Assessing China's State Responsibility for COVID-19

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By Akshita Tiwary
Akshita Tiwary is a 3rd year law student at Government Law College, Mumbai, India. She serves as an Assistant Editor for JURIST, University of Pittsburgh, and is keenly interested in international law, human rights and constitutional law. She may be reached at akshitatiwary@gmail.com. 

The Covid-19 pandemic continues to disrupt lives all over the world. Millions of people have died and the global economy is witnessing a severe recession due to the imposition of lockdowns across nations [1,2]. Little did anyone expect that a virus in Wuhan would culminate into a pandemic of such magnitude. Nonetheless, it cannot be denied that China’s delay in reporting the virus to the World Health Organisation (WHO) and its initial downplay of its severity  lead to a deferred response worldwide [3]. This resulted in the virus taking the shape of a global pandemic due to increased spread. In light of such negligence, China can be held liable under the International Law Commission’s (ILC) Articles on State Responsibility for the spread of Covid-19. 

VIOLATIONS UNDER THE INTERNATIONAL HEALTH REGULATIONS (2005)
The International Health Regulations (IHR) is an international agreement between 196 nations, including China, to work collectively towards global health security [4,5].  Under the IHR, States parties are required to detect, assess and report public health events to WHO [6].  Articles 6 and 7 of the IHR specify that any public health emergency of international concern (PHEIC) has to be reported to the WHO within 24 hours of assessment. What may constitute a PHEIC must be determined in accordance with Annex 2 of the IHR. In keeping with its commitments under the IHR, China should have informed WHO about the origin of the novel coronavirus in Wuhan because it was an unexpected and unusual public health event, as given in Article 7. Instead of reporting the virus to WHO in a timely fashion, China concealed information about the virus and even suppressed whistleblowers [7].  Had the Chinese authorities not delayed informing the WHO about the existence of the virus, collective international efforts to monitor and control its spread could have prevented Covid-19 from proliferating to 188 countries [8]. China should have learned from its past experience of SARS 2003, an epidemic that originated in China and spread to other countries because of China’s initial concealment of the scale of the outbreak [9]. The IHR (2005) itself came into being to coordinate international response in the aftermath of SARS 2003. Since the IHR accounts for the inception of novel cases like the coronavirus, China ought to have exercised due diligence and precaution since the beginning in reporting the virus to WHO. By failing to do this, China violated its international obligations under the IHR. 

VIOLATION OF THE RIGHT TO HEALTH
Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right to health [10]. Article 12(2)(c) of the ICESCR imposes an obligation upon State Parties for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.” China, being a State party to the ICESCR, has an international duty to protect the right to health of its own citizens [11]. Additionally, General Comment No. 14 on right to health specifies that “to comply with its international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries” [12]. This reasonably imposes an international obligation upon States parties to protect the right to health in other nations, making it an erga omnes obligation [13].  There can be no doubt that the Covid-19 pandemic has violated the right to health of millions of people globally. As per Article 12 of the ICESCR, China has failed to protect this right for the affected persons. Moreover, the General Comment No. 14 also emphasizes that “violations of the right to health can also occur through the omission of States to take necessary measures arising from legal obligations.” The legal obligation, in this case, was China’s duty to report the virus to WHO on time under the IHR. As a result of its delayed reporting, other nations could not detect the virus quickly, and it ultimately violated the right to health of people. This adequately portrays China’s contravention of the international obligations incumbent upon it. 

CHINA’S STATE RESPONSIBILITY UNDER THE ILC ARTICLES
The 2001 ILC Articles provide for the Responsibility of States for Internationally Wrongful Acts [14]. It has been approved by the United Nations General Assembly, which has given it the status of customary international law [15]. Even the International Court of Justice (ICJ) has recognised the widespread application of these Articles through several judgements. China’s responsibility for the Covid-19 situation can be assessed in accordance with the provisions of these Articles.  As per the ILC commentary on Article 1, a state commits an internationally wrongful act when it violates its treaty obligations [16]. In its advisory opinion on the Interpretation of Peace Treaties (Second Phase), the ICJ has upheld that ‘refusal to fulfil a treaty obligation involves the international responsibility of that state’ [17]. Both the IHR and ICESCR are treaties according to Article 2(1)(a) of the Vienna Convention on the Law of Treaties [18]. Since China violated its treaty obligations under the IHR and ICESCR, it becomes liable for its internationally wrongful acts under Article 1 of State Responsibility. Article 2 specifies the elements of an internationally wrongful act, which may consist of an action or omission. Since the origins of the coronavirus can be traced to China, China’s failure to inform the WHO on time about the virus’s occurrence breached its international obligations and can be attributed to the state under international law. Here, an analogy can be drawn with the Corfu Channel case, wherein the ICJ ruled that despite having knowledge about the presence of mines within its territorial waters, Albania’s failure to warn third states of such presence constituted a sufficient basis to entail its state responsibility [19]. Similarly, China’s knowledge about the presence of the virus within its territory, coupled with its failure to inform WHO and third states about the same, entails its international responsibility under Article 2.  The internationally wrongful conduct of any state organ can be attributed to the state under Article 4. Since Chinese authorities themselves suppressed whistleblowers and hid critical information in the initial stages which ultimately worsened the spread of the virus globally, China can be held liable for the wrongful conduct of its state organs according to Article 4 [20].  In keeping with Article 14(3), the breach of an international obligation occurs over the entire period that the event is in existence. The ILC commentary mentions that a state should exercise all reasonably necessary measures to prevent the occurrence of a given event. Even though China could not have prevented the origin of the virus, it could have prevented it from culminating into a pandemic by reporting on time. Hence, China’s breach extended over the entire period during which it had knowledge of the virus within its territory, and yet it did not report this to WHO.

CONCLUSION
Any injured state under ILC Article 42 may claim that with due reporting and sharing of information, China, along with the international community, could have taken proper precautions and restricted the virus from spreading globally. Therefore, it is only reasonable to hold China responsible for its omissions concerning Covid-19 according to the ILC Articles on State Responsibility. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

REFERENCES

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