COVID-19 is undoubtedly the talk of the world in recent times. The virus that incubated in Wuhan is now all over the face of the Earth, threatening the existence of mankind as a whole. It is on a rampage, ravishing so-called global superpowers too. Ever since the day the virus was discovered, there has been an air of uncertainty surrounding the same. Various controversial claims and assumptions have been made regarding the source of the virus and potential possibility of it being a bioweapon. Thus, all these claims seem to be shifting the blame game on The People’s Republic of China. Having said this, these will remain as mere claims until proven otherwise! However, one concrete criticism made by the global community is regarding China’s responsibility towards the world nations in such tough times. As the famous saying goes, information is wealth. Timely information during a pandemic is nothing but gold dust. China, however, seems to have made a mockery of the situation. Not only has it gone past basic humanitarian concerns of the international community but has made a gross violation of the existent International Legalities and Regulations. It is at this point that the legal aspect of the debate comes in. Before we investigate the legalities involved, a brief representation of the anomalies involved needs to be looked into.
Right from the way in which the virus was even discovered, the lethargic attitude of the Chinese is seen. Around mid-December of 2019, several local news agencies in Wuhan reported about an influenza, pneumonia like disease which had affected the locals of a wet market that deals with exotic wildlife. Followingthis, on December 30, an alarm was sounded by one Dr. Li Wenliang, about a possible coronavirus, 87% similar to SARS, which startled the world in 2003. As any authoritarian power would do, the state was quick enough to suppress the information within its territories. Not only did state media agency issue a warning to netizens not to indulge in rumour spread but in fact forced the doctor to sign a letter claiming that he had made so called ‘false comments.’ At this stage, the virus spread was at a minimal with just few hundreds of cases. Not only was there suppression of information but blatant censors placed on any entity that sounded alarms. Even as the cases rose, false claims were made by local authorities about the transmission modes of the virus and ruled out human to human transmission. All this was at the ground zero at the epicentre when it was merely anepidemic. The old habit of the Chinese, putting secrecy, political gains over anything and everything continued even after the disease started showing its omnipotent presence all over the world. The World Health Organization was kept out of mainland China, ever since the woes began much like it happened in 2003, during SARS outbreak. Vital information about the transmission pattern of the virus, infection rate, numbers were all misrepresented or never provided to WHO.
These acts of China are a breach of legal duty bestowed upon China by various existing International laws. This intentional breach is unlawful, and the world nations reserve a legal right against China. The primary breach is with respect to International Health Regulations, 2005 signed by 194 nations including China. If one goes back in time, the global community adopted these new regulations after the SARS epidemic during which China had yet again lived up to itsblatant highhandedness and tried to cover up the epidemic. History repeats itself, doesn’t it! Under Articles 48 and 30 of Responsibility of States for Internationally Wrongful Acts 2001, issued by International Law Commission of the United Nations via International Law Commission Report, A/56/10 dated August 2001, states are assured of non-repetition of a said wrongful act. It is precisely for this reason that the legally binding International Health Regulations,2005 were adopted to control infectious diseases which included SARS and cases of human influenza caused by a new subtype to the list of diseases listed by International Health Regulations,1969. Article 6 of this legislation deals with information sharing aspects during control of a disease. The member states are expected to notify WHO about all existent information regarding a public health emergency. This includes ‘timely, accurate and sufficiently detailed public health information available to it on the notified event, where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed’ so on and so forth. This is precisely what China has failed to yet again, by suppressing the flow of information to WHO and in turn to the international community. Notable incidents include China not disclosing the date on which the patients were infected and instead released the numbers only. This intentional suppression of information made it extremely unviable for world epidemiologists to conclude as to whether disease curve was rising or waning. Even as the cases reached as high as 13,000 onset details were not provided by China. Further, out of the blue acts such as increasing the death toll by nearly 50% came down as nothing short of a shock to the international community. It further refused any international help or co-operation from the international community in tackling the virus. China, in fact refused the offer of U.S. Centers for Disease Control and Prevention to send in a panel of experts to deal with the situation which was becoming amass and glary. Thus, China was performing a dual way blockage of information. Not only was vital information sent to the WHO, in accordance with International norms and laws but also assistance from the international community was never allowed in.
Thus, we have seen how breakdown of political machinery at ground level can have its impacts at a global stage. The international community at this point has clearly expressed its disapproval of the Chinese attitude, with global superpowers like the U.S.A., and the G7 nations indicating their displeasure with the disinformation act of China. If one decides to file a suit against China for its actions, the forum to file a suit against a state becomes important. This is because China can always claim sovereign immunity like any other nation by which it is immune to suits which it doesn’t entertain or gives consent to. Again, private entities have been witty enough in doing so as reports suggest that there was a class action lawsuit filed in a district court in Texas, U.S.A., claiming that COVID-19 was a biological weapon of mass catastrophe and that the act of China was in fact an act of terrorism against the world. This act of terrorism is of prime importance here and might well be the masterstroke as the Foreign Sovereign Immunities Act of the U.S.A., read with The Justice against Sponsors of Terrorism Act brings out the fact that any country or state that is said to have sponsored terror, cannot claim sovereign immunity. However, if any state or nation decides to file a suit, they will have to do so in accordance with the UN Charter at an appropriate forum. This forum will most likely be the International Court of Justice housed at Hague, Netherlands. Other International Forums might lose their relevance due to the sensitivity of the issue at hand.
Legal Remedies for wrongful acts of nations is usually sought under Responsibility of States for Internationally Wrongful Acts, 2001. Article 1 of the legislation sets the base right as it states that every internationally wrongful act entails the responsibility of the state for the same. Article 2 of the Act defines an internationally wrongful act as one which(a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.Here, the breach of obligation is with respect to WHO’s International Health Regulations, 2005 as explained earlier. Chapter Two of the legislation deals with Attribution of Conduct To a State and the way a nation interprets and presents this will be vital to the suit. This is because in China, the failures began at the local level right from the Municipal Corporation of Wuhan till it reached the highest authority of The People’s Republic of China, i.e., The President himself. All these authorities constitute as ‘organs of the State’ which are any person or entities that are acting in accordance with the law of the land. Thereby, it is understood that irrespective of the hierarchy of authorities,all were acting on behalf of the Chinese Republic. Article 14 of the legislation might be of relevance as it deals with Extension in time of the breach of an international obligationconsidering the fact that COVID-19 is still an ongoing crisis all over the world and nobody knows until when the aftermath of the crisis will persist.
Looking at the Chinese counterpart, it will have its defence in Article 23 which deals with Force majeure that is the happening of an unforeseen act or event beyond the control of the State and hence making it unable to perform an international obligation. This is not absolute as Clause 2 of Article 23 deals with the exceptions that includes the State assuming the risk of such a situation occurring and the act in itself done with a combination of other factors. This will be exploited by other world nations as while COVID-19 might well be an Act of God, the malfeasance on the part of China regarding reporting of information to the world nations is purely intentional and doesn’t come under the ambit of Force majeure. China might well again use a defence by claiming that the act of local authorities cannot be directly equated to the National Government. Article 11 will again shift the game away from China as any wrongful act is considered as an act of the state provided the state acknowledges and adopts the conduct as its own which is obvious in this case.
Thus, there are possibilities of a fierce, full fledged legal battle. However, this might not be the immediate action taken. This is because of Article 56 of the International Health Regulationswhich calls for arbitration to settle any dispute. However, Article 75 again provides for a solution calling for referral to UN General Assembly or The ICJ to solve a dispute when it is not solved through negotiation. Nations might also use other tactics at hand like reaching an amicable settlement through dialogue with China or knock on the doors of the office of Director-General of WHO to intervene. Even if the nations persist on taking China to the International Court of Justice, China has never been in favour of the compulsory jurisdiction of the International Court of Justice and could well differ in this situation too using the Doctrine of Sovereignty. WithIMF suggesting towards a worldwide recessioncourtesy of COVID-19, the International Trade Organization and its approach toward the pandemic is also of keen importance here. Nations might also look at options like trade sanctions on China too.
Thus, it is a tricky situation for the international nations to get what they want out of China as the disease continues its onslaught. Going into any definitive conclusion on the above legal claims is highly impossible and only time will tell us how the plot plays out. However, the lives lost, and the economic losses are unprecedented, one that the world has never seen and hence calls for justice and action from the International Community. This certainly ought to be the moment to set a precedent.
About the author
Pascal Sasil is a student of School of Law, CHRIST(Deemed To Be University). He is pursuing LL.B Hons. and his currently in his 2nd Semester of study. A native of Tuticorin, he is currently based in Bangalore. Writing has been his passion ever since his school days and he has taken part in various prestigious events like the Albert Barrow National Creative Writing Competition. Furthermore, being a voracious debater, his works focus on the contemporary legal and social issues arising in the global society.