State Responsibility under International Law during a Pandemic by Dr Thanapat Chatinakrob

Background

        After the first report of the COVID-19 by China on 31 December 2019, the pandemic has been expanded into several countries. More deaths have been found since then.

The World Health Organisation (WHO) has played a crucial role in dealing with this pandemic. WHO is a specialized agency of the UN in securing international public health. It was established in 1948. This organization aims to ensure universal health coverage, protect people from health emergencies and provide better health and well-being. There is also an Emergency Committee on novel coronavirus. On 30 January 2020, the Committee announced the COVID-19 pandemic as ‘Public Health Emergency of International Concern (PHEIC)’ and released several recommendations to tackle this pandemic.

International Health Regulations (IHR) is an international agreement of WHO members aiming to protect and control diseases that might impact international travel as well as international trade. Article 12(4) states that in determining whether an event constitutes a public health emergency of international concern, the Director-General shall consider (a) information provided by the State Party (i.e. the report by China on 31 December 2019) (b) the decision instrument contained in Annex 2 (c) the advice of the Emergency Committee (d) scientific principles as well as scientific evidence and other relevant information and; (e) an assessment of the risk to human health of risk of international spread of disease and the risk of interference with international traffic. There are many requirements that the Committee must concern before announcing a pandemic as PHEIC. This could be one of the reasons for the delayed process.

PHEIC Recommendations are stated in Articles 43 and 44 of IHR. Article 43 concerns additional health measures such as the intervention of international travel. However, a state shall report to the WHO within 48 hours. Article 44 relates to collaboration and assistance among the member state of the WHO in assisting and investigating the diseases. This regulation is a positive measure to promote international cooperation.

For non-member states of WHO, they cannot receive the information directly from the WHO. For instance, Taiwan has to wait for the Chinese authority or from unofficial sources with might affect the COVID-19 response.

State Responsibility

According to Article 2 of Responsibility of States for Internationally Wrongful Acts, there is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.

ILC’s Articles on State responsibility (ASR) also apply to conduct and breach by international organisations. These basic principles of international responsibility are applicable to conduct and breach in relation to COVID-19 by States and international organisations in different specialist fields of international law. Under customary law, both state and international organisations responsibility will be attributable to the respective actors.

Referring to the Corfu Channel case (1949), the International Court of Justice decided that the mines could not have been laid without the Albanian government’s knowledge. It noted that it is every State’s obligation not to allow knowing its territory to be used for acts contrary to the rights of other states. Therefore, Albania bore international responsibility for the damage suffered.

To prevent the avoidance of responsibility for a violation of international law as a result of a state’s international structures of governance. According to Article 3 of the ASR, the state cannot invoke its national law to avoid international law. Article 7 of the ASR stated that the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

Referring to the Claire Claim case (1929), the French-Mexican Claims Commission decided that international responsibility arose because the officers had acted under cover of their status as officers and used means placed at their disposal on account of that status.

To conclude, state responsibility under the ASR must be attributable to the state (Article 2(b)). Additionally, the act/omission must be committed by a state official (Article 7) or has been directed/controlled by states officials (Article 8). If there is no defence applicable to the case, the state responsibility arises.

Modern international law conceptualises wrongful acts as the basis for international responsibility, which also includes rules on the content of responsibility such as compensation. Several primary rules may provide for obligations analogous to reparation. Custom imposes an obligation on states to make full reparation caused by the wrongful act. In COVID-19 claims, that legal standard has to be weighed by reference to the long chains of events, with many acts and omissions by various actors standing between the wrongful act and injury.

International Health Regulations (IHR) obligations is a multinational agreement, legally binding on 196 state parties. IHR defines countries rights and obligations such as information sharing obligations (Articles 6). For example, China follows this obligation by submitting a report to WHO regarding the COVID-19. Additionally, the IHR also mentions about roles and responsibilities of the WHO. For instance, Article 1 concerns the duty to declare the PHIEC.

State Defences: Force Majeure

Article 23 of ASR concerns force majeure which is quite often invoked as a ground for precluding the wrongfulness of an act of a state. It involves a situation where the state in question is in effect compelled to act in a manner not in conformity with the requirement of an international obligation incumbent upon it.

In order to be considered as force majeure, it must fulfil five conditions under Article 23. First, COVID-19 could be considered as an unforeseen event. However, it is only an unforeseen event only around the first year. In the following years, it was foreseeable. Second, the trigger event must be beyond the control of the state. Similar to the first condition, in the following years, the state could no longer claim that COVID-19 is beyond the control of the state. Third, the triggering event mush causes a material impossibility to perform an international obligation. It is possible for states to continue to run as usual. Fourth, the state must not have contributed to the situation of force majeure. The state must be done in good faith. It relates to several issues, including lack of funding, slow reactions in preventing the spread of the disease. Fifth, the state must not assume the risk of the situation. Consequently, it may not be possible for the state to make a claim regarding force majeure because it was only a voluntary measure.

State Defences: State Necessity

Article 25 of ASR concerns state necessity. Necessity is used to denote those exceptional cases where the only way a state can safeguard an essential interest threatened by a grave and imminent period is, for the time being, not to perform some other international obligation for lesser weight or urgency.

        In order to be considered as a state necessity, it must fulfil four conditions under Article 25. First, the grave and imminent peril are understood as risk and harm. The COVID-19 would appear to meet this requirement. Second, the peril must threaten an essential interest. The outbreak is considered as PHIEIC which poses a serious threat to health and lives around the world. Third, the act must not seriously impair an essential interest of another state. Depending on human rights systems in each country so assessed independently. Fourth, the act must be the only way to protect the essential interest from harm at the time. COVID-19 may not meet this condition because there could be several levels of measures to deal with these issues such as travel ban, vaccines, or social distancing measures. Therefore, it could be hard to considered COVID-19 as a state necessity.

State Defences: Distress

Article 24 of ASR concerns distress. There are five requirements for the situation to be considered.

First, it should be a threat to life. COVID-19 is a clear threat to life. Second, it should show a special relationship between the individuals in question and the state organ adopting the measure. For COVID-19, only the central government has the authority to put in place measures of containment in these types of emergencies. For instance, in Thailand, there is a central government administrative organisation dealing with COVID-19. Third, there was no other reasonable way to deal with the threat. For example, the social-distancing measure could be the reasonable measure for the COVID-19 situation. Fourth, the state did not contribute to the situation. The priority should be given to necessary life-saving measures. Fifth, measures were proportionate. This could be the most successful case. There might be some difficulty and it has to be done on a case-by-case basis.

Possibility of lawsuits

Article 43 of the IHR limits the measure state can implement when addressing public health risk to those based on scientific principles and data, commensurate with risks involved and anchored in human rights. There are some examples of measures that might violate the IHR. First, travel restrictions are not based on scientific data or WHO guidelines (violates Article 43(2) of the IHR). Second, states fail to comply with Article 43(1)(5) which requires the measures to be no more restrictive than reasonably available alternatives. Third, certain measures violate the principle under Article 3 by being discriminatory. For example, many countries impose a travel ban for travellers from specific countries. States often fail to comply with the requirement of Article 43(3) and (5) that establish a legal requirement to promptly report the imposed restrictions to the WHO.

It is noted that an alleged China’s violate to Articles 6 and 7 of the IHR, which entrust states with the duty to notify the WHO in a timely manner of all events which may constitute a PHIELC within its territory and provide to the whom all relevant public health information could constitute the ground for bringing claims against China.

When examining the issue of China’s obligation to compensate for the losses incurred by other states, the reference is made to the problems with the establishment of a causal link between the internationally wrongful act and the injury from and ascribable to such act. As such, dispute settlement in accordance with the IHR requires recourses to a two-step mechanism implemented in consecutive states. First, the state parties concerns shall seek to settle the dispute through negotiation or any other peaceful means. However, it could be difficult to do that under the current circumstance. Second, if the dispute is not settled, the state parties concerned may refer the dispute to Director-General upon mutual agreement. However, it seems to be very unlikely in the case of China.

There were several class-action lawsuits have been filed against the Chinese government in US courts. The lawsuits are concerned with COVID-19 related losses, death, and injuries. It is hard to prove because there is no basis for jurisdiction in a US court. There is also the state immunity principle which means that it is not possible to sue a state at the level of a domestic court. There are also jurists who believe that China has committed an internationally wrongful act by failing to report to the WHO timely about the COVID-19 outbreak.

Attempts are being made to prove that the ICJ has jurisdiction over disputes under Article 75 of the WHO Constitution. However, it is hard to bring China to the ICJ. Chinese government tend not to accept the jurisdiction of the ICJ. ICJ has another function called the advisory jurisdiction. Even though an advisory option from the ICJ is not legally binding, it could help set a precedent for the international community which would help to regulate the conduct of states.

Other relevant international law

International Human Rights law guarantees everyone the right to the highest attainable standard of health and obligations governments to take steps to prevent threats to public health and to prevent medical care to those who need it. For example, the laws related to the right to life are UDHR Article 3, ICCPR Article 6 and General Commitment NO.36 of Human Rights Committee. The law related to the right to health is CESCR General Comment NO.14, ICESCE Article 12 and UDHR Article 25. Additionally, the application of measures combating the COVID-19 should not violate the rights to privacy, freedom from discrimination, freedom of information and freedom of expression.

Another international law concerns International Humanitarian law. It is necessary to be concerned that territories affected by armed conflicts are particularly vulnerable to the spread of the disease There is the need for humanitarian reservations in national laws. The government should also take care of people living in the refugee camps.

International criminal law is also interesting to look at. If the disease is highly communicable such infection could easily become widespread. The issues of crime against humanity should be concerned. There are acts that are committed as a part of a widespread or systematic attack directed against a civilian population with knowledge of the attack.

International investment law could also relate to the pandemic. After the end of the pandemic, some measures taken by the state in response to COVID-19 might be challenged in investment arbitration.

WTO law could also be implemented during the pandemic. For example, states may invoke export restrictions on medicines and medical products. States may refer to some provisions under the GATT including the allowance of export prohibition or restrictions temporarily applied to prevent or relieve the critical shortage of essential products.

Intellectual Property law could also relate to the situation. Under the TRIPS agreement, there is the need to strike a balance between the right to access medical treatment and state obligations to protect intellectual property.

Law of the sea and maritime law should also be considered. During the pandemic, customs administration and port states authorities are strongly urged to establish a coordinated and proactive approach to ensure the continued facilitation of the global supply chain.