State International Responsibility and Transnational Pandemic: The case of COVID-19 and the People's of Republic of China

Author:Valerio Mazzuoli
Position:Federal University of Mato Grosso, Brazil
Pages:431-468
SUMMARY

This article addresses the possibility of state responsibility for transnational epidemics or pandemics, especially focusing on COVID-19 as a case study, a pandemic originated in the People’s Republic of China. To that end, this article analyzes this issue grounded on international health regulations together with the Constitution of the World Health Organization to be able to assess whether... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
e research conclusions are preliminary and can be modied according to new factual
information and/or scientic evidence that may emerge ahead. e information
on concrete facts used in this article was accounted on WHO ocial reports and
reported by the international press, although both are subject to occasional. us,
in the light of new elements, the conclusions deriving from this research may be
modied in the future. is text was completed on April 24, 2020
statE intErnational rEsPonsiBility
for transnational PandEmiCs
the CAse of Covid-19 And the peoples republiC
of ChinA
Valerio de Oliveira Mazzuoli
e Federal University of Mato Grosso, Brazil
E-mail: mazzuoli@ufmt.br
is article addresses the possibility of state responsibility for transnational
epidemics or pandemics, especially focusing on COVID-19 as a case study, a
pandemic originated in the People’s Republic of China. To that end, this article
analyzes this issue grounded on international health regulations together with
the Constitution of the World Health Organization to be able to assess whether
these rules are binding on the Member States. Furthermore, this article analyzes
case laws from the International Court of Justice, and the feasibility of ling
legal procedures against China before this U.N. Court for not informing the in-
ternational society in due course about an impending COVID-19 pandemic.
Keywords: State Repsonsibilty, Transnational Pandemics, International Health Law,
COVID-19, International Litigation.
VII Indonesian Journal of International & Comparative Law 431-68 (July 2020)
432
Mazzuoli
INTRODUCTION
In December 2019, in the city of Wuhan, Hubei province, in the Peo-
ple’s Republic of China, there were the rst diagnoses of infection cases
caused by a new type of Coronavirus, causer of COVID-19 disease,
which can lead to acute respiratory disorders. e technically named
Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2)
spread rapidly across the globe, decimating thousands of people world-
wide, especially the elderly (individuals over the age of 60) and those
with pre-existing conditions, such as cardiopathy, diabetes, pneumo-
nia, neurological disorder, kidney disease, immunosuppression, and
asthma. e World Health Organization (WHO), as of March 2020,
declared this outbreak a global pandemic, that is to say, it has already
spread across all continents.1
e virus probably has a zoonotic origin, most likely from bats,
which serve as its hosts. A theory is that animals infected by bats—
especially Asian pangolins2—may have been brought to Huanans wet
markets—in the Jianghan District, in Wuhan, and this is arguably
where the rst person was infected.3 e transmission of the virus into
humans would be facilitated because pangolins and other wild animals,
including a variety of bats, are profusely sold in these Chinese markets.4
ere is still scientic uncertainty about the means of transmission
(the rst animal to host SARS-CoV-2, for example, is yet to be
determined). However, it is undeniable that the original epidemic
quickly turned into an apparently uncontrollable pandemic due to the
virus capacity of easy and fast transmission from person to person by
a mere handshake, saliva droplets, sneezing, coughing, or by touching
1. See WHO, Coronavirus disease (Covid-19) Pandemic, https://www.who.int/
emergencies/diseases/novel-coronavirus-2019 (last visited Apr. 2, 2020).
2. Pandolins are mammals which resemble armadillos and, currently, the type of wild
animals with the higest tracking rate in the world.
3. For details, see K G. A, A R, W. I L, E C.
H  R F. G. e proximal origin of SARS-VoC-2. N M
(Mar. 17 2020, available at: [https://www.nature.com/articles/s41591-020-0820-9] (last
visited Apr. 2, 2020).
4. See H B. Coronavirus: e race to nd the animal which originated the
outbreak, BBC N (Feb. 26 2020, available at https://www.bbc.com/portuguese/
internacional-51641776 (last visited Apr. 2, 2020).
433
State International Responsibility for Transnational Pandemics
Mazzuoli
contaminated surfaces such as cell phones, tables, door handles, toys,
and computer keyboards.5
e purpose of this paper is to determine whether, in the light of
public international law, there is state accountability for the thousands
of deaths that occurred worldwide as a result of COVID-19. In other
words, this paper seeks to determine whether there is a feasible claim
of international responsibility. us, would the law of nations provide
any mechanism to hold the Chinese government accountable if proven
that it has not taken the necessary precautions to prevent the spread
of the new Coronavirus? Are there international norms and case-laws
addressing these issues? is inquiry (although preliminary) seeks to
address these questions.
Finally, it should be noted that the object of the present investigation
strictly concerns the possibility of holding China liable under
international law for the ongoing pandemic. It is important to highlight
that domestically, states enjoy immunity from the jurisdiction of other
states concerning sovereign acts, in the light of the customary rule par
in parem non habet jurisdictionem. is is consistent with previous
decisions from the International Court of Justice, especially in the case
of Germany vs Italy (Greece intervening) on February 3, 2012.6
I. REFLECTIONS OF COVID-19 ON
STATES’ ACTIVITIES
COVID-19 has had severe impacts on health institutions, human lives,
and the economy of several states throughout the world. In regard to
health, national systems have been overloaded with mass hospital-
izations and the lack of beds, medicines, and respirators leading to a
systemic collapse in several States. In Italy, for example, thousands of
infected people crowded the intensive care units (ICUs) at the peak of
the contagion curve, hindering the actions of state ocials and health
5. See B, Ministry of Health, What is coronavirus? (Covid-19), available at https://
coronavirus.saude.gov.br (last visited Apr. 2, 2020).
6. For details, see V  O M, C  D I
P [Course of Public International Law] 476-484 (2020).

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