JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

ARGUMENTS ADVANCED

I. THAT THE CONDUCT OF COMMUNIST REPUBLIC OF MANDARIN IN INFORMING THE

INTERNATIONAL HEALTH ORGANIZATION ABOUT THE PANDEMIC IS IN VIOLATION OF

ARTICLE 6 & 7 OF INTERNATIONAL HEALTH REGULATIONS 2005

It is humbly submitted before the Hon’ble Court that the Article 211 of the Constitution of
International Health Organization [hereinafter, “IHO”], stipulates that the Health Assembly
has the authority to adopt regulations such as the International Health Regulations 2005
[hereinafter, “IHR”]2, designed to prevent the international spread of a disease. Article 223 of
the Constitution states that such regulations shall come into force for “all Members” once they
have been notified. Communist Republic of Mandarin [hereinafter, “Mandarin”], being a
member of IHO4 and not falling under any exceptions to the provision, is bound by the IHO
constitution and therefore, by the IHR.

In the present case, Mandarin has breached its International Obligations under (A)Article 6,7
& 12 of IHR; (B)Article 63, 64 & 37 of the IHO Constitution and (C) is liable under Article
12, 14 & 34 of the Responsibility of states for Internationally Wrongful Acts, 2001.

A. Mandarin has failed to abide by the International Health Regulations 2005

It is humbly presented before the Hon’ble court that Mandarin has violated Article 6 & 7 of
IHR through [1] exhibiting wrongful conduct through misreporting of facts; and [2]
acknowledging the application of IHR in its territory and yet, breaching its provisions.

1. That there was wrongful conduct through misreporting of facts by Mandarin

It is humbly stated and submitted before the Hon’ble court that the facts reported by Mandarin
were [a] delayed, [b] misrepresentative, and [c] the conduct of Mandarin authorities was
grossly negligent.

i. Mandarin has delayed the reporting of facts

1
WORLD HEALTH ORGANIZATION CONST. art.1 [hereinafter, “WHO”].
2
International Health Regulations (2005), 3rd ed. GENEVA: WORLD HEALTH ORGANIZATION [WHO] (2008),
https://www.who.int/publications/i/item/9789241580496.
3
WHO CONST. art. 22.
4
COUNTRIES, WORLD HEALTH ORGANIZATION [WHO], (Apr. 20, 2020), https://www.who.int/countries.

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The first known case of coronavirus is dated to November 17, 2019 or possibly earlier.5 The
admission data of the patients checked for laboratory-confirmed 2019-nCoV infection dates
from December 16, 2019 to January 2, 2020.6 The laboratory assessment data of patients is
available from December 15, 2019 to January 1, 2020.7 On December 30, 2019, a Mandarin
ophthalmologist, has been reported to have used the WeChat application to inform his alumni
group about a SARS-like illness.8 Multiple reports of an anonymous lab technician claiming
the new coronavirus to be 87% similar to Severe Acute Respiratory Syndrome (SARS) have
been released.9 On December 27, 2019, various genome companies reported the disease to be
a dangerous SARS-like-virus.10 However, it was on 31st December 2019, that the IHO
Mandarin Country Office was informed of cases of pneumonia’s unknown etiology detected
in Wuhan City.11

Therefore, it is clear that Mandarin had delayed the reporting of information to IHO in
contravention of Article 6 of the IHR.

ii. Mandarin has reported misleading facts

It is humbly submitted that concluding evidence with regard to human-to-human [hereinafter,

“HTH”] transmission was detected in Mandarin in mid-December.12 On 25th December 2019,
2 medical hospitals, suspected to have been infected by coronavirus, were quarantined. 13 A
study, showing only 27 of 40 patients having direct access to the Huanan seafood market,
implied HTH transmission of the virus. Affected family clusters were found too.14 However,

5
Md. Tanveer Adilet al., SARS- COV-2 and the pandemic of COVID 19, 97 POSTGRAD. MED. J. (2021).
6
Chaolin Huang et al., Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China, 395
THE LANCET, 497-506 (2020).
7
Li Li Ren et al., Identification of a novel coronavirus causing severe pneumonia in human: a descriptive study,
133 CHIN MED J, 1015-1024 (2020).
8
Gerry Shih et al., early missteps and state secrecy in china probably allowed the coronavirus to spread farther
and faster, THE WASHINGTON POST, Feb. 1, 2020, https://www.washingtonpost.com/world/2020/02/01/early-
missteps-state-secrecy-china-likely-allowed-coronavirus-spread-farther-faster/.
9
Id.
10
Heng Li et al, Coronavirus disease 2019 (COVID-19): current status and future perspectives, 55 I NT J
ANTIMICROB AGENTS, (May 2020), https://www.washingtonpost.com/world/2020/02/01/early-missteps-state-
secrecy-china-likely-allowed-coronavirus-spread-farther-faster/.
11
China publishes timeline on Covid 19 international sharing, int’l cooperation, X INHUA, (Apr. 13, 2021),
http://www.xinhuanet.com/english/2020-04/06/c_138951662.htm.
12
Qun Li et al., Early Transmission Dynamics in Wuhan, China, of Novel Coronavirus– Infected Pneumonia,
382 N ENGL J MED, 1199-1207 (2020).
13
Jeremy Page, How it all started: China’s early Coronavirus missteps, WALL STREET JOURNAL, (Apr. 17,
2020), https://www.wsj.com/articles/how-it-all-started-chinas-early-coronavirus-missteps-11583508932.
14
CHAOLIN, supra note 6.

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only on January 14, 2020, in accordance with the information received, IHO declared that
preliminary investigations conducted by the Mandarin authorities have found no clear evidence
of HTH transmission of the Novel Coronavirus …in Wuhan."15

Downplaying of the no. of cases in Mandarin has also been reported.16Therefore, it is ipso facto
evident that Mandarin authorities have mislead the world with inappropriate information,
jeopardizing the lives of millions.

iii. Negligent conduct has been exhibited by Mandarin state authorities

It is humbly stated & submitted that on 25th January 2020, false assurances led thousands of
families to gather on Lunar New Year banquet which lasted for around 5 weeks.17 ‘Wuhan
Public Security Bureau’ took measures to arrest whistle-blowers who tried to warn people
about the virus.’18 Further, although Mandarin had given permission for a second IHO-led
mission but had refused access to crucial data on the earliest patients recorded with COVID-
19.19 An emergency notice was also issued by ‘Wuhan Municipal Health Commission’.20
Further, researchers report that the Mandarin social media was censored with regards to
keywords about the coronavirus.21 On January 3, 2020, ‘Mandarin’s National Health
Commission’ restricted publication of information related to the disease and instructed that any
samples with labs be destroyed.22‘Wuhan City Health Commission’ issued a statement

15
Reuters staff, Timeline: China and World Health Organization during COVID-19 crisis, REUTERS,(Apr. 13,
2021, 10:19 A.M.), https://www.reuters.com/article/us-health-coronavirus-who-china-timeline-
idUSKBN29I0FR.
16
Charlie Campbell & Amy Gunia, China says it’s beating Coronavirus. But can we believe its numbers?,
TIME, (Apr. 1, 2020).
17
HENG, supra note 10.
18
Jing bao Nie& Carl Elliott, Humiliating Whistle-Blowers: Li Wenliang, the Response to Covid-19, and the
Call for a Decent Society, 17 J BIOETH INQ. 543-547 (2020).
19
Javier C. Harnandez& James Gorman, On W.H.O. Trip, China Refused to Hand Over Important Data, N.Y.
TIMES, (Feb. 13, 2021, 3: 48 P.M.),https://www.nytimes.com/2021/02/12/world/asia/china-world-health-
organization-coronavirus.html.
20
Pnuemonia of unknown cause – China, WORLD HEALTH ORGANISATION [WHO], (Jan 5, 2020),
https://www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/en/.
21
George Cooper, Chinese state censorship of Covid 19 represents a looming crises for academic publishers,
LSE BLOGS, (Apr. 14, 2021), https://blogs.lse.ac.uk/impactofsocialsciences/2020/04/24/chinese-state-censorship-
of-covid-19-research-represents-a-looming-crisis-for-academic-publishers/.
22
XINHUA, supra note 11.

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claiming that no new cases were found as after January 3,2020.23 However, this statement was
in direct contravention with the existing number of cases.24

Therefore, it is ipso facto evident that Mandarin has exacerbated the spread of the disease
through negligent conduct.

2. Mandarin has acknowledged the application of provisions of IHR in its territory by

virtue of Article 2 & 4

It is humbly submitted that “to prevent, protect against, control and provide a public health
response to the international spread of disease”, IHR were implemented.25 Mandarin
government has declared that the IHR apply to the entire territory of the Communist Republic
of Mandarin, wherein the ‘Ministry of Health’ is designated as Mandarin's National Focal
Point, pursuant to Paragraph 1 of Article 4 of the IHR.26 Mandarin government has also issued
declaration with regard to the same.27

3. Mandarin has breached IHR regulations under Article 6 &7

It is humbly submitted that IHO member states revised the IHR in 2005 to achieve ‘global
health security’ by broadening the scope of the regulations, and expanding the obligations of
states parties that granted IHO unprecedented authority vis-à-vis sovereign states to deal with
disease events.28

i. Breach of legal obligation under Article 6

Article 6, paragraph 1 of the IHR stipulates each state party to notify IHO, …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 …as well as any health measure implemented in response to those events.

23
Taisheng Li et al., Clinical observations and management of Covid 19 patients, 9 EMERGE MICROBES INFECT,
687-690 (2020).
24
WHO Coronavirus (Covid 19) dashboard, WORLD HEALTH ORGANIZATION [WHO], (April 2020),
https://covid19.who.int/.
25
I.H.R. (2005), supra note 2, art. 2.
26
I.H.R. (2005), supra note 2, art. 4.
27
Statement by the Chinese Government: "International Health Regulations" apply to the entire territory of
China, CENTRAL GOVERNMENT PORTAL, XINHUA, (May 14, 2007), http://www.gov.cn/jrzg/2007-
05/14/content_ 614312.htm.
28
David P Fidler, The Covid 19 pandemic, Geopolitics and International Law, J. INT. HUMANIT. LEG. STUD.,
237-248 (2020).

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This clearly demonstrates the blatant breach of this provision by Mandarin in reporting the
pandemic to the IHO within 24 hours and in notifying IHO of the health measures taken by it
in pursuance of such events. Such violation of an international obligation has put public at large
in jeopardy and has exacerbated the spread of the disease resulting in loss of lives of millions
of people across the world.

ii. Breach of legal obligation under Article 7

Article 7 of the IHO regulations clearly state that 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 to WHO all
relevant public health information. The data presented above is cognizant to the fact that
Mandarin acted in contravention of such provisions and despite having evidence of a new virus
from an ‘unknown source’ befitting the definition of ‘unexpected or unusual event’ occurring
in its territory, failed to inform IHO of the same. Henceforth, Mandarin has violated Article 7
of the IHR.

Therefore, it is humbly submitted to the Hon’ble court that by virtue of violation of Article 6
& 7 of IHR, the State has disrupted IHO from efficiently performing its duties and taken lightly
a Public Health Emergency of International Concern.

B. Conduct of Mandarin is in contravention with general principles of international

law

It is humbly submitted to the Hon’ble Court that in pursuance with Article 18 of the Vienna
Convention on the Law of treaties29, a State is obliged to refrain from acts which would defeat
the object & purpose of a treaty. Also, refusal to fulfill a treaty obligation involves ‘international
responsibility’.30 In the Rainbow Warrior case,31 the arbitral tribunal stressed that “any violation
by a State of any obligation, of whatever origin, gives rise to State responsibility”32. The violation

29
Vienna Convention on the Law of Treaties, 23 May, 1969, 1155 U.N.T.S. 331.
30
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 228.
31
Case concerning the difference between New Zealand and France concerning the interpretation or application
of two agreements concluded on 9 July 1986 between the two States and which related to the problems arising
from the Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990).
32
Id, p. 251, ¶ 75.

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of the articles of IHO Constitution are a disruption to the attainment of its objective, i.e., the
attainment by all peoples of the highest possible level of health.33

1. The conduct of Mandarin stands in contravention to Article 63 & 64 of IHO

Constitution

It is humbly submitted to the Hon’ble court that Article 6334& 6435 of the IHO Constitution
which stipulate ‘prompt’ communication to the IHO of essential official reports & statistics
pertaining to health that have been published in the member State, have also been violated.
Here, along with Article 6 &7 of IHR, these provisions have also been violated as Mandarin
unreasonably and deliberately delayed the information regarding Covid-19 from reaching the
IHO, and through its misleading information has unlawfully influenced its conduct in support
of the state violating Article 37 as well.

2. Mandarin is liable under the Responsibility of states for Internationally Wrongful

Acts, 200136

International Law Commission’s (‘ILC’ hereinafter) Draft Articles on Responsibility of

States for Internationally Wrongful Acts, the portions of which the Hon’ble Court has
determined to be customary international law,37 Article 1 states that every internationally
wrongful act of the state entails the international responsibility of that State”38, &Article 2
stipulates the fulfilment of the following two essentials to make the state liable under this:

i. That the conduct is attributable to the State under international law; &
ii. it constitutes a breach of an international obligation of the State.39
i. Establishing attributability of Mandarin under international law

33
WHO CONST. art. 1.
34
WHO CONST. art. 63.
35
WHO CONST. art. 64.
36
I.L.C., Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N. Doc. A/56/10
(2001).
37
Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), 1977 I.C.J. 7 34, , No. 14, ¶35.
38
I.L.C. DRAFT ARTICLES, supra note 37, art. 1.
39
I.L.C. DRAFT ARTICLES, supra note 37; Bodansky & Crook, Introduction and Overview, 96 AM. J. INT'L L.773
(2002); Crawford, Revising the Draft Articles on State Responsibility, 10 EUR. J. INT'L .L. 435 (1999); Allott,
State Responsibility and the Unmaking of International Law, 29 HARV. INT'L. L.J. 1 (1988); Combacau &
Alland, "Primary" and "Secondary Rules in the Law of State Responsibility: Categorizing International
Obligations, 16 NETH. Y. B. INT'L. L. 81 (1985).

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It is humbly submitted before the Hon’ble Court that for the purpose of establishing
‘attributability’ on part of the member state, the ambit of the ‘conduct of the state’ as per Article
2 shall be in consonance with Article 4 of the Act40, wherein the ‘the conduct of any State
organ shall be considered an act of that State under international law’. No distinction is made
for this purpose between legislative, executive or judicial organs.41This principle has long been
recognized in judicial decisions.42 Therefore, all acts or omissions by the Wuhan Public
Security Bureau, Wuhan Municipal Health Commission, Mandarin’s National Health
Commission (NHC) & Wuhan City Health Commission as stated under Contention 1 sub-
contention 3 of the written submissions will be attributable to Mandarin.

Furthermore, the conduct of the state is in breach of Article 12 of the ILC draft Articles as
there is a breach of an international obligation by Mandarin wherein the act of the State is not
in conformity with what is required of it by that obligation43. Herein, the state has failed to
oblige by IHR 6 & 7, and the acts of the state organs were not in conformity with what was
required under these obligations.

Mandarin is also liable under Article 14 of the ILC Draft Articles as Mandarin continued to
downplay the reporting of numbers affected by the pandemic, suppressed the media from
reporting the facts & hence, the effects of such a breach have continued.44

ii. The existence of breach of an international legal obligation

Through its conduct in the handling of pandemic, Mandarin has flouted many binding legal
obligations including the transboundary harm principle, articles of the IHO Constitution & the
IHR 2005. Thus, based on these violations the state is responsible for such conduct & should
repair the damage done by it. There being a breach of such international obligations has been
duly corroborated with the facts above.45

iii. Reparation for the affected states

40
I.L.C. DRAFT ARTICLES, supra note 37.
41
Salvador Commercial Company case, (U.S. v. Repb. of Salv.), In U.S. Department of States, Papers Relating
to the Foreign Relation of the United States, (1903) 859-73.
42
Rainbow Warrior Case (NZ v. Fr.) Reports of International Arbitral Award, 20 , pg.215-284; Youmans cliam
(United States Mexico Claims Tribunal) UNRIAA, 4, pg. 110 (1916), at pg. 116; United States Diplomatic and
Consular Staff in Tehran (U.S. v. Iran) 1980 ICJ Rep.3.
43
I.L.C., Draft Declaration on Rights and Duties of States, 56 Y.B. INT'L L. COMM'N 178 (1949), art. 12.
44
Id. art. 14.
45
Id. art. 2, ¶ 9–10.

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States that commit an internationally wrongful act are obligated to make full reparation for the
injury caused by the act.46 Since the breach of IHR 6 & 7 and the violation of Article 63 and
64 of IHO Constitution are attributable to Mandarin, therefore, Mandarin must make
reparations to account for all of the consequences of the illegal act, both material & moral.47As
was the case in Armed Activities48, Mandarin is bound to make reparations for the harm it
caused to all the states as a consequence of perpetration of an internationally wrongful act. 49

It is humbly submitted that Draft Article50 on State Responsibility defines full reparation as
‘restitution, compensation & satisfaction, either singly or in combination.’ And restitution as
to re-establish the situation which existed before the wrongful act was committed, that is, to
establish the status quo ante. In cases where that is no longer possible, the offending state pays
compensation “for loss sustained which would not be covered by restitution in kind or payment
in place of it”.51 Such assessment of damages may also come with an award of satisfaction, or
a formal apology & an assurance that its unlawful conduct will not be repeated.52

Therefore, it is most respectfully submitted owing to the grave & substantial damage caused to
the affected countries, that there is a direct link between the breach of the international
obligation & its aggravated impact on the spread of the pandemic. This fulfils the “sufficiently
direct & certain causal nexus test” established by the International Court of Justice
[hereinafter, “ICJ”] in the Bosnian Genocide Case 53, that the impact of pandemic would have
certainly been diminished if Mandarin had complied with the treaty obligations. This is
corroborated by a research study wherein it was found that if Mandarin had reported the
relevant information 1, 2 or 3 weeks earlier, the no. of people affected by the virus would have
been reduced by 66%, 86% & 95% respectively.54

46
I.L.C. Draft Articles, supra note 37,art. 31; Factory at Chorzòw (Ger. v. Pol.), 1926 P.C.I.J. (ser. A) No. 7, pg
44 (May 25).
47
Factory at Chorzòw (Ger. v. Pol.), Jurisdiction, 1927 P.C.I.J. (ser. A) No. 9 (July 26); Chorzów factory,
Merits, 1928 P.C.I.J (ser. A) No. 13 (Dec. 16); Rainbow Warrior (N.Z. v. Fr.), 20 R.I.A.A. 215, p. 110 (1990)
48
Armed Activities on the Territory of the Congo (Congo v. Uganda) 2003 I.C.J. 3 (Jan.29).
49
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 50, June 26, 1945, 3 Bevans 1179; Armed Activities
case, supra note 49 at p. 261; Gabčíkovo-Nagymaros Case, supra note 38 at p. 83.
50
I.L.C. DRAFT ARTICLES, supra note 38, art. 34.
51
Chorzow Factory Case (Germany v. Pol.) 1928 P.C.I.J. 47 (ser. A) N° 17 (Sept. 13).
52
LaGrand Case, (Germany v. U.S.) 2001 I.C.J. Rep. p. [Forthcoming], General List No. 104 (June 27).
53
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Yugoslavia), I.C.J. Reports 1996, p. 595 (July 11).
54
Shengjie La et al., Effect of non-pharmaceutical interventions for containing the COVID-19 outbreak in
China, MEXRXIV: THE PRE-PRINT SERVER FOR HEALTH SCIENCES, (Apr. 14, 2020 12:30 P.M.).
https://www.medrxiv.org/content/10.1101/2020.03.03.20029843v3.

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Conclusively, it is submitted that the conduct of Mandarin in informing the IHO about the
pandemic is in violation of article 6 & 7 of IHR and breach of Article 63& 64 of IHO
Constitution, making it responsible for an Internationally Wrongful Act under ‘Responsibility
of states for Internationally Wrongful Acts’ (2001).

II. THAT THE REPUBLIC OF MANDARIN IS LIABLE UNDER ‘TRANSBOUNDARY HARM’ PRINCIPLE
BECAUSE OF ITS ECONOMIC POLICIES AND LAWS REGULATING WET MARKETS IN MANDARIN.

It is humbly submitted before the Hon’ble Court that the principle of Transboundary Harm,
mandates a state party to ensure that the activities carried out within its jurisdiction do not harm
the environment55 and territory of other states.56. Article 2(c) of the International Law
Commission’s Draft articles on Prevention of Transboundary Harm from Hazardous Activities,
2001 (hereinafter “Draft Articles”) defines “Transboundary harm” as the harm caused in the
territory of or in other places under the jurisdiction or control of a State other than the State of
origin, whether or not the States concerned share a common border57. This obligation is a
customary international law as affirmed in the Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons.58

It is humbly submitted (A) that the conduct of Mandarin has satisfied the essential ingredients
of transboundary harm principle of the Draft Articles; (B) that Mandarin violated its obligation
to prevent transboundary harm of COVID-19 through lack of due diligence under Articles 3,
7, 8, 9 and 10 of the Draft Articles; and therefore(C)that Mandarin is liable to pay damages to
the affected States for the spread of COVID-19

A. That the conduct of Mandarin has satisfied the essential ingredients of Transboundary
Harm Principle of the Draft Articles

A violation of this obligation has four elements as enshrined under Article 1 of the International
Law Commission’s Draft articles (1)the harm must result from human activity not prohibited
by international law; (2) there must be a physical relationship between the activity concerned
and the harm; (3) there must be transboundary transfer of the harmful effect; and (4) the activity

55
XUE HANQIN. TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, CAMBRIDGE STUDIES IN INTERNATIONAL
AND COMPARATIVE LAW 14 (Cambridge Univers1ity Press, 2003).
56
R. Buchan, Cyberspace, Non-State Actors and the Obligation to Prevent Transboundary Harm. J. CONFL.
SECUR. LAW, 21(3), 429–453, (2016).
57
I.L.C. Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, art. 1, UN Doc.
A/RES/56/82, 56 UN GAOR Supp (No. 49) at 498, Supp. (No. 10) A/56/10 (V.E.1) (2001).
58
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons 1996 I.C.J. 254, (July 8).

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involves “a risk of causing significant harm”.59 All four elements are present to make Mandarin
liable under the ‘transboundary harm’ principle.

1. The harm was a result of human activity not prohibited by international law

It is stated and submitted before this Hon’ble Court that the spread of the zoonotic coronavirus
was a result of human negligence in handling of animals in wet markets especially the Huanan
Seafood Wholesale Market, in Wuhan, China.60and regulatory laxity in enforcement of
appropriate wildlife protection laws by the Government of Mandarin. Within these wet
markets, numerous animals are held together in confined spaces. This setting can allow for the
exchange and mixing of multiple different bodily fluids.61 Human handling of these animals
allows for the viruses contained within these reservoirs to spill over into the human population.

After the 2003 outbreak of SARS, the central and local governments reportedly tried to tackle
the wildlife trade, banning the sale of some wild animals such as civet cats, but many of the
bans either weren’t enforced or were quietly removed after the SARS epidemic subsided.62
Laxity in regulation and enforcement of Wildlife Protection Law, 198863 and Animal Epidemic
Prevention Law64 are other human induced reasons behind the spread of COVID-19.

i. There exists a physical relationship between the activity concerned and harm caused.

The human negligence in handling of animals in Mandarin’s wet markets and lack of
appropriate mechanism for enforcement of wildlife protection laws led to the spread of
coronavirus in Mandarin and other countries.

ii. There was a transboundary transfer of the harmful effect.

The spread of the coronavirus from the territory of Mandarin to the rest of the world is
substantiated by the fact that currently, the coronavirus has spread to more than 192 countries

59
I.L.C. DRAFT ARTICLES, supra note 58; OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE
336 (Springer 1991).
60
R.G. Webster, Wet markets—a continuing source of severe acute respiratory syndrome and influenza?, 363,
LANCET, 234-236, (2004), https://doi.org/10.1016/S2213-2600(20)30514-2.
61
A. ALONSO AGUIRRE ET AL., Illicit Wildlife Trade, Wet Markets, and COVID‐19: Preventing Future
Pandemics, WORLD MED HEALTH POLICY (2020).
62
Wang Chen & Jiang Yifan, The Legal Proposals Shaping the Future of Wildlife in China, CHINA DIALOGUE
(Apr. 3, 2020), https://perma.cc/BHT6-QT7V.
63
Wildlife Protection Law (adopted by the Standing Committee of the National People’s Congress (NPCSC) on
Nov. 8, 1988, last amended Oct. 26, 2018), https://perma.cc/Q7BS-3HAZ (China).
64
Animal Epidemic Prevention Law (adopted by the NPCSC on July 3, 1997, last amended Apr. 24, 2015) art.
20, https://perma.cc/69SM-V2NX (China).

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so far as a result of inter-country travel of citizens65, trade of goods66, surface-to-surface

contact67 and respiratory secretions68 with more than 140 million cases69 worldwide.

iii. The activity involves “a risk of causing significant harm”

It is humbly submitted before the Hon’ble Court that the ILC Draft provides that the term
‘significant’ is to include harm to living resources, a hazard to human life, or loss of
property.70 The fact that wet markets accompany the risk of causing harm to human life can be
shown by the SARS outbreak of 2003. Regardless, the Mandarin has failed to enact strong
regulations and instead encouraged the trade, consumption, and commercial use of wild
animals through its markets. The harm must lead to a real detrimental effect on matters such
as, for example, human health, industry, property, environment or agriculture in other States71.
In the present case, “significant harm” is the dilapidation of world economies, and global threat
to the health and life of people due to the transboundary transmission of COVID-19 pandemic.

It is humbly submitted that in Trail Smelter Arbitral Decision72, it was held no State has the
right to make use of its own territory in any manner that might cause serious and clearly
provable damage to the territory of another State.73 The right to exploit and explore, conserve
and manage natural resources74 must be exercised without causing transboundary harm, or

65
Timothy W. Russell et al., Effect of Internationally Imported Cases on Internal Spread of COVID-19: A
Mathematical Modelling Study, 6 THE LANCET 12, 1 (Jan. 2021).
66
Org. for Economic Co-operation and Development [OECD], OECD Policy Responses to COVID-19: COVID-
19 and International Trade- Issues and Action, at 2, https://read.oecd-ilibrary.org/view/?ref=128_128542-
3ijg8kfswh&title=COVID-19-and-international-trade-issues-and-actions (Jun. 12, 2020).
67
COVID-19 Transmission- Up In Air, 8 THE LANCET 1159 (Oct. 29, 2020), https://doi.org/10.1016/S2213-
2600(20)30514-2.
68
Scientific Brief, Modes of Transmission of Virus Causing COVID-19: Implications for IPC Precaution
Recommendations, WORLD HEALTH ORGANISATION [WHO] (2020), https://www.who.int/news-
room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-
recommendations.
69
WHO: Coronavirus (Covid 19) Dashboard, WORLD HEALTH ORGANISATION [WHO], (Mar. 31,
2021),https://covid19.who.int/.
70
Report of the International Law Commission on the Work of its Fifty-Third Session, 152, U.N. Doc. A/56/10
(2004).
71
ARIE TROUWBORST, PRECAUTIONARY RIGHTS AND DUTIES OF STATES, 25, (Brill, 2006).
72
Trail Smelter Arbritral (U.S.v. Can.), Arb Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941).
73
Id; see also, HAROLD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN
INTERNATIONAL ENVIRONMENTAL LAW, 342-44, (Springer, 1994).
74
Convention on the Law of the Sea, art. 56, 1982, 1833 U.N.T.S. 397.

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damage upon a State caused by the acts of another in the territory of the State of origin as stated
in Corfu Channel case.75

Therefore, the State of Mandarin is responsible for causing transboundary harm of COVID-19
as the essential conditions for ascertaining of no-harm principle as evolved from the
interpretation of Draft Articles are hereby satisfied.

B. That Mandarin violated its obligation to prevent transboundary harm of COVID-

19 through lack of due diligence under Articles 3, 7, 8, 9 and 10 of the Draft Articles

It is humbly submitted that Mandarin owes a duty of due diligence concerning the operation of
wet-markets and containment of coronavirus within its territory. The concept of due diligence
is a general principle of international law and every State is obliged to exercise due diligence
to prevent transboundary harm, as this Court notes in San Juan River.76 In the Alabama Case,
a due diligence obligation was described as, such care as Governments ordinarily employ in
their domestic concerns77.

1. That Mandarin has violated Article 3, 9 and 10 of the Draft Articles

It is humbly submitted that Article 3 of ILC Draft on Transboundary Harm, provides that the
state of origin shall take all appropriate measures that are “proportional to the degree of risk”
to prevent significant transboundary harm or at any event to minimise the risk thereof.78 This
obligation arises from the moment States “know” or “should have known” about the harm or
the risk thereof.79

It is humbly stated and submitted before this Hon’ble Court that Mandarin is liable for dearth
of due diligence in maintaining of wet markets and illegal wildlife trade that was held
responsible for spread of a similar SARS outbreak of 200280. Such markets selling wild animal
meat and live animals without proper hygienic and veterinary measures pose very high risks of

75
Report of the International Law Commission, supra note 60; Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J.
4, 22; Trail Smelter Case, supra note 75.
76
Case concerning construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, I.C.J Reports (2015) 1.
77
Report of International Arbitral Awards, Alabama claims of the United States of America against Great
Britain., https://legal.un.org/riaa/cases/vol_XXIX/125-134.pdf.
78
I.L.C. DRAFT ARTICLES, supra note 58, art.3.
79
Id.
80
Severe Acute Respiratory Syndrome (SARS), Dashboard, WORLD HEALTH ORGANISATION [WHO],
https://www.who.int/health-topics/severe-acute-respiratory-syndrome#tab=tab_1.

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disease emergence and zoonotic spread.81 The revised Wildlife Protection Law, 1988, and
Animal Epidemic Prevention Law, suffer from numerous issues with licensing, approvals,
quarantine inspection, and law enforcement related to wet markets82 despite the harsh
experience of the SARS outbreak and ban on illegal trade of endangered species inter alia
pangolin (believed to be the host of SARS-CoV-2 virus83) under the Convention on
International Trade in Endangered Species of Wild Flora & Fauna, 1975, that has been ratified
by Mandarin .

It is humbly submitted before the Hon’ble Court that the changed timeline of coronavirus
transmission on the website of IHO reads:

“December 31, 2019: WHO’s Country Office in the People’s Republic of

China picked up a media statement by the Wuhan Municipal Health
Commission from their website on cases of ‘viral pneumonia’ in Wuhan,
People’s Republic of China.”84

That therefore, it is concluded that Mandarin had not intimated IHO rather IHO had picked up
the media statement on its own discretion that shows lack of due diligence in reporting the
existence of the novel coronavirus in the early stages of the transmission despite strong
evidence of foreseeability85 of its large scale spread based on prior experience of SARS
outbreak and availability of legal and regulatory resources to curtail the transmission of the
zoonotic virus in the Hunan Wet Market, in violation of general principle of due diligence and
Article 6 and 7 of the IHR.

That the lack of scientific verifiability86 of the coronavirus cannot be used as a defence by
Mandarin, given the higher need of due care expected in the aftermath of the SARS outbreak.
This is argued as per the ‘precautionary principle’ (Principle 15, Rio Declaration) under

81
Interim Guidance, Reducing public health risks associated with the sale of live wild animals of mammalian
species in traditional food markets, World Health Organisation [WHO], (Apr. 12, 2021),
https://www.who.int/publications/i/item/WHO-2019-nCoV-Food-safety-traditional-markets-2021.1.
82
United Nations Office of Drugs and Crime[UNODC], World Wildlife Crime Report 2020,
https://www.unodc.org/documents/data-and-analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf
(2020).
83
Talha Burki, The Origin of SARS-COV-2, 20 THE LANCET 1018 (2020).
84
Statement, Listings of WHO’s Response to COVID-19, WORLD HEALTH ORGANISATION[WHO], (Jun. 29,
2020), https://www.who.int/news/item/29-06-2020-covidtimeline.
85
Report of the Special Rapporteur on International Responsibility Report, I.L.C. DOCUMENT A/CN.4/106,
(1956).
86
Rio Declaration on Environment and Development, Principle 15, U.N. Doc. A/CONF.151/5/Rev.1 (16 June,
1992.

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International Environmental Law that constitutes a general rule of conduct of prudence87.It

implies the need for States to review their obligations of prevention in a continuous manner to
keep abreast of the advances in scientific knowledge.88 ICJ in its judgment in the Gabˇcíkovo-
Nagymaros Project case89 invited the parties to look afresh at the effects on the environment
of the operation of the Gabˇcíkovo power plant, in light of the new requirements of
environmental protection.90

That, therefore, it is argued that the measures taken by Mandarin inter alia, related to wet
markets and initial reportage of the coronavirus, cannot be termed as “all appropriate” or
“proportionate to the degree of risk” and should have duly complied with the evolving
scientific knowledge on risks posed by wet markets.

Article 3 is complementary to Articles 9 and 10 and together they constitute a harmonious

ensemble91. In addition, it imposes an obligation on the State of origin to adopt and implement
national legislation incorporating accepted international standards in terms of assessing the risk
of harm (Article 10(c)), degree to which other States can be affected (Article 10(d)), and
standards of prevention comparable with recognized regional or international practice (Article
10(f)) and consultations on preventive measures of the harm anticipated (Article 9). These
standards would constitute a necessary reference point to determine whether measures adopted
are suitable.92

Therefore, it is humbly submitted that Mandarin has failed to comply with any of the
aforementioned provisions and has thereby violated Article 9 and 10 of the Draft Articles,
including Article 3.

2. That Mandarin has violated Article 7 and 893 of the Draft Articles

It is humbly submitted before the Hon’ble Court that Article 7 mandates an assessment of the
possible transboundary harm caused by the hazardous activity, including any environmental

87
Id, Principle 15.
88
J. CAMERON, THE STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW, INTERPRETING THE
PRECAUTIONARY PRINCIPLE, T. O’Riordan and J. Cameron, eds. (London, Earthscan, 1994), pg. 262–289; supra
note 76; D. FREESTONE AND E. HEY, THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE
CHALLENGE OF IMPLEMENTATION (The Hague, Kluwer, 1996).
89
Gabčikovo-Nagymaros Project, (Hungary v. Slovakia), Judgment, (1997) I.C.J. Rep 7, pp. 77– 78, ¶ 140.
90
Id.
91
I.L.C. DRAFT ARTICLES, supra note 58, art. 3, ¶4.
92
I.L.C. DRAFT ARTICLES, supra note 58, art. 9, 10.
93
I.L.C. DRAFT ARTICLES, supra note 58, art. 7, 8.

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impact assessment. The requirement of Article 7 is fully consonant with Principle 1794of the
Rio Declaration. The requirement of assessment of adverse effects of activities has been
stressed in Trailer Smelter Case95 and incorporated in various forms in many international
agreements.96 Further, Article 8 mandates “timely notification” of the risk and the assessment
to the States likely to be affected by the potential risk. The obligation to notify other States of
the risk of significant harm to which they are exposed is reflected in the Corfu Channel case97,
wherein ICJ characterized the duty to warn as based on “elementary considerations of
humanity”. Article 3 of the Convention on Environmental Impact Assessment in a
Transboundary Context and Articles 3 and 10 of the Convention on the Transboundary Effects
of Industrial Accidents, Principle 19of the Rio Declaration articulate the need for timely
notification98.

It is humbly stated before this Hon’ble Court that the State of Mandarin failed to conduct the
requisite Environmental Impact Assessment with respect of the threat of spread of zoonotic
viruses in wet markets. Even though the first case of “pneumonia-like-illness” was found on
1st December, 201999, Mandarin did not provide clear information and evidence of the same in
a timely manner to the IHO.

Therefore, Mandarin has acted in violation of Articles 7 and 8 of the Draft Articles as it neither
conducted environmental impact assessment of the risk posed by the transmission of the novel
coronavirus nor it provided timely notification of the virus to the affected countries and the
IHO.

94
RIO DECLARATION, supra note 35, principle 17.
95
TRAIL SMELTERS, supra note 74, pg. 1973–1974.
96
See, for example, Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment
from Pollution, 1140 U.N.T.S. 33, 17 I.L.M. 511 (1978)art. XI; United Nations Convention on the Law of the
Sea, art. 205, 206 Dec. 10, 1982, 1833 U.N.T.S. 397.; the Regional Convention for the Conservation of the
Environment of the Red Sea and Gulf of Aden; IUCN (ID: TRE-000743), V.C.6 Asean Agreement On The
Conservation Of Nature And Natural Resources”, In: International Law & World Order: W ESTON'S &
CARLSON'S BASIC DOCUMENTS, WESTON & CARLSON, (20 April 2021),<http://dx.doi.org/10.1163/2211-
4394_rwilwo_sim_032739, art. 14; Convention for the Protection of the Natural Resources and Environment of
the South Pacific Region;26 ILM 38 (1987), Convention on the Regulation of Antarctic Mineral Resource
Activities, 4780, 402 U.N.T.S. 71, art. 4; Protocol on Environmental Protection to the Antarctic Treaty, (1992)
45 Law and State 68, art. 8.
97
Corfu Channel Case (U.K. v. Albania); Assessment of Compensation, 15 XII 49, I.C.J., (1949).
98
CONVENTION, supra, note 98; RIO DECLARATION, supra note 35,Principle 17.
99
Fighting COVOD-19 China in Action, THE STATE COUNCIL INFORMATION OFFICE OF THE PEOPLE’S REPUBLIC
OF CHINA,http://www.xinhuanet.com/english/2020-06/07/c_139120424.htm (2020).

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3. That Mandarin is liable to pay damages to the affected States for the spread of
COVID-19

It is humbly submitted before this Hon’ble Court that Mandarin cannot claim territorial
sovereignty for the transboundary harm caused as a result of spread of coronavirus and is
therefore liable to promptly and adequately compensate the affected States.

i. That there are restrictions on the exercise of sovereignty by Mandarin

It is humbly submitted that the principle of territorial sovereignty is limited when its exercise
touches upon the territorial sovereignty and integrity of another State. Consequently, the scope
of discretionary action is determined by principles of ‘good neighbourliness’ or sic uteretuo,
utalienum non laedas.100 This is similar to the principle that a State, despite territorial
supremacy, should not be permitted to alter its natural conditions to the disadvantage of the
territory of a neighbouring State.101 Pursuant to international law, all obligations imposed by it
must be fulfilled in good faith, and domestic law may not be invoked to justify non-
fulfillment.102 In Advisory Opinion on Exchange of Greek and Turkish Populations103, it was
held by this Court that a State which has assumed valid international obligations is bound to
make such modifications in its legislation necessary to ensure their fulfilment. In the Lsland of
Palmas Arbitration104, the Arbitral Tribunal stated territorial sovereignty has, as corollary, a
duty: the obligation to protect within the territory the rights of other States, together with the
rights which each State may claim for its nationals in foreign territory”105.

Therefore, it is humbly submitted that Mandarin’s right to exercise its sovereignty cannot be
permitted to the detriment of any other State.

ii. That Mandarin is liable to pay adequate compensation to the affected States

It is humbly submitted that as per the Trailer Smelter Principles formulated in 1941-

100
SCHRIJVER & NICOLAAS JAN, SOVEREIGNTY OVER NATURAL RESOURCES: BALANCINF RIGHTS AND DUTIES IN
AN INDEPENDENT WORLD, 233, (Cambridge University Press, 1997).
101
OPPENHEIM, INTERNATIONAL LAW, at 220, (Oxford University Press, 1912).
102 Id.

103
Exchange of Greek and Turkish Populations (Greece.v.Turk.), Advisory Opinion,.1925.P.C.I.J.,.Ser.B,
No.10.
104
Island of Palmas case (U.S. v. Netherlands) 2 U.N. Rep. Int’l Arb. Awards 829 (Perm. Ct. Arb 1928).
105 Id.

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“(a) the state has a duty to prevent transboundary harm, which is commonly expressed in the
Latin maxim sic uterefuout alilenum non loedas (one should use one's own property so an not
to injure another"), and (b) the "polluter pays" principle, which holds that the polluting state
should pay compensation for the transboundary harm it has caused.”106The directions in
Trailer Smelter have been incorporated under “Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities” and the “Draft Articles on Responsibility of States for
Internationally Wrongful Acts” of the International Law Commission (ILC), both of which
reflect the applicable substantive norms of customary international law.107As per Principle
4(1)108 of the ILC’s Draft Principles on allocation of loss in case of transboundary harm arising
out of hazardous activities, 2006 (hereinafter “Draft Principles”) each State should take all
necessary measures to ensure that prompt and adequate compensation is available for victims
of transboundary damage caused by hazardous activities located within its territory or
jurisdiction or control. Further, such a liability does not require “proof of fault” (Principle
4(2)109), thereby placing strict liability on the wrongdoer state. The Principle of compensation
to the victims of transboundary harm is also incorporated in Principle 21 and 22110 of the
Stockholm Declaration and Principle 13111 of the Rio Declaration and has been further stressed
in Corfu Chanel Case.

Therefore, it is thereby humbly submitted that the State of Mandarin is liable to provide prompt,
adequate compensation to the victim112 States that have suffered irreparable harm loss of
citizens’ lives and economic dilapidation due to the transboundary spread of COVID-19.

Conclusively, it is humbly submitted that that the Republic of Mandarin is liable under
‘transboundary harm’ principle because of its economic policies and laws regulating wet
markets in Mandarin and should therefore promptly and adequately compensate the affected

106
TRAILER SMELTER CASE, supra note 74, 716-17; ALEXENDRE KISS & DINAH SHELTON, GUIDE TO
INTERNATIONAL ENVIRONMENTAL LAW, (Martinus Nijhoff Publishers, 2007).
107
Chinthaka Mendis, Sovereignty vs. trans-boundary environmental harm: The evolving International law
obligations and the Sethusamuduram Ship Channel Project, UNITED NATIONS, NIPPON FOUNDATION, (2006),
https://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mendis_0607_sri_
lanka.pdf.
108
I.L.C Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of
Hazardous Activities, with commentaries, Report of the International Law Commission to the General
Assembly on the Work of its Eighteenth Session, Int’l Law Commission Y.B., Vol. 2, part II, principle 4(1),
(1966), U.N. Doc. A/CN.4/SER.A/1966/Add.1.
109
Id. at Principle 4(2).
110
Stockholm Declaration on the Human Environment, Prin. 21 &22, U.N. Doc.A/CONF.48/14/Rev.1 (1973).
111
RIO DECLARATION, supra note 35,Principle 13.
112
DRAFT PRINCIPLES, supra at Principle 2(f).

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countries for the economic distress and loss of citizen’s lives on account of its negligence and
lack of due diligence in preventing transboundary harm of the novel coronavirus.

PRAYER

IN LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED, THE COUNSEL FOR

THE APPLICANTS HUMBLY REQUESTS THE HON’BLE COURT TO ADJUDGE, HOLD AND DECLARE

THAT:

1) Communist Republic of Mandarin is liable for violation of Articles 6 and 7 of International

Health Regulations.
2) Republic of Mandarin is liable under ‘transboundary harm’ principle because of its
economic policies and laws regulating wet markets in Mandarin

And pass any other order, direction or relief that the court may deem fit in the best interests
of justice, fairness, equity and good conscience.

FOR THIS ACT OF KINDNESS, THE APPLICANTS SHALL DUTY BOUND FOREVER PRAYS.

Place Drafted and filed

Date Sd/-

COUNSELS APPEARING FOR APPLICANTS

XIII
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