This article is written by Avantika Mehndiratta.
“If anything kills over 10 million people in the next few decades, it’s most likely to be a highly infectious virus rather than a war not missiles but microbes.”
Today, as countries stand padlocked amidst heightened tensions, dwindling economies, and uncertainty in future courses of action, all five fingers point to China for introducing Coronavirus to the world. Various countries have also displayed their pent-up anger towards the World Health Organization (WHO) for its failure to prevent and contain the spread of the virus. To impute the liability of the pandemic to China or the World Health Organization (WHO), we must explore the preliminary pursued actions taken by each in measure to the threshold of responsibility set-out by the obligations surrounding them.
China: How the disease spread
The world as a jury, certainly finds blame to be attributed to China, and with good cause. A careful unfolding of the events that led to the coronavirus being spread as wildfire, will reveal in itself iffy and dubious calls being made on the way.
The very first case of a coronavirus patient in the world was found as early as November 2019. A blink later the count has reached 266 in December 2019. It does not take one to rack his brains at this point to pay heed to the rapid rate at which the virus can spread. China, took its own sweet time to respond, with a lockdown being put in place as late as nearing end January, 2020. Did a red alarm not ring in anyone’s ears in the whole of China? Which country would understand the repercussions of letting an apprehension of a phenomena that proliferates amongst people in a couple of days go uninhibited better than China, considering the fact that it gave to the world the SARS-CoV in 2002? Instead of chorusing the possible dangers to the world and raising an alarm, China was busy implicating the only man in China who spoke vocally of the possible spread of an illness that would be similar to the SARS-CoV. Dr Wenliang, under pressure from the police and medical officials was made to sign a declaratory statement that recalled his earlier made threat as a mere unfounded illegal rumour.
Better late than never, China moved to the WHO as late as 31st December 2019, but what’s worse is that it did not contain in this initial report the potential of human-to-human transmission, despite the knowledge that many cases were not emerging from the Huanan Seafood Wholesale Market, and thus must have been emerging from community interaction.
A legal Analysis: Does China have any responsibility?
The international spread of disease is regulated by the International Health Regulations (IHR), 2005. These were adopted by the World Health Assembly in 1960, and they place an obligation on states to prevent the spread of transmissible diseases.
Article 6 of the IHR mandates that a state has to assess the events that occur in a territory, and in the instance that it might constitute a public health emergency they must notify the World Health Organization (WHO) within 24 hours. With cases on the rise in China, it was the responsibility of China under Article 6 to assess the situation and make an informed judgement about the same, thereby communicating to the World Health Organization (WHO) all the information it had. China has failed miserably under this because not only did it submit a report that lacked a careful analysis and thereby an accurate assessment, but also it tried to hide behind the veil of secrecy. This brings me to Article 7 of the IHR through which when a State party has the evidence that an unexpected or unusual public health event may constitute a public health emergency it must act upon it and provide to the World Health Organization (WHO) all the relevant information in accordance with Article 6 irrespective of the origin or source of such information.
Article 3 of the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities which were adopted in 2001 confer upon states a duty to prevent significant transboundary harm. Article 7 of the same, asserts that an assessment of possible transboundary harm should be done. In the Corfu Channel Case, the no harm principle was confirmed by the International Court of Justice. The principle was formulated to mean conferment of an obligation on a state to not knowingly allow its territory to be used for acts that act contrary to the rights of other states.
Additionally, China being a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), has an added responsibility to achieve the right of everyone to enjoy the highest standard of health. One step which provides for this is the prevention, treatment and control of epidemic, endemic, occupational and other diseases as provided by Article 12(2)c of the ICESCR.
China has shown utter disregard to regulations that it is a party to and demonstrated to the world the perfunctory attitude with which it views acknowledging and fulfilling obligations imposed on them. Accordingly, China can certainly be held accountable for such a careless pursuit of a case with life altering ramifications worldwide.
The World Health Organization (WHO): Attribution of blame
One wonders with the response of the World Health Organization (WHO) to help eradicate smallpox, or the SARS CoV, where was it this time to warn the world of such a pandemic so as to help nations to be able to nip the virus in the bud? When the World Health Organization (WHO) has been in existence to deal with a pandemic exactly like this, why was it not able to do so this time?
Even in mid-January 2020 when the rate of the cases was rising increasingly in China, the World Health Organization (WHO) did not demonstrate any urgency of action to carefully assess the situation. Forgoing humanitarian concerns, and fostering politics of the past, the World Health Organization (WHO) vehemently ignored the calls of Taiwan when it screamed of the dangers of the virus spreading across the world. The calls of Taiwan should have rung a bell somewhere because the officials specifically mentioned ‘Atypical pneumonia’ cases being found in Wuhan and these were the type of cases that had been witnessed earlier during the SARS, 2002 which had the potential for human transmission.
When in late January the World Health Organization (WHO) had a meeting to discuss whether the virus can be construed as a Public Health Emergency of International Concern (PHEIC) which falls just short of the threshold of a pandemic, it conveniently denied to do so thus basing their stance primarily on China’s understudied initial report. It was only as late as 11th March, 2020 that the virus got the well-deserved designation of a pandemic. It is obvious, that the World Health Organization (WHO) has tried not to act too hurriedly, because of the flak it has received in the past. For instance, during the HIV outbreak, declaring it a pandemic at an early stage garnered obloquy from all over the world.
However, the World Health Organization (WHO) has proved its inability to utilise the power of its voice and image to beckon to the world, “It’s time to gear up. A virus is on the way.” The repercussions of declaring the virus a pandemic so late, cannot be undervalued because it was only then that the virus was being taken seriously around the world by nations.
The web of politics that led to favouritism towards China, coupled with the delayed responses has all cost the world just a little too much.
In the midst of staggering economies, shattered supply chains, and rising oil prices one can only hope China and the World Health Organization (WHO) realise the brunt of their mistakes and refine their approaches. Each has played its part in propagating the virus to nearly every corner of the world, the effects of which shall be felt for many years to come.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: