코로나 19의 세계적 확산과 국가책임 - 감염병 발생 통보와 정보 제공 의무를 중심으로 -

Entering the 21st month as of September 2021, COVID-19 is still engulfing the entire global community. Mindful of the fact that China was the originating place of the virus and that its failure to contain the virus in the early stage of the disease has caused the pandemic, discussions to place state responsibility on China have been robust in various fora. State responsibility in this respect can stem from two sources of international law: IHR 2005 and customary international law. Both sources of law, however, invite complex evaluations and pose difficult questions. First of all, IHR 2005 is not detailed enough to impose specific obligations on states commensurate with the demands from the international community in the early stage of a pandemic. This phenomenon is not surprising because IHR 2005 was introduced without experiencing a pandemic with the scale and impact of the ones like COVID-19. On the other hand, customary international law imposes legal obligations on each state to manage its territory with due diligence and notify neighboring states of transboundary harm when one is suspected. These customary law obligations, however, presuppose a physical flow of moving particles or something similar to it, which does not necessarily exist in the context of a pandemic which is in fact caused by human beings carrying virus in their respiratory system arguably without any physical flow of particles. As such, more thorough analyses should be conducted to confirm state responsibility for the COVID-19 spread under international law, going beyond simply pinpointing China as the originating country and as the country with loose initial responses. Once the current pandemic is brought under control, debates on state responsibility based on international law jurisprudence will likely be conducted. Sound legal bases should guide these debates.