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CHINA'S RESPONSIBILITY FOR THE COVID 19
PANDEMIC
Arranged by
Ewaldo Asirwadana, Ihsan Arif Prasetyo,Satya Bayu Prasetyo
International Program of Law and Sharia, Faculty of Law
Universitas Muhammadiyah Yogyakarta
Email: satya.bayu.law19@mail.umy.ac.id
Abstract
Several countries have demanded that China be responsible for China's failure to deal
with the spread of COVID-19, these demands and criticisms made by several countries
are due to the fact that COVID-19 which has spread throughout the world has an
impact on the world economic crisis and the health crisis in each country. This research
will discuss how China is responsible for the spread of covid-19 which has spread
throughout the world. This research is a normative study, because this research was
written using qualitative analysis, this research describes how China takes
responsibility for damages caused by COVID-19's spread, and how the world faces
Covid19 weather can China be sued for it. The results of this study indicate that
countries that are affected by China's non-disclosure condition require the approval of
the Chinese government and therefore China is exempted from any responsibility
regarding movement because of ideologyof authority immunity, the fundamental of
international customary law, with it a independent nation the state cannot be
prosecuted in advance of a court of another independent nation without any approval.
Keywords:Covid-19, China, International law
1
CHAPTER I
INTRODUCTION
A. Background
Nowadays, the world still continues to fight and to eradicate the severe global
pandemic. The saga of COVID-19 has always to be the trending headlines and hot topic
to be addressed. As the impact, almost every international communities had impacted by
this pandemic. The COVID-19 is already spread to the entire world and affected over
six million and leaving over the three hundred thousand people have died. The fatality
rate is still being increased and seems doesn't have significant-good move. Based on the
provided information, this pandemic has been occured in Wuhan, a city where million
people lived in the Hubei province of the People Republic of China. Because of the
problems that came from China, of course the international reaction to the handling of
COVID-19 by the PRC has shown dissatisfaction, the international community, of
course is asking China to take responsibility for the pandemic.1
Some countries such as the United States, India, UK and Nigeria consider that
China failed to take precautions to stop the spread of the virus globally, thus causing
COVID-19 to destroy the global economy as well as the health crisis in their region. In
this context, many countries, governments, and even NGOs claim that China should be
held accountable, and some countries even have plans to sue China. The question about
the responsibility of states under international law for pandemic is not arisen yet.
During the severe acute respiratory syndrome (SARS) pandemic, the responsibility of
1European Centre for Disease Prevention and Control, 2020 ”Event Background COVID-19,” COVID-
19.
2
the stateswas also debated, mainly due to the "reserved and uncooperative manner" in
who the Military Operations Center responded to this certain pandemic.2
President of the United State of America, Donald Trump, and his Secretary of
State, Mike Pompeo, have both call out for China’s responsibility without specifying
whether they imply political, economic or legal responsibility.3The same allegations
have been presented with respect to the Covid-19. China allegedly hiding reports of the
outbreak for a few weeks.4A period which would have been crucial in limiting the
spread of the virus as well as repairing both national and international readiness.
Because of this condition, the data on victims affected and died is very large, even to
overcome this problem the funds that have been spent are also very high. besides that,
Covid-19 has also worsened connections between the two most powerful countries in
the world, the US and China.
There is also a forward-looking constituent to state liability, which must be kept
in mind when considering international responsibility. Are search of state responsibility
can also show legal limits when they come to pandemics.5 which might encouragea
search for other accountability mechanisms. In this case China has violated the State
Responsibility for International Wrong Actions law and ihr because China has indeed
suppressed or stored information internally about the corona virus and was too late
tonotify the World Health Organization (WHO). 6 Therefore Under international law,
2JohnBellinger, ‘COVID-19 Lawsuits against China’, Moskov, Lawfare, 2020 on
https://www.lawfareblog.com/covid-19-lawsuits-against-chinaaccesed on 18 January 2021
3Katja Creutz, 2020,China’s Responsibility for COVID-19 Pandemic,Finish Intitute of International
Affair
4Associated Press, ‘China Didn’t Warn Public of Likely Pandemic for 6 Key Days’, 15 April 2020
https://apnews. com/68a9e1b91de4ffc166acd6012d82c2f9 accessed 18 January 2020.
5Matiangai Shirleaf, 2018,‘Responsibility for Epidemics 97, Texas Law Review 285–351.
6Muhammad Abdullah Azzam, 2020 , Pakar hukum internasional salahkan China atas kerugian akibat
Covid-19 on https://www.aa.com.tr/id/dunia/pakar-hukum-internasional-salahkan-china-atas-kerugian-
3
China is responsible for any damage it causes to other countries, whether through act
(intentionally) or negligence.7 But key questions are how to get reparations, and whether
China can be held accountable in court. This paper will discuss China's responsibility to
the pandemic by implementing state responsibility rules and whether China can be sued
for this problem. This theme was chosen because it is very interesting to discuss,
because the discussion on legal responsibility is indeed very important, so that it
becomes a reference for international stance about state behavior with respect to
infectious diseases.
B. Formulation of the Problem
How China takes responsibility for damages caused by COVID-19's spread, and how
the world faces Covid19 weather can China be sued for it ?
C. Purpose
To find out how China is responsible for the damage caused by the spread of COVID-
19.
D. Benefits
1. For the author
It is hoped that this research can become input in research related to how the world deal
with Covid19 (Impacts and Restrictions to Human Rights During COVID-19) as well as
akibat-covid-19/1812387 accesed on 21 Jan. 21
7Benedikta Miranti Tri Verdiana, 2020 , Bisakah Menggugat China ke Pengadilan Soal Pandemi Virus
Corona COVID-19?, https://www.liputan6.com/global/read/4241460/bisakah-menggugat-china-ke-
pengadilan-soal-pandemi-virus-corona-covid-19 accesed on 20 Jan 21
4
a source of information for further research and is expected to increase the knowledge
and competence of the author.
2. For the readers
The benefit of writing papers for readers is to become a source of reference and
information for people who read this paper so that they know and explore how is
China’s responsibility and can China be held accountable in court And The writing of
this paper also serves to find out between theory and real cases that occur in the field
synchronous or no, because in theory, what already exists is not always the same as the
case that happened.
A. The Typeof Research
The kind of writing used in this paper writing is normative type of legal
research.8 This paper contains reviews, summaries, and thought authors about several
library resources (articles, books, information from the Internet, etc.). A Paper
publication of a China responsibility for damages caused of COVID-19’s spread that
will be discussed in this paper.
The legal approach and the liquid case approach are done in this paper. This is
due to, because this paper uses the normative method of legal research. The legal
approach that refers to the law is the approach that makes several laws and regulations
as a reference in case resolution. Meanwhile, the case approach is an approach by
studying and studying cases that have occurred similar to the problems discussed and
studying the case in a deeper.
B. Technique of Collecting Data
8Soerjono Soekanto and Sri Mamudji, Penelitian Hukum Normatif: Suatu Tinjauan Singkat, Jakarta :
Raja Grafindo Persada, 2011.
5
The techniques used by group members or writers in data collection begin with
the search for a trusted journal on a China responsibility for damages caused of COVID-
19’s spread whether can China be liable for it and other topics. Afterwards, the author
collects relevant references. Soft-Copy edition references can be obtained from
accessible internet sources such as Google Scholar and other sources.
After a reference search is relevant to the required data, then the group members
understand and analyze the information data that has been gathered deeply. Afterwards,
the group members filter information that has been gathered from sources, journals and
references. Then, authors of the paper found the problem solving and introduction of the
paper content of the figure that will be discussed. In addition, group members also
evaluate or assess the correctness or eligibility of information that has been obtained
from sources for reference to the issues to be discussed and to check what needs to be
corrected. Systematically through evaluative, where the data was taken relating to the
issues to be researched.9 Sources used for reference in this paper are derived from
reliable sources, as well as from Google Scholar and other internet sources. The source
used as a referral in this paper is books, articles, journals, and other trusted references,
which can be used as references in this paper.10
CHAPTER II
RESULT AND DISCUSSION
A. The violation of China on international law Caused by Covid 19
International legal experts have blamed Chinese authorities for the losses caused
by the coronavirus that emerged in Wuhan, China at the end of 2019 which later turned
9Johnny Ibrahim, Teori & Metodologi Penelitian Hukum Normatif, Malang: Bayumedia Publishing,
2006.
10Mike McConville and Wing Hong Chui, Research Methods for Law, Edinburgh: Edinburgh University
Press, 2007.
6
into a global pandemic. Under international law, China is responsible for any damage
the Covid-19 pandemic has caused to other countries, for its actions or negligence
because China has suppressed or held internal information about the corona virus and
was too late to notify the World Health Organization (WHO).
China Satisfied Wrongful Act Pursuant to Articles 1, 2, 4, and 14 of the Draft
Article on State Responsibility for Internationally Wrong Actions (ARSIWA), 2001.
Norms of State Responsibility were codified under the Draft Article on State
Responsibility for Wrong Actions ("ARSIWA"). ARSIWA Article 1 holds the state
responsible for "internationally wrong doing". Article 2 of ARSIWA 2001, defines'
wrongdoing 'as acts that' act with the state 'and' constitute violation / breach of
international obligations'.11 Article 4 of the ARSIWA states that "these actions can be
aimed at or linked to the state if they are carried out through the legislative, judiciary, or
executive bodies. As noted below, once the virus spreads and is released, responsibility
flows from the Wuhan Authorities to the President of China. All of them are organs of
the Chinese Government and therefore their behavior is attributed to China as a State.
12Another fact can also be supported by the argument: "there are some assumptions and
accusations that China was covering up during the early stages of the Virus
Development". With regard to violations of international treaties, China against their
regime failed to comply with its due diligence on purpose by issuing a gag order that
did not reveal precise and timely details, forcing biotech companies to cease research.
11Pulung Widhi Hari Hananto, 2020,‘LEGAL OPINION: Does China Can Be Sued for The Global
Pandemic?’, Administrative Law & Governance Journal. Volume 3 Issue 2
12Bbc news, 2020,China Covid-19: How state media and censorship took on coronavirus,
https://www.bbc.com/news/world-asia-china-55355401 accesed on 20 Jan 2020
7
Due diligence is a principle of good governance that assesses whether a state has done
what is reasonably expected when responding to the danger or threat. The norms which
are integrated into various traditional legal principles and international customs apply,
among others, to the climate, human rights and the health of the world community.
China has not yet complied with the law, which imposes behavioral obligations that
require states to avoid, stop and / or resolve any number of internal or transboundary
hazards or dangers from them. In addition, China also violated Article 14 of ARSIWA
by refusing to exchange details with WHO quickly and transparently in accordance with
the IHR, there by extending the violation.13
Not only that China also violated China is violating Articles 6 and 7 of the
International Health Regulations, According to Article 6 of the IHR, a state party is
required to notify WHO of all incidents within its territory, which can be considered an
International Public Health Emergency ("PHEIC").14PHEIC is defined as 'a defined
outbreak, as provided for in this Regulation: (i) poses a public health risk to other
countries through international spread of disease and (ii) potentially requires a
coordinated international response.15 This should be done within 24 hours after the
public health information assessment. a country is bound to communicate 'timely,
accurate and detailed' information about public health emergencies once they have
notified WHO under paragraph (1). This information includes the number of cases and
deaths, the factors affecting their spread, and the support needed in response to an
13Abhishek Kumar, 2020, Covid-19: China’s Responsibility and Possible Legal Actions,
https://www.jurist.org/commentary/2020/05/abhishek-kumar-china-covid19-responsibility/accesed on 19
Jan 21
14Ibid., p.1
15Sabrina nadilla, 2020, KRISIS COVID-19: PERSPEKTIF HUKUM INTERNASIONAL TERHADAP
PANDEMI (Covid-19 Crisis: An International Law Perspective to Pandemics), Majalah Hukum Nasional,
Vol. 50 no.2 Tahun 2020
8
emergency. However, China failed to fulfill this. And under Article 7 of the IHR, with
regard to information sharing, a country is required to provide "all relevant public health
information" to WHO during 'unusual public health events'. Despite these provisions,
China refuses to share information about infection among health workers which is
essential for understanding patterns of transmission, despite repeated requests from
WHO, this information is also essential for formulating a 'preparedness plan' around the
world.
Whereas the customary international law on state responsibility states that states
that violate international law have "an obligation to make full reparation for injuries
caused by international wrongdoing". Turning to COVID-19, arguments can, and have
been, made that China is violating its IHR obligations by reporting disease incidents in
Wuhan to WHO when they occur.
As described above, we can conclude that China is also in violation of Article 6,
in which a country must notify all possible events of a "public health emergency of
international concern" within its territory within 24 hours and to notify WHO of all
relevant public health information under Article 7.
B.What losses were caused by other countries due to China's negligence on Covid
19
The outbreak of the Coronavirus (COVID-19) 2019 creates a unique ethical
dilemma because it raises the needs of people from all of life’s aspect, national and
world. The health expert are required to handle verdict about the distribution of scarce
resources that can cause a chaoticalso can influence a mental health. Everyone have to
face limitation on the liberty of action which are shutting down the entire economy in a
9
way to smoothen the curve of the pandemic.. In the future, there must be a inquiry about
when and how this is going to end?While the long-term involvement of a pandemic are
yet to be seen, so this is somebreakdown of some possibility tuition and handled ethical
quandary:
1. Restricted Assets
The pandemic reminds us of the gap which exists in some country without
universal health care, those who could provide health care and those who could not and
can ot be forced into poorness as an outcome. Effective distance is an effective way of
smoothing the curve and reducing the burden on the economy. In poor communities,
this simple step is impossible.
Unfortunately, we lived in a wolrdwhere human can pass away if the fee are very high.
This happens all the time in places such as additional assistance, road safety and
funding for orphan research. The financial constraints on our life-saving efforts are
always on the health care budget of every country. Ideal for transparency in budget
allocation involving all stakeholders, guided by ethical principles of utility and fairness.
Whereas the utility principle requires allocation of resources to maximize benefits and
minimize burdens, the principle of fairness requires attention to a fair distribution of
benefits and costs. Health equality is an ethical concept based on the principle of fair
distribution. While the same distribution of benefits and burdens may be considered fair,
it may be fair to give preference to weaker groups. There are no easy solutions for
resolving the potential tension between two things which is utility and equity, but a
balanced consideration between the two is important.
10
An pandemic absolutely need resource distributionverdict. We have to determine
who can get a special service if the people can not do. Decision making absolutely have
to be expanded to confirm that no one gets good or deficient care because of their social
level. The effort that we have to do to prevent unwanted distinction throughout the
pandemic. The Clinical frailty Scale score and a decision-making committee are two
ideal choices who could help those who decide to triage and access critical care.
Regardless of the tools used, they should be easy and checked systematically as an
pandemic develops. We all know that a lot of healthcare workershave died from
COVID-19 when carrying out their job. Medication of health workers that stake their
lives as vanguards is justified. This principle of reciprocal ethics implies that society has
an obligation to support people who harm their own health to protect the publicinterest.
This should not be restricted to healthcare providers only, but also to people who work
together with healthcare provider.
2. Psychological Problem
It is necessary to realize that the pandemic will got an impact on psychological
problem. Resource distribution verdict create conflict and various feelings for health
care workers and the common public. Moral coercion influence us and should be
appreciated and discussed honestly. Moral distress is a healthy sign, not a pathological
one. There will be opponents who are on guard when it comes to staking their own
lives, and perhaps their family lives while on duty in a contagious pandemic. The
compromise approach draws a balance between the needs of the patient and the
conscience of the health worker. Nevertheless, this method may not be useful
throughout pandemic. By using the principle of reciprocity above, conscientious
11
objection can be prevented by proposing unscrupulous opponents better encouragement
and compensation.
There shall be mental effects for people who are stereotyped as carriers of the
illness. Racism and discrimination may becoming cause of chronic fatigue. Racism and
discrimination is also could be a barrier to realizing the principle of equality, the basic
principle of human rights. The right to non-discrimination should remain at the heart of
all government responses. We should promote preventive steps to tackle wide-spread
stigmatization that has a negative impact on people’s health.
In order for all of us to keep mentally healthy because each and every work is
important. Have a conversation to the sufferer and everyone about this virus can helps
people to survive with it, especially if the circumstance still fluid and the people has lots
of hesitation.
3. Limitation On Freedom Of Action
Isolation, travel restriction warnings, also official actions tolower delivery such
as closure of schools and workplaces couldlead to sadness, flurry, fury, disappointment,
boredom, and relapses - again feelings of deficient information. Even though this
actions are approved to protect the public’s importance, but those actions can be burden
for people and indirectly can break the human rights of liberty of action. Various reports
show an increase in domestic violence and even alcohol abuse throughout the self-
isolation period. Children may become a risky, its because they are strenghtless. The
call for altruism can alleviate some of these problems. There must be social awareness
and strategies to offer support and protection to reduce these risks for children and
women.
12
In hospitals, self-isolation could change the death standards. There is no people
wants to die in isolation, in the middle of messand exhaustion of health workers.
Hospitalhasthe morals necessary to make sure theproper treatmentfor dying people by
incorporating their spiritual needs. The hospital also must ensure the modern technology
is available to allow their family to interact with the patient when they alone. In
addition, this method would provide emotional support and relieve anxiety. In these
difficult times, small gestures like that matter.
4. Economy Effects
When everyone focus on saving lives, an economic down turn are also a serious
problem. Accessing to health treatment shall increasingly become a problem for people
who experiencing economy crisis, mainly as the pandemic carries extrarisks for less
secure workers. A lot of companies suggest working from home with staff, yet for some
companies this is not analternative. In the end, an pandemic shall affect everyone in the
economy, and a global recession will follow. Different economic policy response would
be needed. Interest rate cuts likely to be potent responses. Yet, the effect is not just a
demand management issue, but another one that needs joint implementation of fiscal
and health policies
We need more public health investment in economic especially in some country where
health care systems are less developed and over population. Finally, we wanted to avoid
the afford ability dilemma when a cure was discovered.
And this bring to the conclusion that cross-cultural global values and ethical
standards are essential to the success of a global market economy. Such global ethics
must be based on concept of humanity and exchange and primary standards of non
13
violence, justice, honesty and partnership. The Ethical Global Economic Manifes to
reminds each of us of our unique role as entrepreneurs, investors, lenders, workers and
consumers in sharing responsibility for the human workforce in a global economy
5. Research Ethics
Intervention is needed to overcome this trouble. We have aduty to learn as
quickly as possible to develop the potent health, drug and vaccine policies. A lot of
experts have a duty to guarantee this can be done without delay. Protocols could be
developed to guaranteet hat ethical evaluation is expedited without ruin the basic
fundamental of generosity, respect for others and fairness. One preference is to allow for
an initial analysis of standard protocols for making investigaion, that could be quickly
applied and evaluated. International collaboration be able to help to guarantee this
studyis successful. We need international cooperation and data sharing so that clinical
trials can be conducted without delay. We need a license agreement that crosses
international borders.16
The UN report states that migrants, refugees and internally displaced persons are
particularly vulnerable to being infected with the corona virus. More than 131 countries
have closed borders and only 30 countries have exemptions for asylum seekers. Against
the backdrop of rising ethno-nationalism, populism, authoritarianism and the denial of
human rights in some countries, crises can provide a pretext for taking repressive
measures for purposes unrelated to the pandemic. This is unacceptable. In the context of
handling a pandemic, valid, reliable and continuously updated information regarding the
pandemic situation and its handling must be fulfilled and provided to the public without
16Erwin J. Khoo, Lessons learned from the COVID‐19 pandemic, Wiley Online Library, April 14th 2020,
pp. 1323-1325
14
exception. In law number 39 of 1999 concerning human rights, article 14 paragraphs 1
and 2 also contains rules regarding the right to obtain the necessary information and
communicate as well as to seek, obtain, store, possess and convey information by
utilizing all available means. Recognition of the right to convey and obtain opinions or
information is in accordance with the provisions of article 19 paragraph 2 of the
international covenant on civil and political rights which has been ratified by Indonesia
based on law number 12 of 2005 concerning ratification of the international covenant on
civil and political rights which has been ratified or ratified by law.17 The government
must be transparent, responsive and accountable in dealing with the corona virus
pandemic. The best response must be proportional to the protection of human rights and
the rule of law. The UN report said the coronavirus pandemic would create continuing
difficulties and increase tensions, which could provoke civil unrest. Corona virus
transmission does not look at status and position. Therefore, all levels of society must
receive fair and equitable handling. "In everything we do, never forget that the threat is
a virus, not a human being. the Commission for Missing Persons and Victims of Action
Violence monitors the fulfillment of state obligations in fulfilling, protecting and
respecting human rights, including respect for democratic principles in handling the
Covid-19 pandemic as a health emergency situation that has an impact on economic and
social issues, however, restrictions, or actions and policies taken must be proportional,
and do not sacrifice human rights and democracy which are protected and guaranteed by
the constitution Law as social control or social control is a form of implementation of
legal certainty, so that the laws and regulations that are implemented are properly
implemented by the authorities and law enforcers law must be able to overcome the
17Yordan Gunawan, 2021, Hukum Internasional: Sebuah Pendekatan Modern, Yogyakarta, LP3M
Universitas Muhammadiyah Yogyakarta, p. 12
15
imbalances that arise that can disrupt public order and productivity.18 To prevent the
Covid-19 outbreak, it is necessary to establish laws as a social controller. Legal
Protection for the Work Safety of Health Workers Due to the Covid-19 Pandemic. Legal
protection of dignity, as well as recognition of human rights owned by legal subjects
based on legal provisions from arbitrariness or as a collection of rules or rules that will
protect one thing from other things.19 Legal protection is an act or effort to protect the
community from arbitrary actions by a ruler that are not in accordance with the rule of
law, to create order and tranquility so as to enable humans to enjoy their dignity as
humans.20 In a pandemic situation, we see that handling covid-19 has an undesirable
impact on the situation and conditions of human rights. Based on our monitoring, a
number of steps taken by the state, from the executive level to the state apparatus, do
not make human rights an adequate basis for consideration in formulating policies or
taking action steps in the field. vulnerability makes the covid-19 pandemic an excuse to
eradicate human rights and threaten democracy .
C.China's Responsibility for COVID-19 Under ILC
The case of the Coronavirus outbreak in 2019 (COVID-19) spread quickly and
widely from its source center, namely in Wuhan, Hubei Province, China. Several special
measures were carried out after the discovery of several cases of pneumonia of
unknown origin and identification of the virus causing them. Studies that have been
18Zainauddin Ali, dalam bukunya Amran Saudi, Sosiologi Hukum, Penegakan, Realitas, Nilai
Moralitas Hukum, (Jakarta, Prenadamedia, Group, 2018), hlm 14.
19 Hadjon,P. M.(2007).Perlindungan Hukum Bagi rakyat Indonesia : Sebuah Studi Tentang Prinsip-
PrinsipnyaPenanganannya Oleh Pengadilan Dalam Lingkungan Peradilan Umum dan pembentukan
peradilan Administrasi, 2007, h. 25.
20Setiono, (2004). Rule Of Law (Supremasi Hukum), Surakarta, Magister Ilmu Hukum Program
Pascasarjana Universitas Sebelas Maret, , h. 3.
16
carried out by the government, such as increasing the level of diagnostic tests, clinical
management, immediate separation of suspected cases, confirmed cases and contacts,
and, in particular, mobility restrictions have been in place in the city of Wuhan since 23
January 2020. Then, travel restrictions have also been imposed in 14 other cities in
Hubei Province, and restrictions on movement have been partially imposed in many
cities across China. In Draft Articles on State Responsibility adopted by the
International Law Commission (ILC), (Draft Articles Responsibility of States for
Internationally Wrongful Acts, International Law Commis-sion, 2001), stated in article
1 that “Every internationally wrongful act of a State entails theinternational
responsibility of that State”. So, each acts or omissions prohibited by internationallaw
bring international responsibility for the country. ILC draft is not binding as an
instrumentof international law because it has not been established as a legal product.
However, the bindingstrength of the ILC Draft is not seen as an instrument of its shape,
but of their contents.21 ILC Draft can be used as an additional source and binding as
customary law International. And because of China's negligence it had a big impact on
the world and must be responsible for Internationally Wrongful Acts.22
Therefore The International Law Commission provides in the Draft Articles on
Responsibility of States for Internationally Wrongful Acts that reparation is required to
be made only with respect to “the injury from and ascribable to the wrongful act” and
not for any and all consequences “flowing from an intentionally wrongful act.”
21 Yordan Gunawan, 2014, Transboundry Haze Pollution in the Persepective of State Responsbility,
Jurnal Media Hukum, Vol 21, No.2, p.11
22 Moritz U. G. Kraemer, The effect of human mobility and control measures on the COVID-19
epidemic in China, Science, 01 May 2020, Vol. 368, pp. 493-497
17
The 2001 ILC Articles provide for the Responsibility of States for
Internationally Wrongful Acts23. It has been approved by the United Nations General
Assembly, which has given it the status of customary international law24. 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. 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’. Since China violated its treaty
obligations under the IHR, 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 . Similarly, China's
knowledge about the presence of the virus within its territory, coupled with its failure to
23“Responsibility of States for Internationally Wrongful Acts (2001).” United Nations International
Law Commission. https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf .
Accesed on 18 Jan 21
24Crawford, James. “Articles on Responsibility of States for Internationally Wrongful Acts (2001).”
United Nations Audiovisual Library of International Law. Accessed 21 Jan. 21.
https://legal.un.org/avl/ha/rsiwa/rsiwa.html.
18
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 4.25 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. So In case of countries’ failure to prepare for the
pandemic on time, the liability of China ought to be separated from that of the other
States.26 However, separating the damage that arose solely due to actions attributable to
China would be difficult. This is why States find it difficult to bring liability in cases of
global health outbreaks.
D. Can China be held responsible the COVID-19 Global Pandemic?
In the midst of this disarray, many conspiracy theories are doing rounds. The
origin of the virus is widely considered to be Wuhan, China. Some claim that the virus
25“China didn't warn public of likely pandemic for 6 key days.” CNBC. April 15, 2020. Accessed 21
Jan. 21. https://www.cnbc.com/2020/04/15/china-didnt-warn-public-of-likely-pandemic-for-6-key-
days.html.
26Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001.
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf accessed 18 Jan 21
19
originated from a lab in China and that the pandemic is a Chinese attempt to unleash
bioweapons. In fact, a class-action suit has been filed in the USA seeking US$20 trillion
from China for the “creation and release, accidental or otherwise, of the virus known as
COVID-19 by China and its agencies”. The petition claims that China unleashed the
Coronavirus as a “biological weapon in violation of China’s agreements under
international law.27
Several countries insist that China must assume international legal responsibility
for its alleged role in failing to contain the COVID-19 pandemic in its early weeks.
Proposed options for imposing accountability include initiating an investigation into
China, authorizing the President to impose sanctions on COVID19, reforming World
Health Organization (WHO) regulations, and narrowing China's immunity to foreign
sovereignty so that it can face litigation in court. In addition, several countries have sued
China in international forums for the harm arising from the spread of COVID-19. some
argue that China bears legal responsibility for violating the 2005 International Health
Regulations (IHR (2005)) promulgated by the World Health Assembly, the governing
body for WHO. Critics of China often focus on Articles 6 and 7 of the IHR (2005),
which oblige WHO member states to notify and share information with WHO about
"public health emergencies of international concern". If China had complied more fully
with these regulations, its critics argue, COVID-19 would be better controlled and result
in fewer cases. But it is not easy to sue China to the international court.But
Responsibility might potentially lie under the International Health Regulations (IHR).
Article 6 of the IHR, in the interest of preventing domestic public health emergencies
27viti bansal, Can China be held liable for the COVID-19 Global Pandemic?, Camridge Intertional Law
Journal,2020. http://cilj.co.uk/2020/08/30/can-china-be-held-liable-for-the-covid-19-global-pandemic/
accessed on 18 January 2021
20
from becoming international problems, requires World Health Organisation (WHO)
member States to notify the WHO of “events that may constitute a public health
emergency of international concern within its territory”. China’s delay in reporting this
pandemic is violatethe obligation based onthe IHR and China could possibly be held
liable for the same in the international regime. Nevertheless, there is an evident legal
lacuna to validly determine such a dispute. No relevant legal instrument or precedent
elucidates on what constitutes as delay sufficient to attract the provisions of Article 6.
Further, there is no threshold laid down, for the events to be of nature that necessitates
immediate reporting to the WHO.A study by the UK’s University of South Hampton
indicated that had Chinese authorities acted three weeks earlier than they did, the
geographic proliferation of the virus would have been suggestively smaller, and the
number of cases would have been reduced by 95 percent.
An action may be brought before the International Court of Justice (ICJ) by
States affected by the Chinese non-disclosure, in the capacity of injured States.
However, difficulty arises with respect to jurisdiction, as it would necessitate consent of
the Chinese government therefore China was relieved of any responsibility with respect
to class-action because of the doctrine of sovereign immunity, a principle of customary
international law, by which one sovereign state cannot be prosecuted before the courts
of another sovereign state without consent. But such non-obligation is not automatic or
absolute.
CHAPTER III
CONCLUSION
The International Law Commission stipulates in the Draft Article on State
Responsibility for Internationally Wrong Actions that reparation should be made only in
respect of "injuries which may result from an act. wrong ", not for any consequence"
21
that comes from a will. In other words "If the country fails to prepare for the pandemic
in a timely manner, China's responsibilities must be separated from the obligations of
other countries. However, separating the damage incurred solely due to actions caused
by China would be difficult. This is why countries find it difficult to take responsibility
for the case of a global health outbreak because an action can be brought to the
International Court of Justice (ICJ) by countries affected by China's non-disclosure on
the condition that it requires approval from the Chinese government therefore China is
exempt from any responsibility. also in connection with class action because of the
doctrine of sovereign immunity, a principle of customary international law, by which
one country is sovereign. the state cannot be prosecuted before a court of another
sovereign state without consent.
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