COVID-19: The feasibility of making China legally responsible | The Daily Star
12:00 AM, May 18, 2020 / LAST MODIFIED: 01:41 AM, May 18, 2020

COVID-19: The feasibility of making China legally responsible

The ongoing crisis of the Coronavirus (SARS-CoV-2) outbreak has acquired a multidimensional nature and has been wrecking the world economy, trade, education, health, and most importantly people's lives. Earlier, the World Health Organisation (WHO) declared the outbreak as a Public Health Emergency of International Concern on 30 January 2020 and a pandemic on 11 March 2020.

Jurist Peter Tzeng and Scholar Bellez Julia's notes corroborated by the official studies led us to believe that the Chinese government withheld key information for weeks from the world about the prevalence of the COVID-19 in Wuhan, until it was too late. But as a state party to the International Health Regulation  2005, (hereinafter "IHR"), China had two international obligations to notify the WHO within 24 hours of discovery of the new Coronavirus and to share information of such unexpected public health event under articles 6 and 7 of the IHR respectively.

Voices are emerging blaming China and claiming for damages for the alleged negligence, concealment, lack of transparency and responsibility for the global pandemic. There are demands that China should concede its international legal responsibility for the outbreak of this pandemic and compensate the countries harmed as a result. The unprecedented wide scale of the damage has prompted such assertions.

This article encompasses the potentials of holding China responsible before the International Court of Justice (hereinafter "ICJ") for its role in the pandemic and for making reparation for the damage caused thereby.

Legal basis for the lawsuits

Amongst other(s), the scale of damage caused by COVID-19 depicts the claims of China's purported violations as follows.

  • Potential claims to be lodged against China under the IHR:

The core instrument of the international health law dealing with this pandemic is the IHR. At the time of ratifying IHR, China declared that it "applies to the entire territory of the People's Republic of China, including the territory under its administrative control".

The IHR refers inter alia to COVID-19, similar diseases "caused by a new subtype" of SARS (which led to adoption of the new IHR, 2005) and establishes obligations on the member states to share relevant information concerning COVID-19 "within 24 hours" of its discovery. However, IHR does not address whether its violation creates an obligation to compensate those states parties adversely affected by harms caused by such violation.

Article 6 of the IHR requires states to communicate expedited, timely and sufficiently detailed information about the potential public health emergencies of international concern (PHEIC) to the WHO in order to galvanise efforts to prevent a pandemic. This is one of the 'hard-and-fast' IHR obligations, i.e. those whose compliance can be attested in a practically immediate form. Furthermore, IHR Brief No. 2 requires that upon the first reports of a PHEIC within its territory,  a state is  required to assess  within 48 hours by applying a specific algorithm contained in Annex II of the IHR(2005), called the decision instrument. It further clarifies that there are four decision criteria to be used by the States Parties in their assessment including 1) seriousness of the event's public health impact; 2) the unusual or unexpected nature of the event; 3) the risk of international disease spread; or 4) the risk of imposing travel or trade restrictions by other countries. Any event satisfying any one criterion must be assessed and any event satisfying two must be notified. Therefore, based on the IHR protocol, China had 48 hours to assess whether this "unusual event" was of the nature of the PHEIC.

It is apparent from the available information that instead of immediate assessment, Chinese authorities withheld crucial information, both nationally and internationally, to shroud in secrecy the outbreak of the virus for several weeks after it had been first discovered in Wuhan. Accordingly, it can be argued that China concealed the gravity of the situation with the WHO, and hence, violated the obligation under article 6. Articles 7 and 10 read with article 64 complement the argument as well.

On top of that, article 3 of the IHR states that the IHR principles shall be respected with full dignity, human rights and fundamental freedoms. Whereas the outbreak of COVID-19 has already been affecting the right to life and the right to health of millions of people globally which forms violations of customary international law, thus it could be argued that China breached the human rights of its citizens and millions of global citizen by not respecting the IHR and International human rights law.

Here it can be reasonably deduced that the health, security and safety of the world being the spirit of the IHR are fundamentals and common interests of nations and hence a breach of the IHR obligations triggers international responsibility under article 42 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

It is plausible that these are grave breaches of IHR by China tantamount to international wrongful acts as defined in article 2 of the ARSIWA, which brings China within the ambit of international responsibility under article 1 of the same. Article 1 of ARSIWA articulated that every internationally wrongful act of a State entails the international responsibility of that State, and must repair it in an adequate form. On several occasions, this principle has been applied by the Permanent Court of International Justice (PCIJ), and ICJ. Moreover, it is a well-established rule of international law that an injured State is entitled to obtain compensation from the State, which has committed an internationally wrongful act, for the damage caused by it.

In order to hold China responsible, article 2 read with article 12 of the ARSIWA requires that its alleged act must not inconformity with any of its international obligation and such act is attributable to China. Obligations may arise for a State by a treaty and by a rule of customary international law. Furthermore, article 4 clarifies that the functions of a State's organs are also attributable to the state. Some of these principles got the status of customary international law. Accordingly, wrongful conduct flows from local Wuhan authorities, which is an organ of China, is therefore attributable to China.

Thus, as per article 14 of the ARSIWA, China's failure to discharge its' obligation under the IHR to expeditiously and transparently share information with the WHO constitutes an early and subsequently extended breach of its legal obligations. Consequently, China bears legal responsibility for its internationally wrongful acts (article 28 of ARSIWA) and is liable to "full reparation for the injury caused by the internationally wrongful act" (article 31of ARSIWA) in the form prescribed by article 34 of the same. Furthermore, the PCIJ in the case of Factory at Chorzów affirmed that states must endeavor to "wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed". It manifestly supplements the previous argument.

  • Potential invocation of the WHO Constitution:

Notwithstanding, the WHO Constitution does not contain any substantive obligations of international health law, there are few claims contending the interpretation or extension of its application. Firstly, under Chapter XIV of the constitution, each state party is under an obligation to submit a statistical public health report. States could invoke article 21 and 22 of the WHO Constitution as a basis for establishing the jurisdiction of the International Court of Justice (ICJ). Article 21 empowers the WHO to establish regulations like the IHR, as such, the IHR constitutes the 'subsequent practice' of the WHO Constitution; hence, the China's alleged violations of IHR obligation relates to the interpretation of the WHO Constitution. Therefore, any state willing to drag China to the ICJ could claim the breach of its IHR obligation.

  • Potential claims under the Vienna Convention on the Law of the Treaties( VCLT):

An obligation under general international law depicted under article 31 read with article 26 of the VCLT is treaty must be interpreted and performed in good faith. In furtherance pursuant to article 18, a State is obliged to refrain from acts which would defeat the object and purpose of a treaty. Relying upon these obligations, a State could claim that China has defeated the object and purpose of the WHO Constitution— "the attainment by all peoples of the highest possible level of health".

 

  • Plausible claim under the Biological Weapons Convention:

Article I of the Biological Weapons Convention restricts China, as a State Party to the convention, to undertake in any circumstances to retain microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for protective or other peaceful purposes. Thus, this proposition is appealing that non-reporting is a form of retention, hence violative of the Convention.

To recapitulate, China has treaty obligations and obligations under customary international law which form primary sources of international law as per article 38 of the ICJ Statute. Therefore proceedings can be brought against China under article 36 of the ICJ Statute. It is submitted that international law should not be used for political interests, rather it should be utilised as a tool to preserve the peace of the world ensuring the welfare of the human being.

The writer is an Advocate, Supreme Court of Bangladesh and Head of Chambers I.H. Khan & Associates.

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