State Responsibility: An International Law Perspective
It's been more than 3 months since most of the countries of the world are shut down and economies fall. There are many things which the world experienced like massive deaths, the hardship of migrants and allegations of countries like USA, Germany, France etc. that all this happened because of the deliberate act of China. Countries argued that China must give reparation cost to affected countries, as it says they have proof that China deliberately conducted the biological test in its lab at Wuhan, which failed and had led to never seen consequences. The important question here, is China liable for its actions and can any responsibility be imposed on it as per international law?
The international law of state responsibility determines the consequences that ensue when a state commits an internationally wrongful act. This law is largely codified in the International Law Commission (ILC) Articles on State Responsibility, drafted over decades by the ILC and accepted by the UN General assembly. The ILC Articles make it clear that state responsibility results when there is an act or omission attributable to a state and that act or omission is not in conformity with what is required by international law. To this extent, all international obligations are transnational, because they give rise to consequences at the international level when a breach occurs. In order to establish China's liability claimant has to prove obligations under International Health Regulations 2005. Article 5 and 7 of regulations mention that there should be a timely notification of any disease which originates in the country in order to make others prepared for it. The proof by countries that China neglected in giving true information at the proper time to WHO and other countries will be fruitful in establishing China's breach.
Whether or not there has been a breach of an obligation depends on the precise terms of the obligation, its interpretation and application, taking into account its object and purpose and facts of the case. After the standard of care and specific duties are identified as injured States or non-State actors and determining the scope of injury for which reparations may be demanded. Standard care and specified duties include cooperation and providing international assistance. Cooperation can be viewed as an obligation of conduct, whereas the provision of international assistance to the maximum of a state's available resources, constitutes an obligation of result. In case of Ireland v. United Kingdom (max plant case 2001) International tribunal on the Law of the Sea, opined that duty to cooperate is a fundamental principle in general international law, as well as one contained in the relevant treaty provisions and that rights may arise therefrom which the Tribunal may protect. Thus countries claiming damages from China will have to prove that China did not follow these two principles: to corporate and to provide international assistance.
Reparations in International Law
State responsibility has created an implied obligation on the state who commits an internationally wrongful act when there is no specific treaty in regards. Obligations are also not dependent on that term that the injured party must bring a complaint. In case of Italy v. France, UK & USA (1954) it is mentioned that every state has two duties namely, duty to cease the wrongful conduct and secondly the responsible state is under an obligation to make full reparations for the "injury caused" by the internationally wrongful act. In case of Germany v. Poland (chorzow factory case) it has held that in any event, reparation is the "indispensable complement" of a failure to apply a convention; it is a duty of the wrong-doing State and not a right of the injured party, and it is a duty that arises automatically upon the commission of a wrongful act. Reparations should, in so far as possible, wipe out the consequences of the illegal act and re-establish the situation which the world would, in all possibility, have existed if that act had not been committed. It was highlighted in Saranaka people v. Suriname (2007) that even if the private act is directly causing injury, the state may be responsible if the surrounding circumstances indicate that the state should have taken appropriate steps to regulate or halt conduct.
Light of above instances it is clear that claiming reparations from China is not easy and right because the amount may be more than China's GDP and thus the purpose of damages to restore situations as they were will not be possible for China in any condition.
All these precedents and principles create a state responsibility and can make any wrongdoing state liable under International law.
1) Dinah Shelton, Remedies and Reparation, http://www.corteidh.or.cr/tablas/r30119.pdf
2) International Law Commission, 'Draft Articles on the Responsibility of States for internationally Wrongful Acts, with commentaries', Report of the International Law Commission on the work of its fifty-third session (2001), UN GAOR, Supp. No. 10, UN Doc. A/56/10,at 50(1)(b)(2001).
ABOUT THE AUTHOR:
Swati Tolambia is currently studying law from School of Law, Mody University of science and technology, laxmangarh, sikar (Raj.)
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