Adya Garg and Darshin Parekh

This is the 5th post of our COVID-19 Series.

A combined application of the International Health Regulations, the International Law Commission’s Articles on State Responsibility and other International treaties, makes it possible to hold China accountable in International law.

GLOBAL IMPACT OF CORONAVIRUS.

A micro-organism that originated in the markets of Wuhan, China has had a far reaching impact by sending billions of people into lockdown and infected more than a million people worldwide. The impact on the economy is expected to be worse than the 2008 recession.  The blame for all this is being put on the inability of China to contain the virus effectively. Interesingly, this is not the first time that China has failed to effectively control such an oubreak. The Sever Acute Respiratory Syndrome(SARS) outbreak in 2002, is another example of an ineffective and delayed response from Chinese leadership which led to spread of the disease to 26 countries.

APPLICATION OF THE INTERNATIONAL HEALTH REGULATIONS(2005).

The International Health Regulations (IHR) was amended by World Health Organisation(WHO) in 2005 after the SARS outbreak and was accepted by the 58^th World Health Assembly.  The purpose and scope of the regulations is to prevent, protect against, control and provide a public health response to the international spread of disease so that it avoids any unnecessary interference with international traffic and trade.  The amendment was done so that the scope of IHR was not limited to any specific disease and covers all illness or medical condition, irrespective of origin or source, that presents significant harm to humans.

The IHR requires all state parties to carefully assess events in their territory which may constitute a public health emergency and imposes a duty on states to notify the WHO within 24 hours of assessment of this information. Further all state parties shall inform the WHO if it has evidence of an unexpected or unusual event within its territory which may constitutes a  public health emergency of international concern. At the national level, a state party is expected to assess all reports of urgent level within 48 hours and dutybound to notify WHO immediately.  Guidelines given under Annex II provide that a state party should report any event of potential international public health concern, including those of unknown causes or sources and those involving other events or diseases than those already listed in the regulations.

WAS CHINA LATE IN ITS RESPONSE  ?

Since the coronavirus was declared a pandemic by the WHO, the International media as well as public health experts throughout the world have raised doubts as to China’s response with respect to the spread of the coronavirus.

The officials in Wuhan were aware about an unsual SARS like disease spreading rapidly, since mid december, but it was only on 31^st december 2019, that an official notification regarding the same was sent to WHO. The IHR specifically mentions in Annexure II that any country facing a health emergency must inform the WHO, if any medical professionals are also affected by the disease. For weeks, China refrained from disclosing it to the WHO, that 1700 chinese medical professionals had contracted the virus.

Reports have also revealed that officials at the Hubei provincial health commission had specifically ordered labs to stop testing samples and destroy existing samples of the novel virus. One of the officials from Wuhan publicly accepted that there was delay in informing the citizens as before disclosing approval from the top officials had to be taken.

Based on China’s limited disclosure, the entire world was in a bubble, unaware and unprepared to tackle what was coming in the future. There have been several studies which suggest that China’s delayed response led to the coronavirus being a global pandemic. Had China responded to the outbreak in Wuhan, 1-3 weeks earlier, the cases could have been reduced by 66%- 95%.

THE RESPONSIBILITY OF THE CHINESE STATE

The question that arises now is can the state of China be held legally responsible for its conduct and do the affected states have any remedy against China under International law?

To answer this question, it is required to refer to the International Law Commission’s Articles on Responsibility of State of Internationally Wrongful Acts, 2001 (ARSIWA). These articles regulate the responsibility owed to an individual state, group of states or to the world community as a whole. Article 1 provides that a state is responsible for acts committed which are internationally wrongful acts. Corfu Channel case was one of the first cases where the ICJ talked about the principle of state responsibility as the Albanian government had failed to fulfill its obligations which lead to loss of life and property to the British.

Article 2 laids down two essential conditions to establish a wrongful conduct by a state. It provides that a wrongful act must be “attributable to the state under international law” and secondly that, “it constitutes a breach of an international obligation of the state”.  The United States Diplomatic and Consular Staff in Tehran case, furher expanded the concept of State responsibility as it held the Iranian authorities responsible for inaction and for not taking the required measures. Hence, the Chinese authorities due to their miscommunication and misinformation regarding the novel virus, clearly violated the IHR, which impose an international obligation on all member states. Therefore, China can be held legally responsible under Article 2, as even if there is absence of any wrongful intention on part of the state, as just the breach of an obligation is enough to attribute responsibility.

Now that the responsibility of China has been established, we need to examine the remedies that other states possess under these articles. China firstly has the obligation to cease the act and “offer assurances and guarantees of non- repitition.”  This provision holds significant importance especially with respect to China, as it has been the Epicentre of such a disease in the past as well. To assure the world of its commitment to the IHR, China must take  appropriate measures to establish proper communication systems and ensure expedious information sharing at the local, state and national level. It may have to regulate its wet markets further.

Article 31, goes on to the extent of making the responsible state pay full reparation to the injured state/states for material as well as non- material injury.  The form of reperation can be a combination of restitution, compensation or satisfaction. However, China can claim the exception provided under Article 35 on restitution, as the claim for restitution will run into trillions and it is materially impossible for China to take the responsibility alone, to restore the economic and social order at the global level. Article 36, expressly states that only those damages can be compensated that are financially assessable.  It is important to note here, that it is unfeasible to determine the actual impact, China’s misinformation had on the world economy and even more dificult to monetarily measure the compensation for thousands of lives lost. Therefore, it is unrealistic to expect to China to compensate for the entire losses sufferred because of the novel coronavirus.

Under such circumstances, the most feasible remedy that the injured states have against China, is provided under Article 37. This article allows the responsible state to remedy its internationally wrongful act by an “acknowledgment of the breach, expression of regret, a formal apology, or another appropriate modality”.  The Arbitral tribunal in Rainbow Warrior acknowledged that it is a common practice among international courts and tribunals to use satisfaction as remedy or form of reperation in cases involving state responsibility. In this case the New Zealand Government, specifically requested as relief, an acknowledgement from the French state, that they had breach its obligations to New Zealand. Therefore, a formal apology from the Chinese leadership to the global community and an acknowledgment of its mistakes in the early days of the spread of the virus, will be a step towards regaining of trust in the Chinese state and belief in its ability to cooperate with the world to tackle such health emergencies in the future.

LATEST DEVELOPMENTS

Leaders of various states especially, the United States of America(USA), are questioning China’s response to the virus and its responsibility for the same. A group of American lawyers and firms have also filed a suit in the US demanding $20 trillion from Chinese authorities. They have accused the state of China for international terrorism on the grounds of conspiring to develop a biological weapon and causing death of American citizens by negligence.

Another report by a British think tank, also extensively talks about China’s negligence in dealing with the virus and has estimated a figure of £3.2 trillion in compensation from China, for the recovery of the G7 economies. The report mentions that along with the breach of the IHR, China may also be held liable for breach of its obligations to the World Trade Organization (WTO) and the United Nations Convention on the Law of the Seas (UNCLOS). The think tank has also stated various forums where China can be sued, like the International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), WTO and even the domestic courts of China, UK and USA.

 A petition has also filed before the United Nations Human Rights Council (UNHCR), by the Internation Council of Jurists, states that the virus was developed in the Wuhan Virology Lab and accuses China of developing a biological weapon and using it as a means to create its dominance over the World economy. The petition holds China accountable under International treaties, like Article 25(1) of the Universal Declaration on Human Rights(UDHR) and Article 12 of the International Covenant on Economic, Social & Cultural Rights(ICESCR), apart from the IHR and the ARSIWA. This petition alleges violation of the basic rights to health and wellbeing by the Chinese state. The obligations under the ICESCR also talk about effective prevention, treatment and control of epidemic, endemic and other diseases so as to allow humans to enjoy high standards of physical and mental health. By delibrately hiding information and delaying its measures to control the virus, the Chinese government has directly or indirectly violated the right to a healthy life of the global community.

CONCLUSION.

A combined application of the IHR, ARSIWA and other International treaties, makes it legally possible to raise a dispute against China. Althought, before China is brought before `an international court, it is of utmost importance that the member states of the WHO, establish a review committee to assess China’s response to the virus in an impartial and unbiased manner. Considering, the dominance of China in the world trade, it is highly unlikely that most of the affected countries will be willing to stick to a dispute against China. However, this should not stop the global community from pressurizing the WHO to ensure stricter implementation of the IHR as well as formulation of additional guidelines to effectively deal with such situations.

The authors are students at National Law University, Jodhpur