JURIST Guest Columnist Matiangai Sirleaf, a professor at the University of Pittsburgh School of Law and a leading scholar in global public health law, discusses international responsibility in the context of epidemic and pandemic diseases ...
“The world is contending with the increasing incidence and severity of a wide range of highly infectious diseases.” These words appear in Responsibility for Epidemics, an article I wrote in 2018. There have of course been dire warnings about a global pandemic for a while. In Responsibility for Epidemics, I argue that a broader conceptualization of responsibility is necessary to effectively deal with highly infectious diseases given their potential to become worldwide pandemics. The coronavirus disease 2019 (COVID-19) pandemic is the latest to expose how the increasing interconnectedness of the world will make epidemic diseases progressively more difficult to contain. Highly infectious diseases like COVID-19 typically do not respect borders or passports. They do not distinguish between nationality, race, ethnicity, gender or other categories. They pose transnational challenges that require cooperation and action through law.
States at times turn to international law to confront problems that overwhelm and transcend boundaries. International law increasingly addresses every type of human activity, including those typically considered the exclusive domestic jurisdiction of states—like public health and the prevention, containment, mitigation and treatment of epidemic diseases. The COVID-19 pandemic emphasizes why it is necessary to question the extant frameworks for responsibility for epidemic and pandemic diseases. Key considerations include how responsibility should be distributed amongst actors and which actors should be held responsible. A thorough analysis of the actors responsible for the COVID-19 pandemic would require that we be substantially on the other side of the curve. Accordingly, this post focuses on the issues implicated in trying to address the former. This post also begins to consider what responsibility should look like for epidemic and pandemic diseases. Another post will delve deeper into re-conceptualizing responsibility.
The legal framework for controlling highly infectious diseases is spread across multiple regimes internationally. The regime for allocating responsibility is located under the law of responsibility, which provides that states that violate international law have “an obligation to make full reparation for the injury caused by the internationally wrong act.” Global public health law is the most specific field regulating infectious diseases and it sets out the primary obligations of states in the International Health Regulations (2005). Its main purpose is to “prevent, protect against, control and provide a public health response to the international spread of disease.” The Regulations create a system of state surveillance and notification for certain infectious diseases. Another important framework is human rights law, which includes protections against the arbitrary deprivation of life and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Under human rights law, states are to take primary responsibility to prevent, treat, and control epidemic diseases.
The most common answer to how responsibility is allocated following epidemic or pandemic diseases is that no actor is held responsible and no allocation occurs. For example, states have generally not pursued legal action against other countries with claims of failure to comply with disease notification obligations. Additionally, state actors tend to regard their human rights obligations as territorial, even though member states to the International Covenant on Economic Social and Cultural Rights are supposed to respect the enjoyment of the right to health in other countries. State parties are also obligated to prevent third parties from violating the right to health in other countries if they are able to influence third parties by way of legal or political means that do not conflict with other international obligations. Moreover, state parties must provide an environment that facilitates the discharge of responsibilities on the right to health. Yet, this often does not pertain.
Under the law of responsibility, every internationally wrongful act of a state comes with international responsibility. An internationally wrongful act of a state could be an action or omission. The first requirement is that the conduct in question be attributable to the state under international law. The second requirement for responsibility to attach to a state is that the conduct must constitute a breach of a primary international legal obligation of that state. The International Law Commission’s commentary states that no specific mental state is required with respect to the breach of a state’s primary obligation, “only the act of a state that matters, independently of any intention.” It goes on to provide that the mental standard should depend on the circumstances and does not set out a presumption one way or another.
Similarly, the mental state requirement for analyzing responsibility for epidemics and pandemics should also be wide-ranging. Responsibility should not be limited to solely situations where it is the actor’s purpose or conscious objective to perform an action that causes or exacerbates the harmful effects of highly infectious diseases. The commentary similarly recognizes that no fault or intention to harm is required for attribution of state responsibility. A fulsome responsibility analysis then should also not simply contemplate situations where an actor has knowledge that their conduct will cause a harmful result, but the actor is indifferent to that result. The commentary acknowledges that in some instances whether there has been a breach of an international obligation may depend on the intention or knowledge of relevant state organs or agents, but does not require the mental state of knowledge as a general rule. An in-depth analysis of responsibility should also include reckless actors that are aware of the strong possibility that their behavior will produce harm but discount the risks and continues anyway. A thorough responsibility analysis must also account for situations of gross negligence where the actor is unaware and inadvertently creates a substantial and unjustifiable risk of harm and this failure constitutes a gross deviation from the standard of care that a reasonable actor in the same situation would exercise. A responsibility for epidemics analysis that recognizes a heightened standard of negligence would be beneficial because it would require the most egregious inadvertent actors to internalize the detrimental effects of the external costs they impose. A rigorous analysis should also expand to include negligent actors who are inadvertent and fail to exercise the standard of care that a reasonable actor would exercise in like circumstances. Allowing for regular negligence as a mental standard would incentivize actors to perform the due diligence required in instances of highly infectious diseases. This broad approach to analyzing responsibility for epidemic or pandemic diseases would be better overall for society because it would incentivize more careful policies and actions. A comprehensive approach, which allows for the application of different mental states depending on the circumstances is compatible with extant principles of responsibility. It will also be sufficiently robust to capture the harms that result from direct and indirect action that are seen during pandemic and epidemic diseases.
Under the principles of responsibility, there must be a causal link between the internationally wrongful act and the injury. The International Law Commission has made clear in the commentary that responsibility is only warranted where the injury resulted from and is ascribable to the wrongful act as opposed to all consequences flowing from an internationally wrongful act. Few cases of pandemic or epidemic diseases are characterized by clear lines of causation. A narrow reading of causation would stop at the following inquiry: if the actor refrained from action, would the result have occurred anyway? However, causation so narrowly understood cannot offer the primary basis for conceptualizing responsibility. In the traditional but-for test, the focus is on whether the result would have occurred but for the actor’s actions. Yet, this would elide the realities of highly infectious diseases, which are characterized by overdetermination. Instead, an inquiry aimed at allocating responsibility should consider: (1) whether the actor’s actions were a substantial factor in producing the result, regardless of whether the outcome might have occurred anyway; (2) whether the actor’s actions hastened the result; or (3) whether the actor’s actions make survival less likely as a result. These queries are important because without examining them one would tend to stop at the first-level inquiry. However, it is critical to delve deeper. Failure to ask the right queries may lead to inaccuracies in identifying what actors are responsible. Thus, the inquiry should focus on whether a given set of actions and omissions were at least substantial factors in producing or contributing to serious adverse consequences witnessed during an epidemic or pandemic.
The commentary to the principles of responsibility also recognizes that causality, in fact, is a necessary but not a sufficient condition. Thus, when determining responsibility internationally, causation usually will not be established where the result is so remote that it would be illegitimate to hold a specific actor accountable. The requirement of a clear causal chain that is foreseeable or proximate to hold an actor responsible for an injury is a fundamental principle recognized in the law of responsibility. A thorough causation analysis should thus consider the direct actions or omissions—be they domestic, international or internal with extraterritorial effect—that had reasonably foreseeable consequences—that resulted in exacerbating an epidemic or pandemic disease. The International Law Commission explained in its commentary that the allocation of responsibility for a wrongful act is legal and not only an analysis of historical or causal processes. Yet, a thorough accounting must necessarily lengthen the causal gaze temporally to fully account for the status quo vulnerabilities of health systems to highly infectious diseases.
A fulsome responsibility analysis would assign contemporary obligations not solely based on immediately preceding events, but also consider historic action that has undermined health systems and contributed to or facilitated the spread of epidemic and pandemic diseases. Broadening the timeline would necessitate consideration of whether the harmful effects of past actions are traceable to the outcomes and trajectories of epidemics and pandemics. This expanded approach to causation does not require trying to disprove all counterfactuals given the impossibility of knowing what would occur in an alternative universe with other circumstances. There is also the ethical reality that makes conducting a social experiment to determine such results impossible. What is most important is the determination of whether the actions or inactions are not too remote or accidental to have a just bearing on the determination of responsibility.
There are many challenges with applying the extant law of responsibility in instances of pandemic and epidemic diseases. First, the law of responsibility is too state-centric in terms of both account holders and power wielders and leaves important nonstate actors outside the circle of responsibility. The traditional principles of responsibility perpetuate the fallacy that states can cope with structural problems, including the increased incidence of epidemic and pandemic diseases. States are not self-sufficient. The deleterious effects of highly infectious diseases are informed in part by the actions or inactions of global institutions like international organizations, important transnational actors like pharmaceutical companies, public-private partnerships and other significant nonstate actors, as well as epidemiological factors, that may be well beyond the control of a given state. Emerging areas of the law of responsibility attempt to recognize concerted action resulting in internationally wrongful acts where there is shared responsibility between international organizations and states, or between international organizations. This attempt to develop the law only pertains to concerted action. The failure to provide for cumulative but nonconcerted action by multiple actors potentially allows states and nonstate actors, to engage in blame avoidance and blame shifting for their actions and inactions that result in exacerbating the consequences of highly infectious diseases. The law of responsibility, like other areas of law, is not neutral, as even non-attribution is a method of distributing responsibility.
When dealing with indivisible harms caused by epidemics and pandemics, there are inevitable challenges in attributing responsibility under traditional principles. Namely, it is difficult to determine what specific actor caused the exact action that later produced a definitive aspect of the damage witnessed. The International Law Commission clarified that it is up to the responsible state to demonstrate what proportion is not attributable to its conduct. The law of responsibility is inapt for addressing epidemic or pandemic disease because the individual actions of multiple actors may be distributed in a way that does not meet these legal requirements. The commentary recognizes that there are some instances where an identifiable element of injury can properly be allocated to one of several concurrently operating causes alone. Yet, it is generally not possible to bring a claim against the collective for cumulative injury. As explained in the commentary on the principles of responsibility, unless some part of the injury can be shown to be severable in causal terms from that attributed to the responsible state, then it is fair to hold an actor responsible for all the consequences, not being too remote, of its wrongful conduct. Thus, one could hold states jointly and severally responsible for the resulting harm irrespective of their own contributions. Theoretically, a state actor could be held responsible for the harm irrespective of the size of their individual contribution. Yet, the law on the books for responsibility is untenable for the realities of today’s world wherein responsibility likely needs to be distributed to several states and nonstate actors.
Formal determinations of responsibility for epidemic or pandemic diseases will also be difficult to come by not just because of the lack of political appetite to pursue outbreaks that are perceived as purely biological or natural occurrences. There are also many procedural and practical limitations. For example, all international dispute settlement mechanisms are premised on state consent. Claims with allegations of harms during an epidemic or pandemic disease would not be able to proceed against a state if it withholds its consent to jurisdiction internationally. A recent class-action lawsuit brought in a US federal court seeks damages for the COVID-19 pandemic against China. Yet, finding a domestic court that has and decides to exercise jurisdiction given sovereign immunity and other jurisprudential doctrines over the actors implicated in pandemics and epidemics will be challenging. Additionally, there could be numerous joinders of parties and counterclaims that would likely make litigation cumbersome. You could envision arguments put forward by accused governments that they acted in time to put other governments on notice regarding a highly infectious disease and those actors failed to exercise the due diligence required and to take necessary measures to prevent further harm. Further, even in situations where claimants are successful, they may face difficulty recovering from respondents. For example, when seeking damages for arbitrary deprivation of life or violations of the right to health during pandemics or epidemic diseases as some actors would likely be judgment proof given the potential amounts involved. This post demonstrates that reimagination of responsibility is required more generally and especially as applied to epidemic and pandemic diseases. It also indicates that more substantial international legal and institutional reform is necessary to provide full redress for violations witnessed with epidemic and pandemic diseases.
Matiangai Sirleaf is a professor at the University of Pittsburgh School of Law. Her scholarship focuses on remedying the accountability and responsibility gaps that exist in international law. Professor Sirleaf’s expertise includes public international law, global public health law and international human rights law. Her current research analyzes the disproportionate distribution of highly infectious diseases and the role of international law in facilitating this result. The University of Pittsburgh awarded Professor Sirleaf the Chancellor’s Distinguished Research Award in 2019.
Suggested citation: Matiangai Sirleaf, COVID-19 and Allocating Responsibility for Pandemics, JURIST – Academic Commentary, March 31, 2020, https://www.jurist.org/commentary/2020/03/matiangai-sirleaf-responsibility-for-pandemics
This article was prepared for publication by Trisha Klan, a JURIST Staff Writer. Please direct any questions or comments to her at firstname.lastname@example.org
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