COVID19-X: A Glorious Failure of Chinese Laws and Policies (Part I)

Rajat Sharma and Navya Bhandari

The COVID-19 outbreak is a result of the Chinese Government’s failure to address crucial factors concerning wildlife protection laws, and the botched response by Communist Party officials.

This is Part I of the 10th post of our COVID-19 series.

On the 8th of March, 2020, the World Health Organisation (WHO) urged the world to fight COVID-19 caused by the SARS-COV-2 virus (Severe acute respiratory syndrome-Coronavirus 2). Consequently, the disease was declared a pandemic and has now spread over to almost every part of the world, infecting approximately more than 180 countries so far. Since then and at the time of writing, the number of cases found to be positive across the globe has multiplied by almost twenty times, causing more than 1 million deaths as a result. Astonishingly, it took the virus only 12 days to infect 1 million new people while it did so for the first 1 million over a period of three months. In fact, the number of days it took since then to infect the new 1 million people has reduced exponentially. While there is no doubt that governments across the globe are attempting to deal with this highly contagious pandemic through strict measures, it is important to note that the death toll in the U.S. crossed that of China’s, that is the country of origin for the virus, and all other majorly affected nations such as Italy, Spain and Iran. Further, the USA has emerged as the country with most positive cases, seeing considerable jumps in people being tested positive on a daily basis.

With each passing day and rising numbers of people being tested positive, various organisations such as the Centre for Disease Control and Prevention (CDC), USA, Indian Council of Medical Research (ICMR), and WHO itself are finding and publishing new information about how the virus operates and spreads. For instance, some of the initial studies conducted in China revealed that the virus affects those whose immune systems are the weakest, such as the elderly and young children. However, more recent studies have changed that notion and it is being publicised that the disease can severely affect all age groups and no complacency must be shown. Governments across the globe are preparing for lockdowns and ensuing economic crises.

The President of the USA, Donald Trump was quoted as saying that this is a ‘Chinese virus.’ While we disagree with the statement due to its racist tone, the statement does have some strength if we explore the background reasons and existing conditions in which the virus originated and how, despite various warnings, the Chinese government massively failed to provide enough attention to the very cause of the transmission of such a novel virus. And no, this is not about the conspiracy theories of the virus being manufactured out of a lab in Wuhan to be used as a biological weapon, although, amusingly, an advocate in Bihar seems to think so and has filed a complaint against the Chinese President Xi Jinping. Additionally, a corporation in Texas has filed a multi-trillion-dollar lawsuit against the Chinese government for ‘biologically producing’ this virus that is now troubling countries across the globe and cracking economies. However, such claims seem to be lacking any scientific backing.

Through this piece, the authors attempt to walk back the history lane and analyse how the SARS outbreak happened in 2003 and the response to it by the Chinese Government, discuss the evolution of Chinese wildlife laws which seem to have played a major role in the development of existing conditions in which the virus could have originated. An attempt has also been made to discuss the inadequacy of the Chinese wildlife protection laws wherein we have pointed out serious flaws in the laws which paved the way for a novel virus outbreak. Significantly, the authors have highlighted how the Chinese Government and officials initially mismanaged the outbreak which led to delays and the current situation in which the world finds itself in. Certain linkages to Chinese policies in this regard and the outbreak of becoming a pandemic are also pointed out. Lastly, we discuss some suggestions in the form of amendments that can be made to the Chinese laws that will go a long way in effectively preventing such future virus outbreaks.

SARS-CoV Outbreak of 2002-03

By now, we are well aware that excluding the 1914 Spanish flu pandemic, the COVID-19 pandemic has had a far greater impact than any of the pandemics of recent history in terms of affected populations across the globe and economic losses. In order to compare the current situation surrounding COVID-19, we must conduct a re-examination of how the Severe Acute Respiratory Syndrome (SARS)-CoV outbreak began in China in 2002, the reasons acting behind it and how did the Chinese government respond to the same. Similar to the COVID-19 virus, SARS was also due to a completely new strain of virus, which couldn’t have been onset by genetic engineering. WHO considered it to be an animal-based virus, the source of which was reportedly bats spreading to other animals such as civet cats before finally getting transmitted to humans. This was not surprising, however, as the CDC’s study explains that three out of four new infectious diseases come from human-animal contact. This outbreak affected a total of 26 countries and saw more than 8000 cases in the year 2003, however, in terms of lives lost and economic losses, it doesn’t come close to the ongoing COVID-19 pandemic.

According to experts, there were major concerns due to gaps with respect to information sharing and reporting on an urgent basis in light of the initial days of the SARS outbreak in China. The general Chinese public was not informed of the disease, its repercussions had begun at least a month after the outbreak, and efforts were made to downplay the severity of disease even afterwards. Doctors in hospitals were told not to publicise the disease. This was due to Implementing Regulations governing State Secrets Law on public health-related information which categorised ‘any occurrence of infectious diseases’ as a state secret before they are formally announced by the Ministry of Health or any organs authorized by the Ministry. Additionally, there were laws that prohibited the distribution of any virus samples even for testing purposes other than with the Chinese CDC, which led to delays in the correct identification of symptoms.

In fact, even WHO was provided very little information about the disease till April whereas it had come to the knowledge of Chinese officials in January. Finally, it was in mid-April that the disease was listed as one to be closely monitored under the Law of Prevention and Treatment of Infectious Diseases and an anti-SARS joint team was established. During the SARS outbreak, Chinese leadership was severely focused on maintaining their reputation in the world and this tendency resulted in gross mismanagement as it became an epidemic in Hong Kong and affected multiple other nations. Later, the Chinese leadership did accept their mistakes, stating that the authorities were ill-prepared and fired their Health Minister and Mayor of Beijing for early mishandling of the outbreak. It was considered to be the biggest embarrassment for China at a global level since the Tiananmen Square incident in 1989.

There were indeed some lessons to be learned. Post-SARS, China enacted new Regulations on Public Health Emergencies stipulating that government officials must make timely reports about any such emergencies at the earliest, however, left a loophole regarding informing the general public about the same. SARS was a real indicator and not merely scientific research to make a case for shutting down wet markets, cracking down hard on wildlife trade, and educating the public about severe health emergencies that can arise due to their practices. Many including Chinese health experts would have expected that the Chinese leadership will learn from their mistakes committed during handling and responding to the SARS pandemic. However, this was too good to be true. There are some eerie similarities in how China initially did respond inadequately to the COVID-19 outbreak, downplaying its severity with announcing information such as the inability of the virus for human to human transmission whereas the same had already begun.

Inadequacy of Chinese Laws

Chinese wildlife protection regulations revolve around the Wildlife Protection Law, 1988. Though the act has been enacted bonafide, the unclear and ambiguous language combined with the incomplete protection it extends to wildlife has made it a subject of sharp criticism ever since its enactment. The problem with this piece of legislation is twofold. First, it seems that the law is in place to extend protection to the booming wildlife farming industry in China as the loopholes allow people to find new ways of keeping the business as a going concern and second, the usual problem that persists with many laws, i.e. lack of proper implementation. The law has allowed China to become one of the world’s largest wildlife markets. Until it was amended in 2016, the focus of the law was on breeding animals for utilization in fields of medicine, making and selling products out of skins, teeth, etc. and most importantly as food. The object was not to actually protect animals or recognise their fundamental value to the environment. In the 2016 Amendment, the ecological importance of animals was recognised, and animal cruelty was prohibited. However, such prohibition served no good as the law made no mention of the consequent liability for such cruel practices. Absence of liability makes the provision as if it was non-existent.

The first time when Chinese wildlife protection laws came to light in front of the world was after the SARS outbreak in 2002. SARS was seen as not only a community health problem but also a policy failure of Chinese laws. The outbreak followed a ‘temporary’ ban on the consumption of Civets in China. There was a ban on wildlife trafficking too, that continued only for six months. After which, the Chinese government uplifted the ban, making the business legal once again, much to the dismay of scientists and conservationists alike. Such a short-sighted action by the Chinese government is one of the reasons behind the outbreak of epidemics like the COVID -19, which has claimed thousands of lives worldwide. The 1988 Wildlife Protection Law was amended in 2009, 2016 and the latest in 2018. Yet, there are legitimate demands from all across the globe to amend it even further to permanently ban wildlife trading and wet markets like the Wuhan seafood market, where the COVID-19 outbreak reportedly originated.

The law suffers from some inadequacies that are used by people to continue trading in wildlife. The Huanan wet market, from where the pandemic originated was a huge centre for buying and selling of wild animals. Such enormous markets cannot possibly operate illegally, without the government knowing of its existence. A picture of the menu from the Wuhan Market was circulating on the web, which had a total of 110 wild animals being served. How is this possible? In 2014, China had criminalised consumption of ‘protected’ species, but at the same instance, it allowed commercial farming of certain protected species. This two-faced approach has been the reason for apprehension as people can still hunt and kill animals, that are then sold for consumption illegally, under the clothing of being legal.

The suspected species for the transmission of the novel coronavirus are ‘pangolins.’ Ironically, they are listed in the CITES Appendix 1 in 2016, which means that international trade in pangolins is banned. Consequently, in 2017, wildlife protection laws in China prohibited consumption of pangolin meat. Yet, the practice of killing and consuming continued.

One way in which the sale of wild animals becomes possible is through ‘grey markets,’ which are a lottery for the richer sections of the society as consuming these protected animals is a sign of status symbol for the Chinese. Grey markets are places where both legal and illegal products are traded. Illegal products are sold under the garb being legal. When government sanctions trade in a particular product for scientific, medicinal and other special uses, it opens doors for the illicit sale of the product for other uses as well by giving a legal cover. Hence, a partial ban does no good. Further, the certification done for partially banned products is through inconsistent methods, which adds injury to insult as the authenticity of products is difficult to determine.

The law does not prohibit the killing of animals other than those in ‘key protection’ of the State. It, therefore, offers only limited protection to the wildlife, which continues to be sold and consumed legally, until the ban by the Chinese government on such markets which was enacted only after the COVID-19 outbreak had already started. Moreover, it is believed that wildlife sale still continues despite the ban. Further, according to Article 25 of the Act, commercial breeding of wildlife is nevertheless allowed as long as a license is obtained from provincial-level authorities, which are again easy to bribe. Thus, the absence of a centralised mechanism of licenses defeats the purpose of the legislation. Likewise, products made of animals earlier not banned, but now banned still continue to be sold. This is a major flaw in the policy towards wildlife protection. If the State continues to grant legal protection to such products, inevitably the sales will continue, and more animals will be illegally killed to make these products, as they can still be sold. Additionally, products of farmed wild animals are still allowed to be consumed. To sum up, the scope of the legislation is quite narrow, making it prone to dodges and giving a push to wildlife farming.

Even when stringent laws are present with harsh penalties of imprisonment, they are rarely implemented. The local authorities are sometimes even bribed. This creates another hurdle in the way of implementation. Moreover, there is a lot of passing of responsibilities by the forestry and fishery departments, the central as well as the provincial governments, inter alia on each other due to unclear and overlapping demarcation of responsibilities in the law. All these factors contribute to the mushrooming wildlife trade industry in China, which is alone a $74 billion industry. International organisations have long been struggling to shut this industry completely. China responds to these efforts by enacting incomplete legislations and therefore allowing such trade to continue. It has become the reason for epidemics like the COVID-19, which has caused a major economic loss to the global economy, estimated at around $2.7 trillion.

The authors are students at the National Law University, Jodhpur.

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