Perfecting the anatomy of a pandemic bares semblance to finding a needle in a haystack; it seems nearly impossible. The unprecedented outbreak of Corona virus has resulted in worldwide mayhem, tragedy and most significantly the fear of an unbeknownst future.
The scale of damage caused by the outbreak has prompted affected countries to gauge the legal accountability of China in an international framework, if at all any. The virus has altered the socio-political, economic, and psychological fabric of society permanently. To ignore the culpability of China in its contribution to the spread of corona virus would be remiss by the international community. In this article, by tracing the trajectory of the virus and highlighting universal obligations pertaining to public health and safety, it is argued that the constraints of international law and the geo-politics of contemporary times make it increasingly difficult to indict China and effectuate legal redress.
- Locating China’s role in the outbreak
Origin of COVID-19
The COVID-19 pandemic is not an act of god, but prima facie arises from acts of omission and commission by the Chinese states. The origin of the virus has been traced back to a wet market in the province of Wuhan. The market is conducive to the spread of zoonotic diseases because of butchering of live animals, difficulty in maintaining high standards of hygiene and its dense population.Conspiracy theories regarding the source of the virus exist in abundance but have been consistently denied and scientists studying the genetic code of the virus have traced it back to bats. Individuals who visited the market contracted viral pneumonia caused by the novel corona virus. However, a report published in January of 2020 contained the information that the first case of COVID-19 was void of connection to the seafood market.
As the novel corona virus incubated in Wuhan from mid-December to mid-January, the Chinese state made evidently intentional misrepresentations to its people concerning the outbreak, providing false assurances to the population preceding the approach of the Lunar New Year celebrations on Jan. 25. Additionally, doctors and other medical officers who hinted at the outbreak of a contagion were intimidated, reprimanded and asked to withdraw the information they circulated due it being ‘false information’. The chicanery of Chinese authorities extended to the Municipal Health Commission of Wuhan issuing a circular stating that there was no human to human spread of the disease, and it was seasonal flue that could be controlled and prevented.
On December 31st, nearly a month after several Chinese were diagnosed with respiratory related problems without a known cause, China reported the outbreak of a suspected zoonosis to WHO. On January 7th, WHO was notified that the pathogen was a novel corona virus. The International Committee on Taxonomy of Viruses renamed it SARS-CoV-2 because of its close genetic similarity to the SARS corona virus that caused the SARS epidemic in 2002-2003. By February 2nd, the virus had affected more than 25 countries and yet WHO declared it as a pandemic only on March 11th. Expeditious information was not delivered to WHO, and even with the scant information they received they were being misled. Many countries depend on WHO for issues regarding public health and the delay in declaration simmered down the severity of the outbreak and translated as the virus being defeat-able and short-lived. For many countries, there was no time to prepare for the pandemic that was looming large and threatening the lives and economy of the country.
2. International regulations governing public health, safety, and infectious diseases
International Health Regulations of 2005:
Domestic laws are precluded from adjudicating upon acts of foreign governments in lieu of principle of sovereign immunity. Therefore, legal compensation must be sought via a supranational legal framework. The World Health Organisation, (WHO) a body under the United Nations, is responsible for matters of health on an international scale. In the year 2005, the WHO adopted and amended version of International Health Regulations with over 190 countries taking membership of IHR, China being one among them. For decades, the IHR have been the primary global, legally binding agreement addressing the risks of international infectious disease transmission. The intent behind IHR is to facilitate countries in their preparation for such contagions and ensure that there is no irregularity in the information being circulated.
Article 6 of the Regulations makes it mandatory for every party to convey information to WHO within the timeframe of twenty-four hours if any event possesses the power to endanger public health on an international scale. In continuation, Article 7imposes an obligation to share all information regarding the crisis and keep WHO updated. Article 11reiterates the role of WHO insofar as its function as an information provider goes; it requires WHO to dispense all such data once it has been authenticated, with other countries to enable prior enactment of preventative measures. China was in clear contravention of Articles 6 and 7 which subsequently led to a delay in dissemination of information by WHO as mandated by Article 11. Article 42 is also relevant in wake of COVID-19. It requires a member state to enact health measures pursuant to which relevant provisions of IHR shall be initiated and completed any delay or discrimination. The nexus behind creation of IHR was to ensure that every country is as prepared as it can be upon the occurrence of such unforeseen contagions. The purpose stands defeated due to China not exercising its due diligence. Despite such a surveillance system being in place, it is not enough to seek legal compensation because the IHR is silent on whether such contravention attracts compensation to those parties adversely affected by harms caused by the same.
Article 56 of IHR provides for dispute resolution via arbitration. However, it comes with a rider that China must consent to the arbitration, which is highly unlikely. Moreover, another pre-requisite to trigger the operation of Article 56 is the existence of a ‘dispute’. To satisfy these two conditions is quite a task, and this ties back to the central argument of how despite having multiple conventions in place the constraints of international law make it very difficult to seek legal reparations.
Transboundary harm principle:
Amidst uncertainty regarding the source of the virus, the factum of it emanating in China cannot be ignored. China has homed other fatal diseases in the past, scholars have conducted research that strongly supports shutting down of wet markets, all to no avail. Wet markets have been reopened in China, as of April 1st, in Wuhan which was the epicentre of the outbreak. It appears China did not even ‘bat’ an eyelid before making such a decision.
China has displayedrecalcitrance, time and again when it comes to shutting down of such markets. High profitability of the market takes centre stage in an economic frenzied country, and the risk is ignored. In 1941, the foundation for the transboundary harm principle was laid down in Trail Smelter Arbitration US v. Canada. In brief, the award held that no government could use its territory in a manner that is detrimental to the territory of another. In its nascent stages, the principle applied only to physical pollutants but in contemporary times has been expanded to include any threat that endangers the quality of life, and the health of human beings. The principle is a cornerstone of international environmental law and mutatis mutandi can be applied to spread of COVID-19 emanating from wet markets. Violation of this principle is grounds for demanding legal compensation by those economies that have taken a hit but can also act as an impetus for China to enact a legislation banning markets that lead to such outbreaks.
3. International Court of Justice as forum for seeking redressal
Jurisdiction of the ICJ:
The International Court of Justice (ICJ) has the jurisdiction to deliberate upon the damage caused by China in violating principles of international law and the IHR provisions because of Article 75 of the WHO Constitution. For Article 75 to be invoked, there are two conditions that need to be met. Firstly, the subject matter of the dispute must be a dispute or question of interpretation or application of the WHO Constitution. Secondly, the dispute shall be referred to the ICJ only if it is not settled by negotiation or by the Health Assembly, if there is no prior agreed upon method of dispute resolution by the parties involved.
A relaxation of the condition of negotiation has been observed in previous precedents such as the recent Kulbushan Jadhav case, fought between India and Pakistan. The challenge lies in proving the existence of a ‘dispute’ which is a sine qua non of Article 75. The burden of proving the existence of a dispute lies on the applicant party and cannot be dispensed with. It is very difficult to prove such existence, thereby ruling out the possibility of approaching the ICJ under this mechanism.
Advisory opinion of the ICJ:
A possible solution to the problem contemplated above would be to seek the advisory jurisdiction of the ICJ. The sole criterion to be fulfilled for requesting an advisory opinion is that the request should be a legal question within the scope of the activities of the requesting organ.As set by precedent, the ICJ has jurisdiction to delivery advisory opinions on matters of ‘public health’ and the ongoing pandemic falls squarely within the corners of the same. The drawback of an advisory opinion is that it is not binding upon the parties. However, they help in building the case of aggrieved parties before non-legal bodies such as the General Assembly. Moreover, in the landmark, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, the advisory opinion rendered by the ICJ contained reparations for the damage caused to the aggrieved party. This sets an imperative precedent and brings within legally permissible limits redress that affected countries might seek.
4. Limitations on seeking redress
Political and economic power of China:
China is a superpower in today’s world and its influence across multiple sectors cannot be ignored. Claiming that China misrepresented information intentionally and taking China to court is a daunting task, highly limited by the politics of today’s global scenario. While it palpable that China has violated principles of international law and provisions of regulations to which it is a member, it is also clear that no country is willing to burden themselves with the task of pursuing legal claims simple because of the hegemony China holds.
Inherent positivist bias of international law:
The modus operandi of international law is based on principles of mutual obligation, consent, reciprocity and respecting the sovereignty of the State. However, in situations like what the world is facing today, these principles fall foul of what is required; stringent measures to secure legal accountability. The history of international law has played out in such a manner that it is safe to assume the sovereignty of a state is supreme. This allows China to evade legal accountability by simply not consenting to be a part of any proceeding which pursues legal claims against them.
Upon a perusal of international resolution mechanisms, it is clear that fortune favours the powerful. The travesty of COVID-19 continues to impact countries worldwide and is close to driving many into economic suicide. It has become a matter of lives versus livelihood and the need of the hour is to rethink redressal procedures and nurture anapproach where the voice of the aggrieved, independent of political and economic standing is championed.
About the author
Meghana Kudligi is a third year law student at O.P Jindal Global University. Apart from spending most of her time diving into the world of books, she enjoy watching romantic comedies with a fierce passion. If she is not reading a book, or binge-watching cliche movies, she is mostly learning and informing herself about the lives of the marginalised and under-privileged.