International Law on Infectious Diseases and State ResponsibilityNone of the treaties addressing the international spread of infectious diseases dating back to the nineteenth century have rules requiring payment of compensation for damage in other countries associated with violations of treaty rules.
The leading contemporary treaty, the International Health Regulations (2005) (IHR), has no provisions on this issue. This situation is not unusual. Most treaties do not address whether the violation of their rules creates an obligation to compensate those states parties adversely affected by harms caused by the violation.
Customary international law on state responsibility holds that a state violating international law has “an obligation to make full reparation for the injury caused by the internationally wrong act.”
This customary rule has played no discernable role in disease outbreaks over the long history of international health cooperation, even when states have argued that countries violated applicable treaties. States have not seriously pursued compensation against countries accused of breaching treaty obligations to report disease events or refrain from imposing trade or travel measures that have no scientific basis. This history should give us pause before mechanically applying the IHR and the principles of state responsibility to the COVID-19 pandemic.
States have not been keen to use customary law on state responsibility in the infectious disease context because of how political and epidemiological considerations align. Fulfilling treaty obligations to report disease outbreaks involves challenging scientific and public health questions and difficult political calculations.
Pathogenic threats with the potential for cross-border spread can appear in any country. For example, although the origin of the devastating influenza pandemic of 1918-19 remains unclear, the United States is on the list of potential countries of origin. The H1N1 virus that caused an influenza pandemic in 2009 was first detected in the United States. This reality creates a shared interest among states not to litigate disease notification issues. Likewise, a state experiencing an outbreak will complain about irrational trade or travel measures other countries impose. However, next year, that same state might want to implement similar measures when another nation suffers an outbreak, which reveals reciprocal interests among states not to seek reparations for violating treaty rules on trade and travel measures.
Turning to COVID-19, arguments can be, and have been, made that China violated its IHR obligations by reporting the disease event in Wuhan to WHO when it did. However, to my knowledge,
no state party has alleged that China violated its IHR notification obligations. Nor, I predict, will any government do so. As noted above, states understand that,
tomorrow, the shoe could be on the other foot, which creates a collective incentive among countries to avoid being legalistic about reporting obligations. This incentive dampens desires to establish that China committed an internationally wrongful act under the IHR’s notification obligations.We have seen the same dynamic with arguments that IHR states parties that imposed travel restrictions on China violated their treaty obligations. Yes, these measures displeased China, but it has not, and will not, pursue legal claims and seek reparation. China did not want to restrict its political flexibility when, in this or future epidemics, it wants to respond – including with travel restrictions of its own — to threats it perceives from outbreaks in other countries.
The IHR contains a dispute settlement provision, so a state party could advance legal claims that China violated the IHR and, under principles of state responsibility, has an obligation to make reparation for the damage caused by that wrongful act. However, countries have never used the dispute settlement provisions in infectious disease treaties from the nineteenth century through today — another indication that states have no interest in legal remedies in this area. In addition, arguing that China violated the IHR would have to navigate how WHO has praised China’s performance during the outbreak. WHO does not decide how states parties interpret the IHR, but the IHR itself gives WHO such prominence and authority that its actions in this context could not be ignored.
Any pursuit of a claim against China under the principles of state responsibility would also have difficulty with the causation element of those rules. The International Law Commission has explained that the causation requirement focuses on “the injury from and ascribable to the wrongful act, rather than any and all consequences flowing from an intentionally wrongful act.” Thus, whatever reparation China might owe under these principles likely does not encompass the trillions of dollars of damage associated with the outbreak. What’s more, as commentary has noted, many countries now struggling with COVID-19 had time to prepare for the pathogen’s transboundary spread after China reported its outbreak under the IHR.
Under the principles of state responsibility, separating what damage is attributable to China’s delayed reporting and what harms arose because other governments botched their responses to COVID-19 would be difficult. Such causation issues also help explain why states have, historically, not pursued reparations for damage associated with alleged violations of treaties on infectious diseases.
https://www.justsecurity.org/69394/covi ... gulations/ 
