CAN THE STATES BE HELD LIABLE UNDER INTERNATIONAL LAW FOR CORONAVIRUS EPIDEMIC? 23 April 2020

The world is currently suffering from an unexpected health crisis due to the spread of the Covid-19 outbreak, which was emerged for the first time in December 2019 and said to be originated from the wet markets of China’s Wuhan city.

The World Health Organization classified the new type of coronavirus as pandemic as of the date of 12.03.2020. Within four months from the beginning of the outbreak, the Covid-19 has been affecting 210 countries. As of the date this Article, the number of the reported coronavirus cases have reached to more than 2,6 million while the reported deaths reaching over 184,000.[1]

As the effects of the epidemic accelerate in the whole world in terms of both public health and global economy, the source of the virus has caused controversy between the countries. While a part of the world criticizes China for not taking the necessary precautionary measures in the wet markets, hiding the extent of the coronavirus and not informing the international community in a timely manner due to political and economic concerns[2]; the other part has doubts that the virus might have been created in a lab by one of the world countries as a biological weapon. Lately, the Chinese Ministry of Foreign Affairs even claimed that the Covid-19 was not necessarily originated in China so that they were tracing the origin of the virus.[3]

Within the scope of all these discussions, the most popular questions of the international community is how to hold liable the states for their negligence and omissions in taking the necessary measures for preventing the spread of the Covid-19 and their failure to protect the public health and human lives.

This Article aims to focus on the potential international liability of the states with regard to their negligence for the prevention of the worldwide spread of the pandemic and the damages caused on the human life with reference to international law.

WHAT SHALL BE THE OBLIGATIONS OF THE STATES FOR THE PREVENTION OF A PANDEMIC?

As to the international obligations of the states regarding the protection of the public health and the prevention of the epidemic, the most important legally binding international document looks to be the International Health Regulations[4] adopted by the World Health Assembly in 1969.

At the start, International Health Regulations covered six infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever, and typhus. However, after the failure of the world states regarding the fight against SARS pandemic, new types of diseases such as human influenza caused by a new subtype and SARS were added to the International Health Regulations in 2005. The purpose and scope of the IHR (2005) are “to prevent, protect against, control and provide a public health response to the 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.”

The International Health Regulations shall only be applied for the disease which constitutes a “public health emergency of international concern”. Article 1 of the International Health Regulations defines the “public health emergency of international concern” as an extraordinary event which is determined, as provided in the Regulations: (i) to constitute a public health risk to other states through the international spread of disease and (ii) to potentially require a coordinated international response.

With regard to the diseases to create a “public health emergency of international concern”, the International Health Regulation envisages a responsibility for each state to develop, strengthen and maintain the capacity to respond promptly and effectively to public health risks and public health emergencies of international concern.

In addition, according to Article 6 of the International Health Regulations, the states are required to assess the events occurring within its territory and to inform the World Health Organization within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory as well as any health measure implemented in response to those events.

Following a notification, the related state is required to continue to communicate to World Health Organization timely, accurately and sufficiently detailed public health information available where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the potential public health emergency of international concern.

As is seen, the International Health Regulations requires the states to take required measures for the prevention of the disease and to protect the public health by sharing information with the international community about the public health emergencies. The violation of such obligation shall constitute a wrongful act and be subjected to certain sanctions under international law.

IS THE SPREAD OF THE NEW TYPE OF CORONAVIRUS CAN BE ACCEPTED AS AN INTERNATIONAL WRONGFUL ACT?

When it comes to the international liability of the states for the failure to prevent the spread of the Covid-19, one of the main documents to be based should be the “Rules for the Responsibility of States for Internationally Wrongful Acts” adopted by the International Law Commission on 2001.[5] According to such rules, an internationally wrongful act of a state has two elements consisting of an action or omission; (i) is attributable to the related state under international law; and (ii) constitutes a breach of an international obligation of such state. The Rules for the Responsibility of States for Internationally Wrongful Acts defines broadly the scope of the “act” of the state as the conduct of any state organ and a person or entity which is empowered to exercises elements of the governmental authority is considered as an act of the state. Therefore, as to the fight against the Covid-19, the international community is likely to find much negligence attributable to the states which may vary from the occurrence of the virus to allowing the virus to spread by not taking the necessary steps.

On the other hand, the liability of a state based on a wrongful act has certain legal consequences for the reparation of the injury caused by the internationally wrongful act. First of all, Article 30 of the Rules for the Responsibility of States for Internationally Wrongful Acts declares that the state which is entailed by an internationally wrongful act is required to offer appropriate assurances and guarantees of non-repetition of such act. Therefore, although the international community is not able to determine all of the negligence for the spread of the virus of the states at this stage, there is no doubt that all of the world countries are responsible for the non-repetition of such a pandemic crisis.

Likewise, the Rules for the Responsibility of States for Internationally Wrongful Acts regulates a mechanism of reparation for the responsible state. Accordingly, the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. The scope of the term of the injury is broad which includes any damage, whether material or moral, caused by the internationally wrongful act in question.

The injury can be repaired in different forms: (i) by re-establishing the situation which existed before the wrongful act was committed, (ii) by the compensation of any financially assessable damage including loss of profits insofar, (iii) by a satisfaction of the injury in a way such as an acknowledgement of the breach, an expression of regret or a formal apology.

According to Part-III of the Rules for the Responsibility of States for Internationally Wrongful Acts, an injured state is entitled to invoke the responsibility of the state which has committed an internationally wrongful act by giving a notice of its claim. In addition, an uninjured state may also invoke the responsibility if the obligation breached is owed to the international community as a whole. At this point, there is no doubt that the protection of the public health can be classified as an obligation of the entire world states owed to the humanity. However, as stated above, before the invocation of the responsibility of any state related to the coronavirus outbreak, the international community is primarily required to determine which violation is attributable to which state.

On the other hand, the Rules for the Responsibility of States for Internationally Wrongful Acts do not include a dispute settlement mechanism which may be referred to in case  the responsible state fails to comply with its obligations for the remedy of the injury. It is regulated that the injured state may take lawful counter measures by suspending their own compliance with obligations owed to the responsible state in order to induce the same to fulfill its obligations provided that such countermeasures do not include any act against the international law such as violation of the fundamental human rights. The list regarding such countermeasures seems to be limitless; for example the removal of membership of international organizations, suspension of travel to the responsible states, the international trade restrictions can be listed as legal countermeasures to be implemented by the injured states.

The question to be answered should be whether the mechanism of the countermeasure can mechanically be implemented by taking into consideration of geopolitical issues. Indeed, it is reported that the mechanism of the compensation of the damages has played no discernable role in disease outbreaks over the long history of international health cooperation. [6] Since the spread of an infectious outbreak remains as a complicated issue for all of the world states, any state can be accused of causing an outbreak and may be faced with the threat of sanctions; states are not willing to pursue compensation against the other states when it comes to the damages caused by a disease outbreak. In fact, it can be said that whether a state would be held liable for its negligence against a disease somehow becomes to be a political decision to be made by the injured state rather than seeking a legal decision for it.

IS IT POSSIBLE TO FILE A LAWSUIT AGAINST THE STATES BECAUSE OF COVID-19 DAMAGES ?

As it is stated above, the Rules for the Responsibility of States for Internationally Wrongful Acts do not set forth a dispute resolution mechanism but a self-help remedy system for the injured states. On the other hand, the international law, needless to say, contains a mechanism in order to resolve the disputes between the states arising from the violation of an international obligation.

Accordingly, the legal consequences of an internationally wrongful act are subject to the procedures of the Charter of the United Nations. Pursuant to the Chapter XIV of the Charter of the United States[7], all members of the United Nations are ipso facto parties to the Statute of the International Court of Justice as the principal judicial organ of the United Nations. In addition, Article 94 of the Charter regulates that the United Nations members undertake to comply with the decision of the International Court of Justice in any case to which it is a party. The Charter also regulates the execution of the judgments in case the condemned party fails to perform its obligations arising from a judgment rendered by the International Court of Justice. In this case, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

However, we should not conclude from such regulation that a responsible state can be compelled to appear before an international court without its consent. The sovereignty is central to the international understanding of state system. Under international law, the states are protected by the doctrine of state sovereignty so that they may reject to be a party to a case before an international court even if they are in breach of an international obligation.[8] The International Court of Justice declares that the Court is not permitted, under its statute, to investigate and rule on acts of sovereign States as it chooses and the states must consent to the Court’s considering the dispute in question. This is a fundamental principle governing the settlement of international disputes, since States are sovereign and free to choose how to resolve their disputes.[9]

At this point, it should be noted that the doctrine of state sovereignty shall also be applied as to the lawsuits to be initiated by the citizens of other states against the responsible state. The states are immune from the lawsuits filed by the citizen of the other countries and are protected by the state sovereignty based on the understanding of reciprocity. In other words, the states are not willing their citizens to be able to sue another state in exchange for the protection of such immunity for themselves against the citizens of other countries.

CAN THE WORLD HEALTH ORGANIZATION BE HELD LIABLE AND SUED OVER CORONAVIRUS ?

The failure of the world to prevent the health crisis due to the spread of the Covid-19 outbreak proposes not only the state responsibility but also the functionality of the World Health Organization as an item for the agenda. Especially after its declaration dated 14 January 2020 stating that preliminary investigations conducted by the Chinese authorities had found no clear evidence of human-to-human transmission of the novel coronavirus[10], the World Health Organization is under the acquisition of the international community for glossing over the seriousness of the new type of coronavirus and for not advising against the pandemic in a timely manner.

The World Health Organization is undoubtedly one of the most important actors to work closely with the states and to lead and coordinate the world to handle the spread of Covid-19 based on the International Health Regulations. As above mentioned, the International Health Regulation has been revised in line with the experience of SARS outbreak. The main idea of the revision is to create an international cooperation against the disease outbreak under the leadership of the World Health Organization. The World Health Organization announced the update of the International Health Regulations in 2005 by stating that “The emergence of SARS in 2003 demonstrated as no previous disease outbreak ever had how interconnected the world has become and how rapidly a new disease can spread. This shared vulnerability has also created a need for collective defences and for shared responsibility in making these defences work. This is the underlying principle of the International Health Regulations.”[11]

However, the health crisis of Covid-19 showed that such dream of an international cooperation to handle critical health matters is not working properly. The mere existence of the World Health Organization does not protect the humanity but a revision in the structure and the functionality of the World Health Organization itself is absolutely required.

The Article 67 of the Constitution of the World Health Organization[12] states that “Representatives of Members, persons designated to serve on the Board and technical and administrative personnel of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.” In addition, according to the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations[13], the specialized shall enjoy immunity from every form of legal process and the officials of the specialized agencies shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Therefore, neither the World Health Organization nor its official could be held legally liable for their negligence regarding the fight against Covid-19.

We are of the opinion that there should be an enforcement mechanism or at least some sanctions should be applicable for both for the organizations and its officials as to ensure the functionality of the system, by taking into consideration of the critical role as played by the World Health Organization in respect of the prevention of the health crisis such as Covid-19 epidemic.

CONCLUSIVE REMARKS: Finally, it appears that international laws or treaties with regard to the protection of public health, particularly epidemics, seem to be insufficient as to provide a strong mechanism of judgement and enforcement for the ones who are seriously and adversely affected due to such epidemics.

Indeed, although, the international documents somehow regulate certain mechanism for the liability of the states due to their wrongful act for not protecting the public health, in fact, it can be said that whether a state would be held liable for its negligence against a disease somehow firstly becomes to be the choice of the state accused. Having said that the ground of such a protective system which serves the benefits of the state which is supposedly negligent is somewhat understandable given the very possible severe and destructive consequences of a litigation process. However, we hope it will change during and/or after the crisis of Covid-19 and its devastating effects.

As explained above in detail, this article clearly shows us that the international law does not have an active and firm mechanism for the protection of the humanity against the negligence of the states regarding the public health issues. Since it is seen that the obligations of the states arising from the International Health Regulations does not protect us, the international community needs to have a strong and enforceable legal mechanism. Indeed, it is very critical to determine the cause of epidemics under this information poisoning world where you hear from various sources very conflicting information, most of which are consciously and maliciously created.

Obviously, the World Health Organization which is mostly funded by the states where the biggest funder is USA cannot be expected to conduct an impartial and effective investigation regarding pandemics around the world. If these investigations are not properly conducted, humanity will never be satisfied as to who is primarily liable for such kind of pandemics.  It has therefore become very critical to have an independent authority which may properly realize such investigations. We are of the opinion that instead of seeking for new authorities or institutions, the structure of the World Health Organization shall completely be changed together with the existing management who obviously failed in this Covid 19 outbreak. The new structure shall among other useful features absolutely enable the Organization to function more independently, efficiently, transparently, professionally and proactively.  

Besides, the world states must without waiting for the completion of this epidemic, convene to find a solution in order to take necessary measures to prevent the occurrence of new epidemics and/or to mitigate the adverse effects of new ones. In this respect and in parallel to the reorganization of the World Health Organization, an independent and enforceable international legal system shall absolutely be established as to enable i) the newly structured World Health Organization to apply some sanctions on the states who fail to take some measures in a timely and proper manner to prevent possible epidemics, ii) the states which are harmed due to such kind outbreaks to seek for monetary remedies against those who have negligence or tortious acts in the occurrence of epidemics.

Our concern is that during or after getting to an end of this tragic pandemic, international community will again fail take lessons from this destructive outbreak and thus most people, companies, governments would concentrate on their own daily business under the severe economic and socioeconomic problems and the humanity would remain to be unprotected as it has always been.