COVID 19: HOW INTERNATIONAL LAW MATTERS?

Covid-19 can be said to be the biggest outbreak of the 21^st century. It has not only changed the lifestyle of the world, but also drastically affected the economy, finance, investment and trade among other countries. Covid-19, rumoured to have originated from Wuhan, has spread throughout the world. It is not that the world has not faced any outbreak before. However, no previous disease overwhelmed the medical system, as we are witnessing with coronavirus. This outbreak has even shattered those countries, where the healthcare facilities were considered to be the best in the world. In this article, I will discuss the implications of Covid-19 on international law.

Pandemic or Epidemic?

One of the foremost criticisms of World Health Organization has been its late response in declaring this outbreak as a Pandemic. Let’s analyze the difference between Pandemic, epidemic and a mere outbreak. The term outbreak can be relied on to a situation where a disease infects a lot of people within a smaller area in a short period of time like for e.g. Measles in US over the past years. This disease, often are controlled by the vaccination or other medical care. Epidemics, as defined by the World Health Organization, refer to the occurrence in a community or region of cases of an illness, clearly above normal expectancy. As per this definition, Covid- 19 can be termed as Epidemic in China, South Korea, Italy etc., where it was, first diagnosed. ‘Pandemic’ is much scarier, as it covers all those diseases occurring worldwide and crossing international boundaries. Even when this disease has reached more than 80 countries, World Health Organization was adamant on not terming it as Pandemic. On 11^th March, 2020 World Health Organization declared Covid-19 as pandemic when the number of cases outside China increased 13- fold and number of countries with cases increased three fold. Indeed, there was a delay on the part of World Health Organization, to declare it as Pandemic.

Obligation to Other States

This is one of the most important aspects of International Law obligations. If there is any sort of public health emergency, the state being the subject of international law, is duty bound to provide timely and sufficiently detailed information to the world at large. This has also been stated under Article 6 of International Health Regulations, where World Health Organization mandates to provide for information of any of such health emergencies that can have serious implications over the world healthcare

Before going further on the obligation towards other states, let us first get a brief analysis of the International Health Regulation (hereinafter, IHR). IHR is a legally binding instrument of international law which was entered into in 2007. The website of the World Health Organization states that, its purpose is to prevent, protect against, control and provide a public health response to international spread of disease in ways that are commensurate with and restricted to public health risks and which avoid unnecessary interference with international traffic and trade.

This is crucial in terms of combating the spread of disease. The detailed information about the disease can be very useful in combating the spread and thereby, saving lives of millions of people. Not sharing the information can also have serious implications over the state. If we go through the Draft Article on Responsibility of States for Internationally Wrongful Act, Article 2 clearly states that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and it constitutes a breach of an international obligation of State. Regarding the clause of constituting a breach of an international obligation, we refer back to IHR. In IHR, if we read Article 6 (already discussed above) and Article 10 together, it mandates the World Health Organization to seek verification from states of unofficial reports of pathogenic microorganisms, under which States are bound to provide this information. Hence if any state breaches this international obligation, they can be held liable under the abovementioned laws.

Will China be held liable?

Most of the blame is being attributed to China. Prima facie, it can be easily concluded that China, was indeed wrong at many fronts. China did breach the IHR by intentionally withholding critical information about this virus. In addition, China also rejected the offer of the World Health Organization of epidemic investigative assistance despite pressure from the global community. It was China’s withholding of critical information that made World Health Organization believe that human to human transmission of this deadly disease was not possible.

Leaving the question of China being liable or not, to ICJ, we should move onto the most important principle of international law in this area, i.e. No Harm Principle and Due Diligence.

No Harm Principle and Due Diligence

In the law of torts, the concept of vicarious liability as well as strict liability has been widely studied and discussed. More or less, the similar principle is being applied here when we talk of No Harm and Due Diligence Principles. The No Harm Principle was well established in the case of Albama Trail Smelter, Nuclear Weapons Case. The International Law Commission has expatiated on this through the 2001 Draft Article on Prevention of Transboundary Harm, thereby making the law comprehensible. Article 2 of the Draft Article, read with the Commentary specified, requires the State to prevent, stop and redress significant transboundary harm to other states, which are originating under that State jurisdiction. Also a reading of the general commentary, it requires the State to at least work to minimize the risk. Article 3 and 4, talks about the types of duties which the State must carry, such as monitoring, supervision, assessment, legislation, administrative policies, regulation and enforcement.

Due Diligence comes during the assessment of the conduct of the state. As the name suggests, it is the assessment of the State’s conduct over harm. As per the No Harm Principle, it is the State which has to work to minimize the risk and as per the Due Diligence, it has to be seen that State’s conduct was reasonably expected of it while responding to harm or danger. These standards are not defined anywhere but they are series of rules of conventional and customary international law applying generally to inter-state relations. The standard for due diligence is flexible, varying according to State capabilities and also to severity of the situation.

For China to be responsible for this, it has to be proved under the No harm principle, whether it did sufficient duty to at least prevent the harm, the answer to which in the negative. China was unable to prevent its harm or at least work to minimize it, so that it does not cross the boundary of China. No question of due- diligence comes, when even the first principle is not followed. Countries can be held liable for activities that happen within their national boundaries but have an impact on other countries (Gabcikovo- Nagymaros).

Conclusion and Impact on Other Sectors

Covid-19 has nearly affected all the sectors of economy be it education, the stock market, oil, civil aviation or any other. Nearly all the sectors are seeing some or the other constraint. Constraints on entry to a country due to closure of border may certainly be a violation of one or the other obligatory convention. On the other hand these all actions are totally justified under the exemption clause of the specified treaty. This hard time requires patience, perseverance and co-operation among the member of states so that we can get out of this time and international law can thrive once again. 

ABOUT THE AUTHOR

Saransh Chaturvedi is pursuing LL.M from Rajiv Gandhi School of Intellectual Property, IIT Kharagpur,  His areas of interest is Intellectual Property Law, more particularly in Patents and Copyrights.

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