MTA Law Working Papers


Tamás Hoffmann, Łukasz Gruszczyński, Péter Marton: State Responsibility for the Failure to Prevent the Spread of SARS-CoV-2

The Covid-19 pandemic has clearly demonstrated the vulnerability of the globalized world to the international spread of infectious diseases. The first cases of Covid-19 were identified in Wuhan – the capital city of Hubei Province in the People’s Republic of China (China or PRC) – in December 2019. At the time, nothing was known about the disease, and doctors were simply alarmed by the growing number of viral pneumonia cases of an unknown cause. The virus rapidly spread across mainland China and, within a matter of weeks, migrated to other countries in Asia, Western Europe and the United States. The outbreak was declared by the World Health Organization (WHO) to be a Public Health Emergency of International Concern on 30 January 2020 and a pandemic on 11 March 2020. As of 19 October 2020, there are more than 40 million registered cases and over 1.1 million of Covid-19-related deaths. Most of the researchers, however, agree that the officially registered cases represent only a fraction of the actual infections. The WHO estimates that up to 10% of the global population may have already contracted with the virus (although this estimate was based on unclear methodological grounds). At the same time, even the number of deaths is undercounted in many countries, as demonstrated by considerable excess mortality since the beginning of the pandemic, in excess of expected mortality as well as the number of officially registered Covid-19 deaths. The above developments naturally beg the question of whether any State should face international legal responsibility for not taking timely and effective measures to prevent the cross-border spread of a lethal pathogen. This issue is the central question of this text. In order to answer it, the article proceeds as following: Section II summarizes the underlying rationale of preventing diseases; it then recapitulates, in Section III, the most relevant general rules of international law relating to state responsibility, the pertinent norms of the WHO International Health Regulations (IHR), and other applicable rules of international law. Finally, the article concludes in Section IV by briefly summarizing how these rules might apply to the PRC – the country that remains at the centre of the current pandemic, even if the number of its domestic cases is currently very low.