Raphael Ryan Chua

Isaiah Athriene Magnaye April 4, 2020

Marionnie Sabado

SPECIAL ISSUES ON INTERNATIONAL LAW

Part I - Philippine Response vis a vis Malaysia

COVID-19 is a worldwide pandemic which has caused countries to take drastic measures
in order to prevent it from spreading among their population. These measures have
impacted the supply of basic necessities and commodities due to their immediate
unavailability fear of a possible shortage in supply. Therefore, in order to prevent
problems in the distribution and supply of such goods, countries have put in place policies
that will help ensure a stable trade environment. Two countries that have taken such
measures are the Philippines and Malaysia.

Philippines

In the Philippines, President Rodrigo Roa Duterte signed Proclamation No. 922 on March
8 2020, placing the entire Philippines under a state of public health emergency due to the
looming threat of COVID-19.1 He later announced a “Community Quarantine of the
National Capital Region from March 15 until April 142 and later placed the whole island
group of Luzon under “Enhanced Community Quarantine” (ECQ) from March 17 until April
12.3 The president likewise declared a State of Calamity under Proclamation No. 929 on
March 16, giving LGUs access to special funds to assist their constituents during the
public health emergency.

Due to the community quarantine, the movement of people has been restricted to their
homes, and only a single person is allowed to leave each household to buy basic needs.
Exempted from this directive are the essential frontliners operating in food services,
medical services, public utilities, and other critical industries that cater to the basic needs
of the population.

1
Proclamation No. 922. Official Gazette of the Republic of the Philippines. March 8, 2020.
2
Talabong, Rambo (March 12, 2020). "Metro Manila to be placed on lockdown due to coronavirus
outbreak". Rappler. Retrieved from https://www.rappler.com/nation/254101-metro-manila-placed-on-
lockdown-coronavirus-outbreak
3
Geducos, Argyll Cyrus (March 16, 2020). "Entire Luzon under quarantine". Manila Bulletin News.
Retrieved from https://news.mb.com.ph/2020/03/16/entire-luzon-under-quarantine/
On March 24, 2020, RA 11469 or the Bayanihan to Heal as One Act 4 was enacted in
order to grant special powers to the president to adopt temporary emergency measures
to respond to crisis brought by the pandemic. One of these powers provided for under
Section 4(i) reads:

(i) Continue to enforce measures to protect the people from hoarding,

profiteering, injurious speculations, manipulation of prices, product
deceptions, and cartels, monopolies or other combinations in restraint of
trade, or other pernicious practices affecting the supply, distribution and
movement of food, clothing, hygiene and sanitation products, medicine and
medical supplies, fuel, fertilizers, chemicals, building materials, implements,
machinery equipment and spare parts required in agriculture, industry and
other essential services, and other articles of prime necessity, whether
imported or locally produced or manufactured.

Consistent with this, and even prior to such issuance, the Department of Trade and
Industry (DTI) has taken steps in order to prevent hoarding and abusive market behaviors
that will seek to take undue advantage of the situation to the detriment of the consuming
public.

The first of these measures was the implementation of a price freeze on basic necessities.
As a result of the declaration of a state of public health emergency under Proclamation
No. 922, a price freeze on the price of basic goods for sixty (60) days was mandated,
following Sec. 6 of RA 7581 or the Price Act. 5 The price freeze covers basic goods
including canned fish and other marine products, locally manufactured instant noodles,
bottled water, bread, processed milk, coffee, candles, and laundry soap, detergent, and
salt. Also included are basic agricultural goods such as rice, corn, cooking oil, fresh, dried
and other marine products, fresh eggs, fresh pork, beef and poultry meat, fresh milk, fresh
vegetables, root crops, sugar, and fresh fruits. 6 The price freeze is being monitored by
Local Price Coordinating Councils, which were reactivated by the Department of
Agriculture (DA) and DTI.

Apart from the price freeze, the DTI also warned against violation of RA 7581 or the Price
Act, which prohibits acts of price manipulation such as hoarding and profiteering. Thus,
through the NBI, criminal charges are being filed against overpricing and hoarding of

4
Rep. Act No. 11469 (2020).
5
Rep. Act No. 7581 (1992).
6
Department of Trade and Industry (2020). “DTI: Nationwide price freeze on basic necessities in effect
amid COVID-19 emergency.” Retrieved from https://www.dti.gov.ph/news/dti-nationwide-price-freeze-on-
basic-necessities-in-effect-amid-covid-19-emergency/.
medical devices and products,7 food, and other basic necessities.8 In addition, the DTI
further issued Memorandum Circular No. 20-07 on Anti-Hoarding and Anti-Panic Buying,
which set a limit on the purchase of basic necessities to ensure sufficient food supply in
groceries and retail establishments.

As to the procurement of medical supplies and COVID-19 test kits, the Philippines has
used all possible means of procuring such supplies and equipment. Aside from its own
purchases and donations received from China9 and Singapore,10 the Philippines has
likewise developed its own test kits, which will help address its lack of COVID-19 testing.11

To secure sufficient supply of food and other necessities, the DTI issued Memorandum
Circular No. 20-06 m which ensures the “smooth and unimpeded movement of all cargo
in Luzon” as to prevent delays in the delivery of goods used in the manufacture of all food
and essential products, medicine, and medical supplies, as well as support manufacturing
activities.12 NEDA has also set up a “networks hub” to share information on supply chain
concerns and address bottlenecks for the movement of essential goods and services. 13

Further, on April 2, 2020, the Bureau of Customs (BOC), Anti-Red Tape Authority (ARTA)
and Food and Drug Administration (FDA) issued Joint Memorandum Circular No. 1 14 to
create the Bayanihan One Stop Shop (BOSS), “a single window to accept all online
applications for importation of covered items,” which streamlines the importation of PPEs
and other medical equipment to avoid bottlenecks and delay. Exporters of such items are

7
Department of Trade and Industry (2020). “DTI warns filing of criminal charges against overpricing and
hoarding of medical devices and products.” Retrieved from https://www.dti.gov.ph/news/dti-warns-filing-of-
criminal-charges-against-overpricing-and-hoarding-of-medical-devices-and-products/
8
Department of Trade and Industry (2020). “DTI CIDG raid essential product hoarders in Manila and
Caloocan.” Retrieved from https://www.dti.gov.ph/news/dti-cidg-raid-essential-product-hoarders-in-
manila-and-caloocan/
9
ABS-CBN News (March 21, 2020). “Thousands of test kits, masks from China arrive in PH to aid
COVID-19 fight.” ABS-CBN News. Retrieved from https://news.abs-cbn.com/news/03/21/20/thousands-
of-test-kits-masks-from-china-arrive-in-ph-to-aid-covid-19-fight
10
CNN Philippines Staff (March 29, 2020). “Singapore donates 40K COVID-19 test kits to PH.” CNN
Philippines. Retrieved from https://www.cnnphilippines.com/news/2020/3/29/singapore-donation-covid-19
-test-kits.html
11
Rita, Joviland (March 30, 2020). 120,000 “UP-developed COVID-19 test kits available starting this
weekend —DOST.” GMA News. Retrieved from https://www.gmanetwork.com/news/news/nation/731847/
120-000-locally-developed-covid-19-test-kits-available-starting-this-weekend-dost/story/
12
Department of Trade and Industry (2020). “DTI ensures unhampered movement of cargo and transit of
personnel of operating establishments.” Retrieved from https://www.dti.gov.ph/news/dti-ensures-
unhampered-movement-of-cargo-and-transit-of-personnel-of-operating-establishments/
13
“Report to the Joint Congressional Oversight Committee Pursuant to Section 5 of Republic Act No.
11469, Otherwise Known as the Bayanihan to Heal as One Act” (2020). Retrieved from
http://www.senate.gov.ph/PRRD_Report.pdf
14
BOC, ARTA, FDA Joint Memorandum Circular No. 1 (2020). Retrieved from https://www.fda.gov.ph/
wp-content/uploads/2020/04/Joint-Memorandum-Circular-No.-01-Series-Of-2020-BOC-ARTA-FDA.pdf
also exempted from presenting documents such as the Certificate of Product Notification
(CPN) or Certificate of Product Registration (CPR) from the FDA.

In addition to these efforts, the President was granted a Php 275 billion allocation for the
national government’s response and recovery efforts against the COVID-19 pandemic,
but has yet to release a breakdown of the allocations.15 This is in addition to a Php 27.1
billion package to help frontliners fight the pandemic and to provide economic relief to
people and sectors affected by the economic slowdown.16

Malaysia

In Malaysia, due to the significant jump in cases of COVID-19 in the country, Malaysian
Prime Minister Muhyiddin Yassin announced on March 16, 2020 the decision of the
federal government to implement the Movement Control Order (MCO), which was to be
in effect from March 18-31, but was extended to April 14. Similar in effect to the ECQ of
the Philippines, the MCO prohibited mass gatherings and closed all government and
private premises except for essential services, namely water, electricity, energy,
telecommunications, postal, transportation, irrigation, oil, gas, fuel, lubricants,
broadcasting, finance, banking, health, pharmacy, fire, prison, port, airport, safety,
defence, cleaning, retail and food supply.17 As of April 3, 2020, Malaysia has the highest
number of coronavirus infections at 3,333 confirmed cases.18

As a result of the Movement Control Order, panic buying became prevalent in Malaysia,19
and following the announcement on the extension of the MCO, another wave of panic
buying ensued.20 However, the Malaysian government assured the public that there was
no shortage of food, and that the country was at peace.21

15
Cahinhinan, John Carlo M. (March 23, 2020). “House panel grants Duterte P275B allocation for
COVID-19 response.” Politiko. Retrieved from https://politics.com.ph/house-panel-grants-duterte-p275b-
allocation-for-covid-19-response/
16
Department of Finance (2020). “Gov’t economic team rolls out P27.1 B package vs COVID-19
pandemic.” Retrieved from https://www.dof.gov.ph/govt-economic-team-rolls-out-p27-1-b-package-vs-
covid-19-pandemic/
17
"Covid-19: Movement Control Order imposed with only essential sectors operating." (March 16, 2020).
New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2020/03/575177/
covid-19-movement-control-order-imposed-only-essential-sectors-operating
18
Müller, J. (April 3, 2020). “COVID-19 cases breakdown Malaysia 2020.” Retrieved from
https://www.statista.com/statistics/1103202/malaysia-covid-19-tested-cases-breakdown/
19
New Straits Times (March 17, 2020). “Covid-19: Panic buying at supermarkets nationwide [NSTTV].”
Retrieved from https://www.nst.com.my/news/nation/2020/03/575302/covid-19-panic-buying-
supermarkets-nationwide-nsttv
20
Kok Ken Sen, A. and Jaya, S. (April 4, 2020). “Be considerate, ignore the urge to panic-buy,” New
Straits Times. Retrieved from https://www.nst.com.my/opinion/letters/2020/04/581127/be-considerate-
ignore-urge-panic-buy
21
Supra. note 19
To ensure adequate daily supply of food during the MCO, the Malaysian Ministry of
Domestic Trade and Consumer Affairs (KPDNHEP) and the Ministry of Agriculture and
Food Industry (MOA) held a consultation with retail industry players. The KPDNHEP
Enforcement Team likewise regularly monitored supermarkets, grocery stores and
convenience stores to ensure adequate supply and to monitor the prices of goods.
Further, to ensure that essential goods reached the public in a timely manner, logistics
and transport service providers were allowed to continue their operations during the MCO
without need for a separate request for approval. 22

As to medical supplies, due to shortage in the availability of face masks, the export of
face masks was likewise prohibited, under the Minister’s powers under Section 6(2)(b) of
Malaysia’s Control of Supplies Act of 1961.23 To secure additional supply of face masks,
the Malaysian government looked to importation. Domestic Trade and Consumer Affairs
Minister Alexander Nanta Linggi further announced that the prices of masks were
increased from 80 sen (Php 9.34) to RM 2 (Php 23.26) per piece24 in order to encourage
importation and ensure its availability. In addition, the government procured 10 million
face masks from China to ensure that their frontliners had sufficient supply. Moreover,
Malaysia was given aid in the form of medical supplies from China25 and the UAE26 to
address the shortage.

In managing the price of goods, the Ministry of Domestic Trade and Consumer Affairs
also implemented the Price Control and Anti-Profession Act 2011, which prohibited the
sale of goods above set prices. Thus, face masks sold above RM 2 were seized and
confiscated, and violators were charged under the law.27

22
FMT Reporters (March 21, 2020). “MCO approval granted for transport of essential goods.” Free
Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2020/03/21/
mco-approval-granted-for-transport-of-essential-goods/
23
Lim, Ida (March 17, 2020). “Minister bans Malaysia from exporting face masks.” Malay Mail. Retrieved
from https://www.malaymail.com/news/malaysia/2020/03/17/minister-bans-malaysia-from-exporting-face-
masks/1847543
24
FMT Reporters (March 20, 2020). “Govt now allows import of face masks, says minister.” Free
Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2020/03/20/govt-
now-allows-
import-of-face-masks-says-minister/
25
Velusamy, Thermesh (17 March 2020). "Hishammuddin: Chinese Government Will Be Supplying
Masks And Disinfectants To Malaysia". World of Buzz. Retrieved from https://www.worldofbuzz.com/
hishammuddin-chinese-government-will-be-supplying-masks-and-disinfectants-to-malaysia/
26
Rahman, Abdul Hakim (30 March 2020). "Malaysia terima peralatan perubatan dari UAE" [Malaysia
received medical equipments from UAE]. Astro Awani. Retrieved from http://www.astroawani.com/berita-
malaysia/malaysia-terima-peralatan-perubatan-dari-uae-235962
27
KPDNHEP Corporate Communication Unit (March 25, 2020). “Angkara Nak Untung Cepat, 223,000
Unit Topeng Muka Dirampas KPDNHEP” Retrieved from https://www.kpdnhep.gov.my/en/media-
kpdnhep/
In addition to these efforts, the government launched an economic stimulus package
worth Rm 250 billion (Php 2.9 trillion), as well as a RM 600 million (Php 7 billion) allocation
to the Ministry of Health for the purchase of equipment and to hire additional medical
personnel, with a detailed plan as to the allocations provided by the government.28 29

Similarities and Differences between Philippines and Malaysia

The Philippines and Malaysia have had mostly similar responses to the coronavirus
outbreak. Both countries similarly implemented lockdowns and reduced operations only
to the essential sectors, and closed down all others in order to prevent the further spread
of COVID-19. Both governments were also prepared to release funds to aid the
frontliners, provide sufficient medical supplies, and to soften the blow of the lockdown by
providing aid to its people. In order to ensure that there is sufficient supply of food, both
countries likewise worked with the private sector and removed impediments to the timely
delivery of goods. Both countries also implemented means to control the prices of goods
and prevent overpricing, as well as to prohibit the hoarding of essential goods, and sought
to penalize violators who unjustly took advantage of the situation.

However, some differences between the countries and their responses are also present.
First, while the Philippines implemented a price freeze on all basic and essential goods,
when it comes to the price of face masks, Malaysia allowed its price to increase by 2.5x
in order to encourage exporters to address its shortage in supply and to encourage
greater production of face masks. Moreover, Malaysia has been more transparent in the
breakdown of its budgetary allocations, as while the funds to be used in response to
COVID-19 have been allocated by the Malaysian government, the Philippine government
has yet to provide for a breakdown on the use of the Php 275 billion for its relief and
recovery efforts.

Analysis of the Philippine Response against COVID-19

Looking at the response of the Philippines, it seems that the government is on the right
track as to the programs being implemented. Considering the need to first and foremost

berita-kpdnhep/berita-terkini/2020/628-angkara-nak-untung-cepat-223-000-unit-topeng-muka-dirampas-
kpdnhep.html
28
Azli, Firdaus (23 March 2020). "COVID-19: Pencarum KWSP dibenar keluar RM500 sebulan bermula 1
April". Astro Awani. Retrieved from http://www.astroawani.com/berita-malaysia/covid-19-pencarum-kwsp-
dibenar-keluar-rm500-sebulan-bermula-1-april-234864
29
Medina, Ayman Falak (March 19, 2020). “Malaysia Issues Stimulus Package to Combat COVID-19
Impact.” ASEAN Briefing. Retrieved from https://www.aseanbriefing.com/news/malaysia-issues-stimulus-
package-combat-covid-19-impact/
address the basic needs of the people during a time where only the necessary sectors
are operational, the primary concern must be to ensure access to and the delivery of such
basic goods and services to the people. In giving primacy to the concern of transportation
and in cutting down on the red tape between the BOC and FDA through the BOSS, the
government has aided in the efforts to allow the goods needed by the people to be
delivered in a timely manner. Moreover, the implementation of a price ceiling and anti-
hoarding measures help ensure that there will remain sufficient and affordable foodstuffs
and other basic necessities for the people. Moreover, the declaration of a state of calamity
gave LGUs access to special funds that they are able to use for sanitation and provision
of relief goods for their constituents, thus ensuring that the basic and primary needs of
the people are addressed. In addition, efforts to procure the necessary medical supplies,
such as personal protective equipment (PPEs), and even the local manufacturing of
COVID-19 test kits have aided in ensuring that there is adequate response in dealing with
the challenges brought about by the ECQ lockdown implemented as a response to the
spread of COVID-19

Nevertheless, the Philippines also has its shortcomings in its response.

First, before the virus went viral, the Philippines had the chance to immediately act upon
the impending danger of such contagion, but the Philippines did not impose a travel ban
in order to lessen the entry to the country. With such lack of action, the Philippines have
failed to contain the virus within the metro manila. The first announcement of the lockdown
gave the citizens in metro manila time to evacuate to their provinces, without knowing if
they have the virus or not. As a result, the virus has spread in other parts of the country.
Such announcement also caused the panic-buying of residents from metro manila, which
have resulted in the failure of social distancing.

Second, the implementation by the LGU’s of the proposed plans of the government is
mediocre. The government may provide strong plans against this virus, but what is
needed is the implementation of such to the people. A major issue is the incompetency
of some LGU’s. Some residents of the rural areas have been complaining of not receiving
the relief goods promised by the BOSS, in addition, the LGU’s have not been receiving
complete packages from the government. With minimal resources to help the distribution
of relief goods, some citizens have been receiving less food from that of others. However,
as the heads of the local government in their area, some mayors have been doing an
exceptional job in helping their constituents. An example is the works of Marikina mayor
Marcy Teodoro who have been competent in the exercise of his duties to the people of
Marikina.
Lastly, there remains a lack of transparency in the use of funds. While Congress has
allowed the use of Php 275 billion for relief and recovery efforts, the breakdown of the
use of such funds, which must primarily be used to ensure adequate supply of food and
medical equipment, has yet to be released. Therefore, while efforts are ongoing, it is
unsure whether the funds are maximized, and property utilized for such purposes.

Programs that may be Adopted

In terms of the programs of Malaysia that may be adopted by the Philippines, the
Philippines may adopt the restructuring and rescheduling of loans, and Financial
assistance to low-income households. The Malaysian government has asked financial
institutions to provide financial relief to borrowers by rescheduling or restructuring loans,
as well as offering payment moratoriums. There will be a 100 percent stamp duty
exemption arising from these rescheduling, restructuring, or moratoriums. The exemption
is given from March 1, 2020, until December 31, 2020. With the Financial assistance,
Low-income households will begin receiving a monthly payment of 200 ringgit (US$45)
scheduled for May to be paid in March. Families will also receive an additional one-off
payment of 100 ringgit.30 With such measures, the Philippines would still help the average
Filipino by providing them financial relief in times of crisis. A reason why the ECQ is not
fully implemented is that majority of the Filipino citizen belong to the working class, hence
they require money for everyday living. The workers in metro manila tend to their work
even though there is a lock down because if they do not report to work, their everyday
sustenance for their families would become insufficient.

Another Program that the Philippines may adopt from Malaysia is the Implementing small
scale infrastructure projects. The government has allocated 2 billion ringgit (US$450
million) for infrastructure projects, such as maintaining roads, bridges, streetlights,
drainage systems, and water supplies, among others, at the federal, state, and local
government level. This is aimed at assisting small-scale contractors and encouraging
economic activities. From this budget, 200 million ringgit (US$45 million) is assigned to
the repair and maintenance of housing and public amenities whereas 150 million ringgit
(US$33 million) will go towards the maintenance of alternative electricity and water supply
in rural areas. With the small scale infrastructure projects, the Philippines may construct
various utility buildings in response of the Covid 19. With the lack of testing centers, the
determination of infected persons from the citizens and those who belong to the PUI’s
and PUM’s. this would help the citizens by providing them with the appropriate treatment
and the assurance whether or not they are infected with the virus. Such detection of the
virus will be easy despite the number of the population of the Philippines. The government
may also establish buildings and medical facilities that will be focused on the treatment

30
Supra.
of the persons infected. With the project of allocating funds into small scale infrastructure
projects, this may also help the medical front liners by establishing a resting place for the
hardworking folk, fighting against the virus. Such action would show the competence and
support of the government to the medical front liners and may result in the increase of
their morale in their performance of their duties.

Part II - China’s Liability under International Law

China’s failure to disclose information of the virus at the earliest possible time, and its
failure to immediately stop its nationals from travelling internationally, are actionable
wrongs under international law.

Article 231 of Chapter I of the Responsibility of States for Internationally Wrongful Acts[1]
provides that there is an internationally wrongful act of a State when its conduct
constitutes a breach of an international obligation.

Pursuant to Article 732 of the International Health Regulations (2005), China, as a State
Party to the United Nations, has the obligation to provide the World Health Organization
(WHO) all relevant health information regarding any unexpected or unusual public health
event within its territory which may constitute a public health emergency of international
concern. Article 633 of the same provides that, each State Party shall notify the World

31
Article 2 - Elements of an internationally wrongful act of a State. There is an internationally wrongful act
of a State when conduct consisting of an action or omission: (a) is attributable to the State under
international law; and (b) constitutes a breach of an international obligation of the State.

32
Article 7 - Information-sharing during unexpected or unusual public health events. 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 WHO all relevant
public health information. In such a case, the provisions of Article 6 shall apply in full.
33
Article 6 – Notification. 1. Each State Party shall assess events occurring within its territory by using the
decision instrument in Annex 2. Each State Party shall notify WHO, by the most efficient means of
communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of
public health information, of all events which may constitute a public health emergency of international
concern within its territory in accordance with the decision instrument, as well as any health measure
implemented in response to those events. If the notification received by WHO involves the competency of
the International Atomic Energy Agency (IAEA), WHO shall immediately notify the IAEA.

2. Following a notification, a State Party shall continue to communicate to WHO timely, accurate and
sufficiently detailed public health information available to it on the notified event, where possible including
case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions
affecting the spread of the disease and the health measures employed; and report, when necessary, the
Health Organization within 24 hours of assessment of public health information, of all
events which may constitute a public health emergency of international concern within its
territory. Such notification must consist of accurate and sufficiently detailed public health
information available to it. This includes case definitions, laboratory results, source and
type of the risk, number of cases and deaths, conditions affecting the spread of the
disease, and the health measures employed.

In this case, China only reported to the WHO China Country Office, the several cases of
unusual pneumonia contracted by 11 million people from an unknown virus, on December
31, 2019.34 According to its report, all cases were confined only in the port city of Wuhan,
specifically, the Wuhan Food Market. The earliest case was purportedly only on
December 12 of that same year.35 However, according to a published study conducted
by infectious diseases experts,36 more than a third of patients had no connection with the
Wuhan food market, including the first case.37 Further, data suggests that the virus could
have been moving through Wuhan as early as October 2019.

Hence, due to the delay and false report of China to the WHO, it was only on January 30,
2020 that the latter declared coronavirus a global emergency when the death toll in China
jumped to 170, with 7,711 cases reported in the country, where the virus had spread to
all 31 provinces.38 For purposes of accounting for differences in reported statistical data,
it is important to note that in China, people who test positive for the virus but don’t have
any symptoms are not classified as confirmed cases. This runs counter to the practice in
countries like South Korea, Japan, and Singapore, where all patients who test positive

difficulties faced and support needed in responding to the potential public health emergency of international
concern.

34
Al Jazeera (n.d.). “Timeline: How the new coronavirus spread.” AJ Impact. Retrieved on 04 April 2020
from<https://www.aljazeera.com/news/2020/01/timeline-china-coronavirus-spread-
200126061554884.html>.
35
Julia Belluz (February 10, 2020). Vox. “China hid the severity of its coronavirus outbreak and muzzled
whistleblowers — because it can.” Breaking News. Retrieved on 04 April 2020 from
<https://www.vox.com/2020/2/10/21124881/coronavirus-outbreak-china-li-wenliang-world-health-
organization>.
36
Prof. Chaolin Huang,M.D., et al. (February 15, 2020). The Lancet. “Clinical features of patients infected
with 2019 novel coronavirus in Wuhan, China.” Volume 395, Issue 10223, p. 497-506. Retrieved on 04 April
2020 from < https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30183-5/fulltext>.
37
Outbreak’s Index.
38
Bloomberg News (March 31, 2020). “China Reveals 1,541 Symptom-Free Virus Cases Under Pressure.”
Politics. Retrieved on 03 April 2020 from <https://www.bloomberg.com/news/articles/2020-03-31/china-
reveals-1-541-symptom-free-virus-cases-under-pressure>.
are included in official tallies of total cases, regardless of whether they have symptoms
such as a fever or cough.39

Proper parties, causes of action, and forum

As to the proper parties, Article 4640 of Chapter I, Part Three of RSIWA provides that
where several States are injured by the same internationally wrongful act, each injured
State may separately invoke the responsibility of the State which has committed the
internationally wrongful act.

This means that any State affected or injured by the spread of the coronavirus disease
(COVID-19), may file a case against China.

As to the causes of action against China, it would be for the violation of several
International Health Regulations provisions. Specifically, and as discussed above, its
failure to comply with its obligation to report timely and truthful information, as mandated
under Article 6 and 7 of Chapter One thereof. A state may also allege that China violated
Article 18 of the Vienna Convention on the law of treaties, which provides that, a State
which has signed or ratified a treaty has the obligation to refrain from acts which would
defeat the object and purpose of that treaty prior to its entry into force.41

Other causes of action may also be that China violated the following provisions of the
WHO Constitution:42

Article 63 which provides that each Member shall communicate promptly to the
Organization important laws, regulations, official reports and statistics pertaining
to health which have been published in the State concerned.

Article 64 which provides that each Member shall provide statistical and
epidemiological reports in a manner to be determined by the Health Assembly.

39
Ibid.
40
Article 46 - Plurality of injured States. Where several States are injured by the same internationally
wrongful act, each injured State may separately invoke the responsibility of the State which has committed
the internationally wrongful act.
41
Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969.
Retrieved on 04 April 2020 from <https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-
1155-I-18232-English.pdf.
42
Constitution of the World Health Organization. Adopted by the International Health Conference held in
New York from 19 June to 22 July 1946, signed on 22 July 1946 by the representatives of 61 States (Off.
Rec. Wld Hlth Org., 2,100), and entered into force on 7 April 1948. Retrieved on 04 April 2020- from
<https://www.who.int/governance/eb/who_constitution_en.pdf>.
As to the proper forum, insofar as the COVID-19 case is concerned, any State with a
cause of action against China, may file a case before the World Health Assembly, and
subsequently, the International Court of Justice, unless the disputants agree to another
mode of settlement.

Article 7543 of Chapter XVII of the WHO Constitution and Article 22 of the International
Convention on the Elimination of All Forms of Racial Discrimination, provides that, any
dispute between two or more States Parties with respect to the interpretation or
application of this Convention, which is not settled by negotiation or by the procedures
expressly provided for in this Convention, shall, at the request of any of the parties to the
dispute, be referred to the International Court of Justice for decision, unless the disputants
agree to another mode of settlement.

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Article 75. Any question or dispute concerning the interpretation or application of this Constitution which
is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice
in conformity with the Statute of the Court, unless the parties concerned agree on another mode of
settlement.