a fact that causes damage and social disorder; and needs a
legal reaction, but it also implies the existence of an entity to which an appeal can
be addressed because of its participation in the event”, see Viney, supra footnote 14,
p. 279.
28. There are similar obligations in environmental law to prevent environmental
harm, e.g. to inform and to consult and negotiate regarding activities that present a
risk of environmental injury, Brian D. Smith, State Responsibility and the Marine
Environment: The Rules of Decision, New York, Oxford University Press, 1988, pp. 80-
81. See the Lac Lanoux case, Arbitration (1957) (Spain v. France); Charter of Economic
Rights and Duties of States, General Assembly Resolution 3281 (XXIX), UN GAOR
Supp. (No. 31), UN Doc. A/RES/3281, Article 3; the International Law Association
(ILA), Helsinki Rules on the Uses of Waters of International Rivers, Report of the 52nd
Conference, pp. 477-533 (1967); Montreal Rules regarding “Transfrontier Pollution”,
Resolution No. 2, 1992, on Legal Aspects of the Conservation of the Environment,
ILA, Report on the 60th Conference (1982), Articles 5 and 6; UN General Assembly
Resolution on “Cooperation between States in the Field of Environment”, General
Assembly Resolution 2995 (XXVII), 15 December 1972, UN GAOR Supp. (No. 30),
at p. 42.
29. There are other two possible connotations for causality: the principle which
enunciates the causality’s norm (“the same cause always implies the same effect”),
and the legal literature that affirms the universal validity of the causality’s principle
(“everything happens accordingly to the causality’s norm”). See Mario Bunge,
Causalidad. El principio de causalidad en la ciencia moderna, 3rd ed., trans.
H. Rodríguez, Buenos Aires, Eudeba, 1972; Goldenberg, supra footnote 5, p. 1.
30. Recently, other elements which are external to imputation have been taken
into consideration by judges. For example, the technical aptitude for controlling the
risks of activities in which social disturbance is more likely to happen is taken into

between a previous act and damage 31. In fact, the meaning of “cause” is the
probability 32 and the increase of the risk of an undesired event occurring 33.
With respect to fault, historically the pluralist system (special affairs of
responsibility) has been predominant, and it is still the most popular when
compared to the monist system (general principle of responsibility). It is
important to know that fault is not always a necessary condition to be figured in
responsibility 34. It is not any kind of fault that attributes responsibility to those
who have committed it 35. It must be admitted that, between full responsibility
and complete irresponsibility, there are infinitive partial responsibilities that
are connected without any continuous solution. However, the infinity of those
dissociated affairs is undoubtedly incompatible with the requirements of
justice that urges uniformity 36.
It is also convenient to stress to whom responsibility can be addressed. For
this task, legal responsibility must be separated from moral responsibility 37.
The former is based on social utility and justice in the relationship between
who has caused a social disturbance and who has suffered its consequences.
Following this logic, it is not only individuals 38 that can be responsible for
damage, but also collective entities, as well as public 39 or private legal entities,
or even an unknown legal group – the latter can be accountable for damage
account in order to determine the different affairs related to the responsibility for
others that are recognized by law or by jurisprudence. See Viney, supra footnote 14,
p. 286.
31. The legal literature recognizes it as imputation facti or “material link”.
Regarding the particularities of the legal field, causality theory named this conceptual
model “causal nexus”, see Goldenberg, supra footnote 5, p. 1. The author has suggested
two distinctives categories of “causal link” in line with the different gnoseological and
ontic investigations: from one side, from the philosophy approach, it can be considered
the “equivalence condition” and the “self-caused”; from the other, from the legal
approach, he remarked on the “efficient cause” and the “adequate cause” (Goldenberg,
p. 11).
32. The interpretation of statistical data requires specific skills that, as a rule, are not
part of the jurist’s cultural baggage, but whose mastery is fundamental in order not to
incur gross errors. See Capecchi, supra footnote 26, p. 239.
33. It is not possible to indicate with certainty the existence of one specific
element of a case that is the causal link, but it is possible to indicate the probability
that a certain antecedent is related to the effect. See Capecchi, supra footnote 26,
pp. 214-215.
34. André Tunc, La Responsabilité Civile, 2nd ed., Paris, Economica, 1989, pp. 97-
131.
35. Viney, supra footnote 14, pp. 280 and 283.
36. Lévy-Bruhl, supra footnote 3, p. 51.
37. The notion of legal responsibility continues to be entirely objective in terms of
not having any moral aspect (Lévy-Bruhl, p. 45).
38. The individual’s capacity to cause damage as well as to help someone in need
has been sharply increased by the progress of science and technology. See Tunc, supra
footnote 35, p. 7.
39. This category obviously includes the State and other public international entities
to which responsibility can be attributed.

owing to a strong bond between members’ activities and the fact which caused
the damage has been acknowledged 40.
Analogically with international environmental law 41
, in the case of
epidemics, victims and damages can be difficult to determine with accuracy
and individualization because of the challenging task of foreseeing all effects
and consequences in time and space in association with human interference
(whether to prevent, minimize or stop epidemics). Consequently, conventional
legal mechanisms of reparation and responsibility occasionally fail to address
this issue adequately. It seems like the matter lies in the organization of up-to-
date, flexible legal mechanisms for the State to succeed in complying with its
obligations.
Regarding those mechanisms, international health legal instruments can
profit greatly from international environmental lawmaking experience.
Lately, a trend can be observed concerning the replacement of “traditional”
international responsibility mechanisms for “non-compliance procedures” 42 in
international environmental instruments. The Montreal Protocol is an excellent
example of this new trend 43 because the mitigation of traditional forms of
responsibility in that Protocol that can be analyzed in three aspects: (a) the
Implementation Committee, which serves to assess the “situation of non-
compliance can be accessed by a Member State of the Protocol which desires
40. The responsibility is not only connected with the idea of “participation”. Two
elements must be distinguished: on one side, the objective element, which emphasizes
the “causal nexus” (imputation); on the other side, the subjective element, which is the
psychological aptitude of someone to recognize himself as responsible (accountability).
See Viney, supra footnote 14, pp. 284-285.
41. Céline Nègre, “Responsibility and International Environmental Law”, in James
Crawford et al. (ed.), The Law of International Responsibility, 1st ed., Oxford, Oxford
University Press, 2010, pp. 803-813.
42. Sandrine Dubois-Maljean, “Un mécanisme original: la procédure de ‘non-
compliance’ du Protocole de Montréal relatif aux substances appauvrissant la
couche d’ozone”, in Claude Impériali (ed.), L’effectivité du droit international de
l’environnement – Contrôle de la mise en œuvre des conventions internationales,
Paris, Economica, 1998, p. 239. Some authors call it a form of “neo-responsibility”
that constitutes an example of “soft responsibility”, see P.-M. Dupuy, “Responsabilité
international pour manquement à des traités d’environnement et modes de règlement
des différends interétatiques”, in Environnement sans frontière and Ministère de
l’Environnement (eds.), L’application renforcée du droit international de l’enviro-
nement. Harmonisation et développement des procédures internationales de contrôle,
de sanction et de règlement des différends, [conférence internationale, Paris, 1996],
Paris, Frison-Roche, 1999, https://www.decitre.fr/livres/l-application-renforcee-du-
droit-international-de-l-environnement-9782876713130.html, last accessed 25 Feb-
ruary 2021.
43. See also the Compliance Procedure adopted within the framework of the Kyoto
Protocol on Climate Change during the First Meeting of Parties in December 2005,
Decision 27/CMP.1, “Procedures and mechanisms relating to compliance under the
Kyoto Protocol” (FCCC/KP/CMP2005/8/Add.3, pp. 96-108), and the procedure
adopted within the Cartagena Protocol on Biosafety, Decision BS-I/7 “Establishment
of Procedures and Mechanisms on Compliance under the Cartagena Protocol on
Biosafety”, 2004.

to bring to the Committee’s attention the conduct of another Member State.

Likewise, the procedure can be initiated by the Secretariat or by any party
that considers itself unable to comply with the obligations of the Protocol. It
ensures effectiveness in the implementation of the relevant instruments; (b) the
flexibility with which the conditions related to responsibility are implemented
is stressed in the verification of the wrongful act – the non-compliance will
not be considered a wrongful act entirely: the procedure is connected to
compatibility rather than to conformity; (c) the measures envisaged in case of
violating obligations are also distinct: there are mixes of positive and negative
measures – it can be offered financial and/or technical assistance as well as
being given a warning. Moreover, sanctions can have the form of suspension
of the rights and privileges derived from Protocol and, depending on the
situation, the measures adopted could be mixed” 44.
IS THE CONTEMPORARY REGIME

SECTION 3
ON INTERNATIONAL RESPONSIBILITY
ABLE TO DEAL WITH THE IHR’S DUTIES
AND OBLIGATIONS?
Under the present methodological and epistemological

proposition, legal responsibility is indeed a useful tool to deal with social
issues in which “risk” is marked rather than “danger”. When it comes to
epidemics and law, it is essential to adopt a clear legal, social and scientific
criteria to clarify whether society is marked by “risk” or by “danger” – and so
to establish whether the current legal regime of responsibility can be applied
or not. To this aim, the declaration of an epidemic by a globally competent
and legitimate institution, such as the WHO 45, following the IHR 46, shall be
used as a reference point to set the appropriate factual boundaries to which
legal responsibility must be applied. Thus it is possible to separate two very
distinctive moments of when contemporary responsibility might be considered
44. Nègre, supra footnote 42, p. 810.

45. Contrary to the refusal of the WHO’s request for an opinion on the legality of
nuclear weapons addressed to the International Court of Justice on the basis that the
question was not “within the scope of the activities” of the WHO (Legality of the Use
by a State of Nuclear Weapons in Armed Conflicts, ICJ Reports 1996, pp. 66, 81), the
theme of epidemics respects the principle of speciality (about the principle of speciality,
see Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory
Opinion, ICJ Reports 1996, pp. 66, 78, para. 25) and is under the competence of the
referred international organization (WHO Constitution, Articles 1 and 2, available at
https://www.who.int/governance/eb/who_constitution_en.pdf, last accessed 19 January
2021).
46. The current IHR was adopted in 2005 and entered into force in 2007. It is binding
on 196 States, plus Liechtenstein and the Holy See. Available at https://www.who.int/
ihr/legal_issues/states_parties/en/, last accessed 19 January 2021.

for jurists as a tool to face challenges and liability related to an epidemic: (a)
before the declaration of an epidemic outbreak, the regimes 47 of prevention 48
and precaution 49 might be considered a moderate 50 solution 51 to follow
legal standards based on lessons learned from previous epidemics in terms
of health regulation and best practice measures in times when a not-so-well-
known disease can be possibly spread worldwide; (b) after the declaration
of an epidemic outbreak, any kind of human activity, or interference, that
constitute, by any manner or degree, a violation of the human right to health or
an increase in the severity of the damage, shall be accountable by a domestic
or an international jurisdiction with the basis on the actual theories of legal
responsibility.
47. Both regimes are analyzed in an analogical manner since they have been
originally conceived in the field of international environmental law. Respecting the
specificities and peculiarities of each law field, international health law and international
environmental law share some similarities that make it possible to use such a method
of analysis, e.g. the transboundary dimension of the complex legal issues they deal
with.
48. “The preventive principle requires action to be taken at an early stage. It
is supported through a wide range of domestic and international measures directed
prohibiting harmful activities and enforcing compliance with standards”, see Crawford,
Brownlie’s Principles, supra footnote 6, p. 356. See also Draft Articles on the Prevention
of Transboundary Harm from Hazardous Activities, ILC Yearbook 2001, Vol. II, Part 2,
pp. 144-170); and the Trail Smelter case.
49. “ ‘Precaution’ is defined as a strategy for addressing risk”, see Jonathan B. Wiener,
“Precaution”, in Daniel Bodansky et al. (ed.), The Oxford Handbook of International
Environmental Law, Oxford, Oxford University Press, 2008, p. 598, available at https://
www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199552153.001.0001/
oxfordhb-9780199552153-e-25#oxfordhb-9780199552153-div1-143, last accessed
22 January 2021. The precautionary approach is supported by the Rio Declaration of
1992 (Art. 15) and can be interpreted to imply that precautionary regulation is justified
when there is no clear evidence about a particular risk scenario, when the risk itself is
uncertain or until the risk is disproved. See Patricia Birnie et al. (ed.), International Law
and the Environment, 3rd ed., Oxford, Oxford University Press, 2009, pp. 604-607. In
short, the precautionary principle “has become a meta-norm, intended to provide a
framework for certain political decisions regarding scientific and technological choices
when there is great scientific uncertainty and too little knowledge of the phenomena
to establish probable outcomes”, see Bernard Reber, “Governance: Precautionary
Principle and Pluralism”, International Social Science Journal, Vol. 64, No. 211/212
(2013), pp. 75-87, at p. 81.
50. “Moderate” is used in this context to criticize the gaps in the legal theory of
responsibility and of casual link to deal with situations whereby society is marked by
“danger” since both prevention and precaution regimes manage situations marked by
“risk”.
51. All States are under the obligation to implement measures to reduce the danger
of an outbreak. This obligation is the pragmatic application of Article 4 of the Draft
Articles on Responsibility of States for Internationally Wrongful Acts, which provided
for the obligation of States as a general principle. However, this obligation must not
be misunderstood as responsibility for the outbreak per se due to an exclusively, but
expected, natural cause. For more information, see Article 43 of the IHR; Article 12 (2)
(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
Article 16 of the Cartagena Protocol to the Convention on Biological Diversity.

Therefore, the role of global health governance 52 should not be under-

estimated since it has been the only way through which global health
issues 53, can be adequately addressed. The solution lies in the coo-
peration of all international actors concerned with the obligation to
safeguard a high level of health 54
, that is, it is not only referred to
the WHO , or States , or individuals
55 56 57
, considered independently.
All international subjects may be impacted to some degree by an epidemic 58,
52. “The underlying assumption is that the decision was issued by a body that
has competence to issue such decisions, so possible ultra vires concerns have been
ruled out”, see Eyal Benvenisti, “The Law of Global Governance”, Recueil des cours,
Vol. 368 (2014), pp. 47-279, at p. 145.
53. “Global governance institutions are indispensable for resolving co-ordination
and co-operation problems and for promoting global welfare”, see Benvenisti, supra
footnote 53, p. 17. Though the author supports the importance of global governance
institutions, he believes in their subservience to States’ interests, which clearly
contradicts the essence of having a legal personality detached from the States members
(see Reparation for injuries suffered in the service of the United Nations, Advisory
Opinion, ICJ Reports 1949, pp. 179 and 183). For another criticism of the role of global
health governance, see Matiangai Sirleaf, “Responsibility for Epidemics”, Texas Law
Review, Vol. 97 (2018-2019), p. 109.
54. A living Earth for living beings, in which man has a particular responsibility
insofar as his condition allows him to tear himself away from an immediate existence
in order to think, to choose himself and, beyond himself, to choose the world in which
he lives. See Zarka, supra footnote 27, p. 371.
55. Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities, Article 4.
56. “The definition of ‘responsibility’ operative in the context of the legal relations
among states is highly specific. It is not, as in common parlance, a synonym for ‘duty’
or ‘obligation’. Rather, ‘responsibility’ denotes specifically the juridical position
of an obligor-state following its breach of an international obligation”, Francisco
V. Garcia-Amador, “State Responsibility: Some New Problems”, Recueil des cours,
Vol. 94 (1958), p. 376. See also The “Rainbow Warrior” (France/New Zealand),
30 April 1990, 20 RIAA 215, 251 (para. 75); Gabčíkovo-Nagymaros Project (Hungary/
Slovakia), Judgment, ICJ Reports 1997, p. 7, 38-39 (paras. 46-48, esp. para. 47).
57. Alain Pellet, “Le droit international à l’aube du XXIe siècle (La société
internationale contemporaine – permanence et tendances nouvelles)”, Cursos Euro-
mediteraneos, Vol. 1 (1997), p. 83.
58. The ICJ affirmed that the question of internal ultra vires does not necessarily
affect the obligations of Member States as long as the intergovernmental organization
does not overstep its external vires (see Certain Expenses of the United Nations (Art.
17, para. 2 of the Charter), Advisory Opinion, ICJ Reports 1962, p. 151, 168 (20 July),
in Benvenisti, supra footnote 53, p. 150. In fact, international organizations have
enlarged the corpus juris of international law; have stopped the monopoly of State
concerning international legal personality, privileges and immunities; have permitted
to consider other forms of celebrating treaties; have changed their own normative
bodies in order to participate in international legal procedure; and have expanded the
international cooperation, see A. A. Cançado Trindade, “Contribuição das Organizações
Internacionais ao Desenvolvimento do Direito Internacional”, paper presented at the
OAS Inter-American Juridical Committee, Rio de Janeiro, 2005, pp. 10-11, available
at https://www.oas.org/es/sla/ddi/docs/publicaciones_digital_XXXII_curso_derecho_
internacional_2005_Antonio_Augusto_Cancado_Trindade.pdf, accessed 21 January
2021.

and, for this reason, they have the duty 59 and obligation to act coope-
ratively 60.
The context of an epidemic calls for an extension of the international
responsibility of States to other international subjects, assuming that
responsibility has become an attribution of international legal personality 61.
Damage is no longer a condition sine qua non to configure international
responsibility. In contemporary legal thinking, international responsibility
is comprehended as a mechanism to condemn breaches of legal obligations
committed by subjects of international law and to restore legality, a matter in
which the international community as a whole has a common interest 62 (the
idea of solidarity and “communitarianism”) 63, rather than to only compensate
a damage at international level.
59. In the case of the State, it is its duty to make appropriate amends following a
breach of an international obligation, see Clyde Eagleton, “The Responsibility of States
in International Law”, American Journal of International Law, Vol. 22 (1928), pp. 924-
925. The Permanent Court of Justice in the Chorzów Factory case stated that: “it is a
principle of international law that the breach of an engagement involves an obligation
to make reparation in an adequate form” (PCIJ, Chorzów Factory (Germ. v. Pol.),
Indemnity, Jurisdiction, 1927, Ser. A, No. 9 (Judgment of 26 July 1927), at 21; Whaling
in the Antarctic, Judgment, para. 144; Whaling in the Antarctic, Counter-Memorial
of Japan, para. 8.63 (“Japan accepts that, even in the absence of binding effect, there
is a duty on the part of the Contracting Governments to consider a recommendation
in good faith and, if requested, to explain their action or inaction”). Robert Ago, as
Special Rapporteur to the ILC, has concluded that in the literature there is a consensus
about the two elements that characterize state responsibility: “objective” (breach of an
obligation, in which, he believes, the concept of “injury” is included) and “subjective”
(State as actor) (R. Ago, Second Report on State Responsibility, ILC Yearbook 177, at
187, UN Doc. A/CN.4/233 (1970) ).
60. This argument is based on Jessup’s theory of “Transnational Law”, which asserts
that it is “all law which regulates actions or events that transcend national frontiers.
Both public and private international law are included, as are other rules which do not
wholly fit into such standard categories . . . transnational situations, then, may involve
individuals, corporations, states, organizations of states, or other groups”. See Philip
C. Jessup, Transnational Law, New Haven, CT, Yale University Press, 1956, pp. 2-
3. The idea of the right to health as a human right is enshrined in Article 25 of the
Universal Declaration of Human Rights; Article 12 of the ICESCR; CESCR General
Comment 14 on the Rights to the Highest Attainable Standard of Health (Art. 12); and
Arts. 4 (2) and 12 of the International Covenant on Civil and Political Rights.
61. Alain Pellet, “The Definition of Responsibility in International Law”, in
Crawford, Law of International Responsibility, supra footnote 42, pp. 6-15. Cf.
A. A. Cançado Trindade, International Law for Humankind, 2nd rev. ed., Leiden,
Martinus Nijhoff, 2013, pp. 165-180.
62. P.-M. Dupuy, “Responsabilité et légalité”, in La Société française pour le droit
international, La Responsabilité dans le système international, Paris, Pedone, 1991,
p. 263.
63. In this sense, responsibility may be applied in cases of complicity, where, for
example, a State is found to be complicit in the wrongful act of another, see Vladyslav
Lanovoy, Complicity and its Limits in the Law of International Responsibility, Series
Studies in International Law, Vol. 59, Oxford, Hart Publishing, 2016, p. 334. However,
by the idea of solidarity and cooperation between international subjects, this concept of

Furthermore, considering soft law as “nonbinding rules or instruments

that interpret or inform our understanding of binding legal rules or represent
promises that in turn create expectations about future conduct” 64, the IHR
regulations 65 cannot be considered as such 66 because Articles 21 and 22 of the
WHO Constitution clearly states the binding nature of the IHR on all WHO
Member States, albeit whether the legal status of Temporary Recommendations
issued following IHR procedures concerning public health emergencies of
international concern (PHEIC) lasts is unclear.
In practice, the debate over assessing State responsibility is centered around
the uncertainties surrounding Article 43, which restricts States Parties’ ability
to take “additional health measures” beyond the Temporary Recommendations
that “significantly interfere with international traffic”, such as entry restrictions.
In particular, the determination to take such measures must be based on
“scientific principles”, “available scientific evidence of a risk to human health”
and “any available specific guidance or advice from WHO” (Sec. 3.2. a, b, c),
and must “not be more restrictive of international traffic and not more invasive
or intrusive to persons than reasonably available alternatives” (Sec. 3.3). The
term “based on” could be interpreted as simply “consider” the WHO’s advice,
contrary to an interpretation of a “binding” aspect of the legal prescription: such
ambiguous meanings leave room for legal instability instead of determining
the State regime of responsibility. In addition, Article 3 of the IHR provides
that “[t]he implementation of these Regulations shall be with full respect for
the dignity, human rights and fundamental freedoms of persons”, and Article
32 similarly provides that “[i]n implementing health measures under these
Regulations, States Parties shall treat travelers with respect for their dignity,
human rights, and fundamental freedoms”.
It is important to remark that various provisions of Article 43 were
modeled on the Agreement on the Application of Sanitary and Phytosanitary
Measures 67, which has been interpreted by panels and the Appellate Body of
“complicity” has a broader sense, impact and practice rather than only being applied to
acts between States or between States and intergovernmental organizations.
64. Andrew T. Guzman and Timothy Meyer, “International Soft Law”, Journal of
Legal Analysis, Vol. 2, No. 1 (2010), p. 174.
65. For an opposite doctrinal position: “International health law is soft law composed
by norms characterized by their strictly technicality and immediate execution. Those
norms make international health law a ‘law of execution’ and they are formed by
functional standards. International health law would be, in general, an extension of
international economic law and of the international law of development, in particular”,
M. Bélanger, “Une nouvelle branche du droit international: Le droit international de la
santé”, Études internationales, Vol. 13, No. 4 (1982), pp. 611-632, available at https://
doi.org/10.7202/701420ar, last accessed 2 January 2021.
66. For a different opinion on the subject based on a different definition of soft law,
see Bélanger, supra footnote.
67. David P. Fidler, “From International Sanitary Conventions to Global Health
Security: The New International Health Regulations”, Chinese Journal of International
Law, Vol. 4, No. 2 (2005), pp. 325-392, at pp. 382-383.

the World Trade Organization (WTO); for example in respect of the definition
of “scientific evidence”, that it is “evidence gathered through scientific
methods”; that “scientific evidence may include evidence that a particular risk
may occur . . . as well as evidence that a particular requirement may reduce or
eliminate that risk” 68; and for the condition of an entry regulation by the State
be “based on risk assessment” 69.
Indeed, the PHEIC could play a key role in assigning responsibility by being
remodeled to include a flexible mechanism of responsibility with a similar but
adapted structure as the one observed, for example, in the Montreal Protocol
in international environmental law in order to implement the protective health
measures in epidemics successfully.
Some legal obligations in epidemics to which international subjects are
committed by international regulations can be outlined. In the pre-epidemic
stage, all international subjects shall implement and follow measures to
reducing the risk of an outbreak 70; seek collaboration with other States and
international organizations 71, specifically the WHO 72; and guarantee prepared-
ness to continuously increase knowledge and scientific capacity to deal with
potentially grave future epidemics. In this stage, legal mechanisms are secondary
and play an “observant” role, whereas political and economic mechanisms are
key to achieve those goals as tools by which the global community can go
from a “danger” back to a “risk” context, when legal mechanisms, notably the
institutions of international legal responsibility of States, are the protagonist.
During the epidemic stage, affected States shall ensure information disclo-
sure 73; implement emergency measures to avoid the spread of an epidemic –
this does not include, contrary to common belief, restrictions/bans for travel or
68. WTO Panel, Japan – Apples, para. 8.92.

69. WTO, Appellate Body, Australia – Salmon, paras. 137-138; WTO Panel,
Australia – Salmon, para. 8.52
70. Regarding specifically State obligation: see ILC Draft articles on Prevention of
Transboundary Harm from Hazardous Activities, with Commentaries, Article 5: “States
concerned shall take the necessary legislative, administrative or other action including
the establishment of suitable monitoring mechanisms to implement the provisions of
the present Articles”.
71. “Thus, by direct influence of the international organizations, the process of
formation of the norms of international Law became complex and multifaceted, in
the purpose of achieving a wide regulation which fulfilled the needs and aspirations
of the international community as a whole”, A. A. Cançado Trindade, Direito das
Organizações Internacionais, 3rd. ed., Belo Horizonte, Del Rey, 2003, pp. 724-737;
Cançado Trindade, supra footnote 62, p. 157. In the Voting Procedure case, Judge
Lauterpacht stated in his separate opinion: “A Resolution recommending to an Admi-
nistering State a specific course of action creates some legal obligation . . . The State
in question, while not bound to accept the recommendation, is bound to give it due
consideration in good faith” (Voting Procedure on Questions relating to Reports and
Petitions concerning the Territory of South West Africa, Separate Opinion of Judge
Lauterpacht, pp. 118-119).
72. WHO IHR Draft Article 10, para. 3.
73. Ibid., Article 6.

trade 74 – in accordance with the advice of the competent experts 75; and offer
assistance to affected States 76. In a new pre-epidemic stage – or a post-epidemic
stage, depending on the point of view – a review of conduct 77 undertaken
during the epidemic and information sharing is vital to providing guidance to
future similar events. In this stage, the State’s contemporary international legal
responsibility is undeniably fundamental to legally verify whether political
and economic activities undergone in the pre-epidemic and during-epidemic
stages were in conformity with the international obligations previously
agreed.
This taskforce against epidemics agrees with the theory of common concern
of humankind 78, which overcomes strictly inter-State relations and focuses
on humankind’s “needs and aspirations as a whole, encompassing present
and future generations” 79. This is the concrete application of recta ratio
that renders validity to international law through an objective perspective
and turns into reality the union of humankind based on a universal juridical
74. WHO, “Updated WHO Recommendations for International Traffic in Relation to

COVID-19 Outbreak”, 29 February 2020, available at https://www.who.int/news-room/
articles-detail/updated-who-recommendations-for-international-traffic-in-relation-to-
covid-19-outbreak, last accessed 10 February 2021. Some commentators, including the
head legal counsel of the WHO (2005-2016), have expressly taken the position that
many States adopting travel restrictions in response to Covid-19 are in violation of the
IHR: Roojin Habibi et al., “Do Not Violate the International Health Regulations During
the COVID-19 Outbreak”, The Lancet, Vol. 395, No. 10225, 13 February 2020, p. 664
(“In imposing travel restrictions against China during the current outbreak of 2019
novel coronavirus disease (COVID-19), many countries are violating the IHR”); see
also Benjamin Mason Meier, “Travel Restrictions Violate International Law”, Science,
Vol. 367, No. 6485, p. 1436. State practice over the last eight months, however, tells
another story. The reality is that the large majority of States in the world have imposed
entry restrictions in response to Covid-19. Some scholars have defended their legality;
see Caroline Foster, “Justified Border Closures Do Not Violate the International Health
Regulations 2005”, EJIL: Talk!, 11 June 2020; also Pedro A. Villarreal, “COVID-19
Symposium: ‘Can They Really Do That?’ States’ Obligations Under the International
Health Regulations in Light of COVID-19 (Part I)”, Opinio Juris, 31 March 2020.
Moreover, in the WHO’s April 2020 Strategy Update, it appeared to reverse its prior
view, as it listed as a “global strategic objective”: “Suppress community transmission
through context-appropriate infection prevention and control measures, population
level physical distancing measures, and appropriate and proportionate restrictions on
non-essential domestic and international travel” (WHO, COVID-19 Strategy Update,
April 2020, p. 5 (emphasis added) ). The result of all this is that there appears to be an
incongruity between the text of the IHR, which imposes rather stringent conditions on
travel restrictions, and State practice. This incongruity raises many general questions of
international law that are far from being properly answered.
75. WHO IHR Draft Articles 15-39. “Preventative measures” are included.
76. Article 12 of the ILC Articles on the Protection of Persons in the Event of
Disasters; WHO IHR Draft Article 44.
77. WHO IHR Draft Articles 50 to 53.
78. See B. Simma, “From Bilateralism to Community Interest in International Law”,
Recueil des Cours, Vol. 250 (1994), p. 289.
79. It includes the duty to share equitably the burdens of protection, as happens
similarly in environmental protection, see Cançado Trindade, supra footnote 62, p. 344.

conscience 80. Moreover, in the corpus juris of international health law, the

importance of the principle of humanity is self-evident and has its foundations
on the universal principle of respect for the dignity of the human person, or the
sense of humaneness 81 and a general responsibility for humanity 82.
In that sense, the IHRs and other relevant relative international legal
instruments realize this collective aspiration 83 in the form of legal obligations
to be pursued by the global community. Its non-compliance results in a breach
of international law and the necessity to assess the international responsibility
of claimed damages by international subjects. Despite the fact there is “no
action popularis in international law, it is accepted and established situations
in which States are given a right to act without any showing of individual
substantive interest as distinguished from the general interest” 84: epidemics
and violations of international legal obligations related to international health
law in epidemics look likely to be one of those situations where the global
community’s interest is involved and is fairly justiciable no matter whether
individual interests are present.
SECTION 4 CONCLUSION
From the epistemological and sociological approaches,

this study has showed how the legal theory of responsibility and the causal
link have been impacted by having society marked by “risk” or “danger”. It
was observed that responsibility is firstly based on cognitive prerequisites –
common social knowledge, capacity of decision-making and free will of the
agent making the decision – that are prerequisites to the establishment of a
legal regime of responsibility per se. Some concepts derived from the law
of responsibility showed a certain lack of practice, or pertinence, in the pre-
epidemic stages, for example the casual link, especially considering that the
complexity of determining the relevant legal cause from the causal chain is
hugely challenging to jurists.
Thus an epidemic caused by an exclusively, scientifically and socially
unrecognized, but imminent and expected, natural undesired event, followed
by social damages and disorder, cannot burden any international subject with
80. Ibid., p. 144.

81. See ibid., pp. 275-288.
82. Yves Charles Zarka, “Exposition de l’idée cosmopolitique. La responsabilité
pour l’humanité”, Archives de Philosophie, Vol. 75 (2012), pp. 375-393, available
at https://www.cairn.info/revue-archives-de-philosophie-2012-3-page-375.htm, last
accessed 25 January 2021.
83. “The obligation to cooperate has a key role to play in ensuring universal support
for the interests of humanity”, Nina H. B. Jørgensen, “The Obligation of Cooperation”,
in Crawford, Law of International Responsibility, supra footnote 42, p. 700.
84. The South West Africa case (Second Phase) (Ethiopia v. South Africa) (1996),
ICJ Reports, p. 6 at 388, Dissenting Opinion of Judge Jessup.

responsibility for its existence. However, complying with legal obligations and
executing policy responses to face epidemics needs up-to-date, flexible legal
mechanisms to assign responsibility and capture with accuracy the complexity
of epidemics in time and space, pertaining, for example, to transboundary and
diffuse damages, collective victims and State burden-sharing. These concerns
are continuously being worked on in the field of international environmental
law, from which international health law can draw inspiration, such as
the adoption of “non-compliance” procedures in treaties, agreements or
regulations regarding international health issues. Overall, in times of “danger”,
it was evidenced that the legal theory of responsibility and of casual link still
lacks operational mechanisms to manage liability and reparation in uncertain
times due to its inherent complexity in undesired events caused by natural
sources, since preventive and precautionary regimes have dealt mostly with
“risk” contexts.
In sum, the scope of the IHR regulations, and other relevant international
instruments, is to support the engagement of a new contemporary way of
thinking about international health law in an interdisciplinary, integrated
and multifaceted manner to achieve responses to legal gaps such as the ones
detected in this study. Moreover, through cooperation and solidarity between all
international subjects to observe obligations in the pre-epidemics and during-
pandemic stages, global governance plays a significant role in international
legal responsibility by delivering crucial guidance to support the overcoming
of complex legal situations and filling legal gaps during and after an epidemic.


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Reflections

The legal discussion about addressing State responsibility 1,

1. * PhD candidate at the University of Montreal. Master’s degree at University of

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responsibility” and “extracontractual responsibility” – figures of subjective

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It will be underlined that the present theories of international legal

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SECTION 2 COGNITIVE AND CONCEPTUAL PREREQUISITES

At a pre-epidemic stage, when human knowledge and tech-

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to bring to the Committee’s attention the conduct of another Member State.

IS THE CONTEMPORARY REGIME

Under the present methodological and epistemological

44. Nègre, supra footnote 42, p. 810.

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Therefore, the role of global health governance 52 should not be under-

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Furthermore, considering soft law as “nonbinding rules or instruments

28 oliveira GB C2021 covid.indd 633 21/07/2021 19:29

68. WTO Panel, Japan – Apples, para. 8.92.

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74. WHO, “Updated WHO Recommendations for International Traffic in Relation to

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conscience 80. Moreover, in the corpus juris of international health law, the

From the epistemological and sociological approaches,

80. Ibid., p. 144.

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SECTION 2 COGNITIVE AND CONCEPTUAL PREREQUISITES