CHINA’S LEGAL OBLIGATION OVER COVID-19

The widespread deadly pandemic, Covid-19 has caused havoc around the world. What started in the city of Wuhan, China has now reached far across almost all the regions. This has not only resulted in a health crisis but has also distressed the global economy on a large scale. Although all the health organisations are tirelessly working to vanquish the pandemic, there have been relatively very few positive outcomes. Meanwhile, no one can recover from the fact that the disease that has almost destroyed everyone’s life has originated from China and thus, the injured States are looking for reparation from China for its wrongful act. This article analyses the international laws that can be put in an application for dragging China to the court of law.

 “Every nation has a responsibility to share all of their information in a timely and accurately not only because it is the right thing to do, but because that is how you save lives for your own people as well. It took an awful long time for the world to become aware of this risk that was sitting there in China.”

 The questions that are required to be raised at this stage are-

1. Whether China is responsible for the outbreak?

2. How can China be made liable for the outbreak?

3. Under what laws can China be held liable?

 In law, liability arises when an injury or harm has been caused by wrongful acts or omissions. Certainly, there are varied acts and omissions compassed by China that creates a liability on it.  Like,

• It failed to shut down its wet markets that it had promised to do so at the time of the SARS outbreak in 2003.

• China tried to censor the outbreak. When a doctor of China, Dr Li Wenliang endeavoured to warn the government about the atrocities of the deadly virus, he was accused of making false statements and disturbing the public order.

• Despite having knowledge about the epidemic, the government did not take any serious measures for protecting the health of its own people. The government allowed its people to gather in public and also to celebrate the Lunar New Year.

• China did not halt its International flights despite knowing the barbarity of the situation. This became the major reasons for the spread of the Covid-19 to other countries of the world, making it a pandemic.

• The government on the face of it denied any community transmission of the disease. On 31^st December, China reported to the WHO (World Health Organisation) that there was no evidence for a human to human transmission, in fact, the disease was spreading from animals to humans. The Wuhan Municipal Health Commission falsely described this disease as seasonal flu that was not alarming at any given situation. The New York Times reported that- the government’s initial handling of the epidemic allowed the virus to gain a tenacious hold.

• When the WHO offered its assistance to China for curtailing the disease, China denied until late January 2020.

• China loathed from sharing essential information about Covid-19 with the WHO. China waited until the month of February 2020 to give out correct and accurate numbers and reports about the disease. This desistance by China severely breaches its legal obligations under the International law.

The laxity of China towards this pandemic raises calumniatory debates on the international obligations and responsibilities of it towards the affected States. The Customary International Law (CIL) on the Responsibility of States for Internationally Wrongful Acts, 2001 under Article 31 does hold a State responsible and has an obligation for full reparation for the injury  (includes any damage, whether material or moral) caused by the internationally wrongful act.  But how far would it be applied depends upon the competence.  

HOLDING CHINA ACCOUNTABLE- INTERNATIONAL LAWS

There are certain international laws that could be taken recourse to hold China liable for its actions. They are discussed in brief below-

THE ENVIRONMENTAL ASPECT

In International law, the concept of ‘due diligence’ basically means the obligations of all the States to prevent any transboundary harm. It is an important tool to deal with issues that could have a global impact like environment, legal, security, trade, etc. Hence, this makes every State obliged to undertake measures that protect people beyond its territories also. The Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (ILC) provides for the States to have duties to prevent significant transboundary harm (Article 3) and also to provide an assessment of possible trans-boundary harm (Article 7). For the first time, this was led down in the case of Trail Smelter (the United States vs. Canada.)

Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration on Environment and Development imposes liability upon States for their inactions. It ensured that they have control over their activities and do not cause damages beyond their territorial jurisdiction.

From the above discussion, it can be concluded that the existing international enviro-legal jurisprudence could hold any State accountable for destroying the security of another State, even if the threat is in the form of a disease. Therefore, China could be held responsible under these propositions because it failed to exercise due diligence while undertaking commercial activities in their wet markets.

THE WORLD HEALTH ORGANISATION (WHO)

The WHO Constitution does not provide for any substantive obligations with respect to international health law. It is primarily concerned with establishing a framework that guides the activities of the States.  Although there are certain Articles that the other nations could take the assistance of-

• First and foremost, China violated the object (Article 1) of the WHO Constitution. This could be the preeminent argument against China that could encompass the other arguments.

• Article 37 states that each member shall respect the exclusively international character of the [WHO] Director-General and the [WHO] staff and not to seek to influence them. Clearly, in this case the conduct of the functioning of WHO was compromised that could be evidently seen in the statements released by WHO.

• Article 63 that encompasses a duty on all the members to communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health which have been published. China failed to give in early reports.

• Article 64 was violated as it requires each member to provide statistical and epidemiological reports in a manner accurately and sufficiently.

THE INTERNATIONAL HEALTH REGULATIONS, 2005 (IHL, 2005). 

The WHO adopted the IHL, 2005 after the SARS epidemic in China which is the only international regulation that covers an international spread of disease. They are broadly covered in two Articles-

• Article 6 that obliges a State to notify WHO within 24 hours of assessment about any possibility of the events constituting a public health emergency.

• Article 7 provides 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. In such a case, the provisions of Article 6 shall apply in full.

Therefore, these Articles could impose liability on China for its inactions.

JURISDICTION OF THE ICJ

The Constitution of the WHO provides for the jurisdiction of the ICJ on this matter through Article 75 by stating that 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 ICJ.

It is true that there are no precedents on this issue but on the other hand, there have not been such a massive scale pandemic in the world.  The ICJ would be the right forum to hear this case if any State brings against China otherwise the ICJ can also exercise the use of its advisory jurisdiction here. The acknowledgement of the efficacy of this Court by the UN member States makes the hold of the ICJ on this case stronger.

CONCLUSION

It has been historically proven that international laws have had no applicability in holding the wrongful States liable in cases of an outbreak of diseases from the time of coming off the WHO i.e., 1948. Therefore, applying any law on China to hold it responsible would give any positive result or not, remains in a dark arena.

Yes, we certainly do know that the pandemic was not an intentional act but its malfeasance is definitely the cause of it. In the view of the author, the inaction of China does call for full reparations for the injury that has been caused to so many nations. The alleviation and concealment estimates upheld by the States to constrain the harm are destroying the worldwide economy. Keeping this all aside, the major concern now is to bring this pandemic in control. And then afterwards, fight against China, the real sick man of Asia, for making it liable for its actions.

“Chinese government’s inaction in arresting the spread of the virus has resulted in recession across the world and loss of trillions of dollars and rendered jobless to millions of workers in India and the rest of the world.”

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ABOUT THE AUTHOR

Meghna Buchasia is a law student at Amity Law School, Amity University, Kolkata.

In Content Picture Credit: Quartz