This article is written by Sanchita Makhija.
Due to the ongoing Covid-19 pandemic, that has drastically shaken the world and brought in a new type of lifestyle which involves social distancing, plunging economies, country shutdowns, etc., the need for assessing China’s liability in handling the pandemic has become indispensable. Researchers and other investigative sources have discovered that the virus emerged from China, either from an animal market in Wuhan or from a laboratory that conducts studies related to bats in the same city. An even more appalling fact is that the country hid vital information relating to the virus, which resulted in a delay in response from the World Health Organisation and other countries, eventually leading to a major outbreak and humongous loss of life. The emergence of the virus within China and the Chinese government’s failure to promptly and transparently provide requisite information raises questions on the civil and criminal liability of the Chinese government and its officials under international law. According to experts, while China violated several international treaties and statutes, there are mainly two international statutes that shall govern the liability of China, namely, the International Health Regulations and the due diligence principles.
The statutes include several rules and regulations under which China can be held liable for its acts. However, the main difficulty in the assignment of responsibility and accountability to China arises in terms of jurisdiction. To hold China liable, states will need to approach the International Court of Justice and prove sufficient jurisdiction.
International Health Regulations
The 2005 International Health Regulations (IHR) is a legally binding document signed by the members of the World Health Organisation (WHO), that aims to prevent the international spread of diseases and public health risks. In other words, they are the rules that prevent domestic public health emergencies from becoming international problems. The purpose of the IHR is twofold: one is “to prevent, protect against, and control the international spread of the disease”, and the other is to “avoid unnecessary interference with international traffic and trade”(see here). The IHR provides specific guidance to countries for determining when it is necessary to inform the WHO. It states that countries should do the aforementioned only when at least two of the four criteria are met. The criteria are as follows: : (1) the public health impact of the event is serious; (2) the event is unusual or unexpected; (3) there is a significant risk of international spread, and (4) there is a significant risk of international travel or trade restrictions (see here). According to Article 6 of the International Health Regulation, the state being the subject of international law, is bound to notify within 24 hours to the World Health Organisation (WHO), events that constitute a public health emergency of international concern. After notifying, the state should continue to communicate to the WHO timely, accurate and sufficiently detailed public health information available to it on the notified event including case definitions, laboratory results, source, the difficulties faced and support needed in responding to the concern, etc. Article 7 of the same statute also requires a state to provide “timely, accurate and sufficiently detailed and available public health information” regarding a public health emergency.
In the Corfu Channel Case (1949), the International Court of Justice (ICJ) held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other states.” (see here). This is an epoch-making obligation, as brisk and circumstantial information about the diseases have proven to be valuable in spreading awareness and taking precautions before any harm is precipitated. China as a member of the WHO has failed to comply with the provisions of the IHR, as it intentionally withheld critical information related to the virus. According to various reports, sufficient proof has been collected to prove that the country intentionally manipulated evidence, tampered with witnesses, fabricated lies to deceive the authorities, and refused outside help. This led to the worsening of the state of the pandemic (see here). China was responsible for silencing Dr. Li and others like him, who tried to warn the government about the severity of the outbreak. China ran afoul of the WHO’s instruction that governments must adequately educate and inform their healthcare workers about the risks associated with taking care of patients. In addition, China also rejected the offer of the World Health Organization of epidemic investigative assistance despite pressure from the global community (see here).
Article 2 of the Draft Article on Responsibility of States for Internationally Wrongful Act, states that an international wrong which results from the breach by a State of an international obligation, as a whole constitutes an international crime. Article 10 of the IHR provides that each state party is obligated to verify public health emergencies of international concern when WHO requests verification (see here). China can be held liable under the draft, when Article 6 and Article 10 of the IHR are read together, which obligate the state to provide information about major public health risks when the WHO seeks verification.
Any dispute arising under the IHR can be submitted to the International Court of Justice, a court that hears disputes of international concern arising between two countries with the consent of the states. Article 75 of the WHO’s Constitution provides for prior consent of the state parties. It states that “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice.” The International Court of Justice has previously acknowledged that Article 75 of the WHO’s Constitution is included under its jurisdiction (see here). The ICJ in Ukraine v. Russia, Preliminary Objections, Judgment, para. 113) interpreted Article 22 of the CERD. If the same interpretation is followed in the case of Article 75 of the WHO’s Constitution, then a State would not need to approach the World Health Assembly in order to sue China. The mere satisfaction of the negotiation conditions would be deemed enough (see here). However, whether the WHO’s Constitution includes the IHR under prior consent will be under the discretion of the International Court of Justice.
Principles of due diligence
Due diligence is deemed to be the heart of the United Nations Guiding Principles on Business and Human Rights, which establishes the main international parameters for contemplating corporate responsibility for violation of human rights. The Guiding Principles invoke two totally different ideas of due diligence: the primary is a method to manage business risks and the second is the standard of conduct required to discharge an obligation. (see here). These principles have been not defined under any international rule or statute and the international community has implicitly consented to them. Therefore, they are treated as an international obligation.
The principles can prove to be really important in the quest to ascertain the liability of China. According to the principles, the state’s conduct should be what is reasonably expected of it, while responding to harm or danger. China can be held accountable under the aforementioned principles as it failed to take proper and reasonable action. The country initially even denied the transmission of the virus by human to human contact. It suppressed vital information in cold-blood which became a hindrance in spreading awareness about the virus. A study by the University of Southampton reveals that if the Chinese authorities had acted one week, two weeks, or three weeks earlier, cases could have been reduced by 66 percent, 86 percent, and 95 percent respectively, significantly limiting the geographical spread of the disease (see here). Though the International Court of Justice does not currently have the authority to deal with matters of due diligence, there is a probability that it may be authorised for dealing with such matters.
Other international regulations
There are many other internationally recognized norms that impose obligations on a state to control and curb the spread of outbreaks. China has voluntarily recognized these principles and obligations by adopting the Universal Declaration of Human Rights, becoming a signatory to the International Covenant on Civil and Political Rights, and signing and ratifying the International Covenant on Economic, Social, and Cultural Rights (see here).
Article 12 of the International Covenant on Economic, Social, and Cultural Rights talks about the duty of the parties to the Covenant to prevent, treat, and control epidemic, endemic, occupational, and other diseases. It also highlights the creation of conditions which would assure to all medical service and medical attention in the event of sickness (see here).
The International Law Commission’s 2001 Responsibility of States for Internationally Wrongful Acts is another instrument that helps in assigning liability to China. Article 1 of the Responsibility of States for internationally wrongful acts holds states accountable and responsible for their internationally wrongful acts. “Wrongful acts” as explained under Article 2 of the same instrument means acts that are attributable to the state and violate an international obligation. The state is liable for its actions when any branch of the state, including executive, legislative, judicial functions of the central government are in charge of the actions. While the virus’ spread began at a very intermediate level, the failures can be attributed to the highest authorities, including the general secretary of the Chinese Communist Party, Xi Jinping, as their inaction led to the untimely spread of the virus. A Chinese business tycoon, Ren Zhiqiang, severely criticised the leader for his response to the virus, even going to the extent of calling him a ‘power hungry clown’.
The accountability flows from the intermediate level to Mr. Jinping himself, as they are all organs of the state. An organ of the state refers to any individual or entity that functions in observance of the national law. Even if China repudiates any responsibility related to the conduct by local authorities or state media as it is not directly related to the national government, such actions are nevertheless accorded that status if and to the extent the state acknowledged and adopted the conduct as its own, as was done by the officials in Beijing (Article 11) (see here).
There is one more alternative that the states can resort to. Instead of litigation, the states can resort to other means of lawful countermeasures. The law of state responsibility permits a state to take countermeasures against another country in case of injury, by the suspension of compliance with obligations owed to that particular state. However, the countermeasures must not be disproportionate to the harm inflicted. The international community can effectively resort to this option.
After conducting research from various resources, it can be fairly concluded that the current outbreak of coronavirus is a direct result of the negligence of China. The country deliberately tampered with information related to the virus, which could have saved innumerable lives and millions of dollars. The negligence has resulted in the dropping of the Gross Domestic Product of various countries, India being the most significant victim, with a reported 23.9% contraction in the economy. Researchers from various countries have estimated that China should be liable for a compensation extending up to $6 trillion to those who suffered grievances.
China can be held accountable under various treaties, statutes, and principles. Countries can also choose to resort to other lawful countermeasures as already described in the article. The International Health Regulations and the Due Diligence principles form the most important basis of this hypothesis. However, the countries challenging China will face hypercritical difficulties in proving sufficient jurisdiction at the International Court of Justice. Even if jurisdiction is sufficiently proven under international law, a country might be legally responsible or liable and yet the international community might not have sufficient resources and ability to impose the legal consequences of the act on the country. Therefore, there is no assurance that China would comply with the order of international bodies. If the international community fails to impose sufficient liability and accountability on China for its attempts to cover up the disease’s seriousness, or worse yet, if the country ends up receiving a commendation for its actions- then no country will ever acknowledge its mistakes in case an epidemic or pandemic breaks out. The resultant damage could also lead to the usage of epidemics and pandemics by various countries to improve their position on a global level.
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