COVID-19 in the International Arena

AND THE PANDEMIC

While China's responsibility is being debated in connection with the COVID-19 virus, which has affected the whole world, and the pandemic declared by the WHO, if we take a general look at what kinds of actions may be brought on the basis of the damage suffered as a result of the transmission of this virus, we may begin by distinguishing between a State and an individual entering into a legal dispute with China at international level, examining international law and the conventions to which the parties are party, and then look at domestic law.

The International Health Regulations and the Duty to Notify

Because the diseases covered by the International Health Regulations (IHR) of the United Nations World Health Organization, to which China is also a party and which are therefore binding on it, were limited, and because States Parties did not fully comply with their obligations to notify the WHO of outbreaks, the IHR were revised in 2005 with a view to the measures that may be applied, in order to prevent the international spread of diseases, to protect against them, to control their spread and to provide the necessary public health response, and important rights and obligations were laid down for both States Parties and the WHO.

Articles 5, 6 and 7 of the IHR regulate the obligation of notification for States Parties and the WHO. While Articles 5 and 6 of the IHR provide for the WHO to collect procedures to prevent international spread, to inform States Parties and to request them to report their own data, Article 6 of the IHR requires each State Party to notify the WHO, by the most efficient means of communication available and within 24 hours, of all events within its territory which may constitute a public health emergency of international concern, as well as any health measure implemented in response to those events. Article 7 of the IHR provides that if a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide the WHO with all relevant public health information.

Although there are as yet no clear data on the ongoing situation and some information has not yet been verified, there are allegations that China did not notify the WHO of the cases it encountered before December, concealed data, failed to take measures, misreported the number of infected people, and allowed entry into and exit from Wuhan, the city where the outbreak first emerged, until January.

International Responsibility of the State and Wrongful Acts

In international law, for an act to be wrongful, it must have been committed negligently or intentionally. In addition, the act underlying the wrongful act must be attributable to the State concerned; in other words, it must have been carried out by that State.

Provided that the acts alleged against China are proven, it may be held liable to pay compensation under the international agreements, regulations and all legislation to which it is a party.

https://www.hssgm.gov.tr/UluslararasiSaglikTuzugu

The concept of tort is regulated in Article 34 of Law No. 5718 on Private International and Procedural Law (MÖHUK). Obligations arising from a tort are subject to the law of the country where the tort was committed. Where the place in which the tort was committed and the place in which the damage occurred are in different countries, the law of the country where the damage occurred applies. If the tort was committed in China but the damage occurred in Türkiye, Turkish law applies.

International Judicial and Arbitral Remedies

As regards the forum to be applied to, the first that comes to mind is the International Court of Justice.

Countries that recognise the International Court of Justice also accept the binding nature of its judgments. An application to the Court concerning a dispute between two States requires the consent of both States. It will not be possible to speak of China’s consent in this option. Even if the contrary were assumed, problems would arise in the enforcement of the final judgment. Enforcement of the judgment may be ensured by the UN Security Council. However, here too it must not be forgotten that China, together with Russia, the United States, the United Kingdom and France, is one of the five permanent members of the UN Security Council holding a veto. As a permanent member, China would veto any Security Council resolution against it. Moreover, the UN Security Council may not wish to become involved in the process for diplomatic reasons.

Article 56 of the IHR provides, in the words "the parties are free to choose any means provided that it is peaceful, but the main traditional means of settlement are negotiation, inquiry and investigation, mediation, conciliation, good offices, arbitration and, finally, judicial settlement", that disputes between the parties should be resolved by peaceful means, failing which other means may be resorted to. Article 57 of the IHR provides that recourse may be had to the Permanent Court of Arbitration. However, even this route requires China's written consent; that is, China must have accepted arbitration in writing.

The injured State may also claim compensation unilaterally, but there is no means of imposing sanctions. Moreover, States have been reluctant in the past to take risks in relation to epidemics, considering that the same situation may one day befall them.

Ultimately, even if one is in the right, no effective sanction appears available owing to the deficient mechanisms in international law.

Actions That May Be Brought Against Individuals and the Administration

As for lawsuits between individuals arising from transmission of the virus, the person who transmitted the virus may be punished and may also be liable for compensation. First, the person transmitting it must have intended to make someone ill or to kill, acting knowingly and willingly. Article 81 of the Turkish Criminal Code regulates intentional killing and Article 86 intentional injury. In addition, the act must be committed by suitable means. The question whether the virus is a suitable means can be answered in the affirmative. Moreover, the act must be attributed in a way that removes reasonable doubt. In other words, it must be possible to determine beyond doubt who transmitted the virus. Proving this is very difficult. For example, where one spouse never goes out or meets anyone and the other spouse transmits the virus.

Meanwhile, it also appears possible for individuals to bring actions against the administration on the basis of fault-based or strict liability, claiming that States did not take sufficient measures and that, had they done so, the harm could have been prevented.

In addition, those who escape while under quarantine and transmit the virus may be punished under Article 195 of the Turkish Criminal Code.

The individual responsibility of persons within the WHO may also be examined. Articles 66-67-68 of the WHO Constitution show that officials enjoy privileges and immunities in judicial proceedings for acts performed in connection with the Organization, in order to support the independent performance of their duties; for this reason, holding them responsible does not appear possible.

Measures From the Perspective of Fundamental Rights and Freedoms

As regards fundamental rights and freedoms, in answer to the question whether there has been a violation of rights, it is seen that States Parties are obliged under Articles 21 and 22 of the WHO Constitution to comply with the rules laid down by the WHO and to take the necessary measures.

Article 3 of the International Health Regulations (IHR) refers to respect for the dignity, human rights and fundamental freedoms of persons.

Although States are obliged to respect fundamental rights and freedoms, the priority among the protected rights is debatable. States must first and foremost respect the right to life and take protective measures. There must also be a balance among the protected fundamental rights and freedoms. The contrary view could amount to a violation of the right to life, among fundamental rights

Article 4 of the International Covenant on Civil and Political Rights grants States the right to derogate from their obligations in emergencies. However, the State must declare such a state of emergency.

In respect of rights such as the right to travel and the right and freedom of assembly, States are permitted to take measures provided that the measures taken are lawful, necessary and proportionate. In other words, all rights must be balanced.