This article is written by Alokita Tangri, from Amity Law School, Delhi, Guru Gobind Singh Indraprastha University. It discusses China’s role in the spread of Covid-19 and the violation of International Law principles by the State. It further talks about the global backlash faced by China for damages caused to life and economy to the international community.

Introduction

As the world is crippling under the devastating effects of Covid-19, photographs and videos of the HOHA Electronic Music Festival at the Maya Beach Water Park in Wuhan have gone viral. Wuhan, the epicentre of the coronavirus outbreak, underwent a stringent lockdown on January 23, 2020, that lasted for 76 days. While fingers are being pointed at China for having intentionally concealed critical information about the discovery and severity of the novel coronavirus, are these images a mockery of the world? Will China be made to face repercussions for its initial silence?

Overview of the situation 

On December 31, 2019, the Chinese Country Office of the World Health Organisation (hereinafter referred to as WHO) was alerted about the detection of pneumonia cases of an unknown cause in Wuhan, a city in the Hubei Province of China. It has been suspected that the virus originated from the Huanan Seafood Wholesale Market in Wuhan. However, according to a study published by ‘The Lancet’ on January 24, 2020, the market may not have been the genesis of the outbreak as one of the first known patients had no exposure to the market. As per government data seen by the South China Morning Post, the first known case of COVID-19 or SARS-CoV-2 can be traced back to as early as November 17, 2019, weeks before the emergence of a new virus was announced by the authorities. 

The Chinese State evidently misrepresented the situation concerning the outbreak to its citizens, providing people with false assurances in the face of the approaching celebrations of the Lunar New Year. The government ordered doctors in Wuhan as well as the entire country to abstain from disclosing any information to the public regarding the new disease. Researchers and doctors who tried to inform the citizens about the emergence of a novel coronavirus disease were either arrested or simply ‘disappeared’. On December 30, 2019, Dr Li Wenliang, an ophthalmologist working at the centre of the outbreak, was the whistle-blower who tried to warn his fellow medics in a chat group to wear protective gear in order to avoid infection. This concern came after he noticed a SARS-like virus in seven cases. It was, however, discovered later that it was a new form of coronavirus. After four days he was summoned to the Public Security Bureau and was made to sign a letter accusing him of spreading false information and severely disturbing social order. He was amongst eight people who were under investigation for spreading rumours. On January 20, 2020, the outbreak was declared an emergency in China. In the early days of February, the hero who raised the alarm of an outbreak succumbed to the infection. 

Did China violate any International legal provision 

The People’s Republic of China delayed in informing the international community about the outbreak and extent of a deadly disease that was spreading within the borders of the country. As early as January 2, 2020, the Chinese government was aware that the novel coronavirus was causing treatment resistance illness among an ever-increasing number of patients and was likely to be transmitted by humans. China kept this information under wraps. It was only on January 21, 2020, that China informed WHO of the true nature of the disease-causing virus. This delay cost the entire world time that was imperative to prevent the deadly contagious disease from spilling over the borders into their own countries. 

International Health Regulations, 2005

As per the Law on State Responsibility, the suppression of crucial information about the novel coronavirus by China was a violation of the State’s international obligations under the International Health Regulations (hereinafter referred to as IHR) of 2005, a treaty that was established under the auspices of WHO to assist the international community in combating the escalation of infectious diseases. China is one of the 194 member states which are party to these legally binding regulations. The application of this treaty applies to: 

1. Any illness that presents or has the ability to present significant harm to humans; or
2. Any public health emergency that is of international concern. 

The latter refers to any event that is extraordinary in nature and may pose a risk to the health of other nations by the spread of a disease across international borders and may call for a coordinated global response. As a member state, China, under Article 6 of the treaty, had a duty to timely notify WHO about the viral outbreak. Once the nature of the virus is determined, a member state is obligated to inform the WHO within 24 hours of such determination. Article 7 of IHR states that if a nation has any evidence of an unusual or unexpected public health situation constituting a public health emergency of international concern within its borders, it is obligated to give all the relevant information to WHO regardless of the fact whether the public health event originated within its territory or not. In furtherance of the same, China was required to continuously provide accurate, timely, and detailed information about the outbreak to WHO after its initial notification. If China had complied with the above obligations, there would have been significantly fewer cases of COVID-19 across the globe.

Corfu Channel case (1949)

In Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania), the International Court Of Justice (hereinafter referred  to as ICJ) articulated the principle that ‘no state may knowingly allow its territory to be used to commit acts that are in contravention of the rights of any other state.’ According to this principle, as laid down in the above case, China is obligated to ensure that the rights of other states are not harmed by the acts of individuals within its territory. The harmful acts of concealing and misrepresenting information about the novel coronavirus by the Chinese Public Officials are acts that are attributable to the State. 

International Law Commission Report (53rd session)

While the international conduct of China concerning COVID-19 has been wrongful, the question that arises is whether it is unlawful? If yes, what is the remedy available to other states? 

As per Article 1 of the International Law Commission, 2001, a State has international responsibility if it commits an internationally wrongful act. This Article restates the Law of State Responsibility and was developed to reflect a fundamental principle of international customary law that binds all nations together. From local authorities in Wuhan to Chinese leader Xi Jinping, all are organs of the People’s Republic of China and, therefore, their conduct is attributable to China. According to Article 11, an ‘organ of the state’ would include any person or entity that acts in accordance with the national law. Article 28 talks about the legal responsibility of an internationally wrongful act. Consequently, China is obligated to bear the legal responsibility of its internationally wrongful acts of failing to share information with the WHO and the world expeditiously and transparently. The University of Southampton created an epidemiological model that shows that the number of people affected by the virus would have been reduced by 66 percent, 86 percent, and 95 percent if China had acted responsibly one, two, or three weeks early, respectively. 

Under Article 31, the state that commits the wrongful act is required to make full reparation of the injury. The injury includes damages that can be both moral and material. Article 34 lays down that an injured state is entitled to full reparation in the form of: 

1. Restitution in kind (Article 35);
2. Compensation (Article 36);
3. Satisfaction (Article 37); and
4. Guarantee of non-repetition (Article 48).

Is China solely responsible for the pandemic

The outbreak of coronavirus was initially downplayed by China and the International Community was misled into believing that there was no risk of human-to-human transmission of the novel coronavirus. Not only did China deny that the virus could be transmitted between humans, but it also pressured countries to not close their borders to China. This call to keep borders open was supported by WHO  and on January 10, 2020, WHO recommended countries to keep trade and travel open with China. On January 14, 2020, WHO posted that ‘preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the coronavirus’. COVID-19 had spread to 25 countries by January 20, 2020. On January 23, 2020, China took the drastic step of locking down 50 million people in and around the epicentre. This was a warning sign for the rest of the world and led to the questioning of WHO’s role in the spread of the virus. On January 24, 2020, WHO informed the world that new epidemiological evidence reinforced that COVID-19 could be transmitted from one individual to the other. It was on January 30, 2020, that WHO finally declared the outbreak as a Public Health Emergency of International Concern, and on March 11, 2020, COVID-19 was declared a ‘pandemic’. Was WHO too late in stating the true nature of the virus?

Many nations have held WHO responsible for covering up and severely mismanaging the rapid spread of the virus. Taiwan, an East Asian country that has not required a lockdown to fight COVID-19, accused WHO for having failed to communicate early warnings about the human-to-human transmission of the virus, which resulted in slowing international response to the pandemic. Health officials in Taiwan have alleged that they had alerted the WHO about the risk of the virus being transmitted from one individual to another as early as the end of December 2019, but WHO abstained from sharing these concerns with other countries. 

China’s lack of transparency and failure to nip the virus at its source coupled with inaccurate statements of WHO and inadequate emergency measures of the global community became the perfect recipe for disaster. Therefore, China is responsible for the pandemic to a great extent, however, it cannot be denied that WHO and unsuccessful emergency protocols of many countries also had a role to play in further worsening the situation.

Taiwan’s Email to WHO

On December 31, 2019, the deputy director-general of Taiwan’s Centres for Disease Control (hereinafter referred to as CDC), Dr Lo Yi-Chun received information about the emergence of cases of pneumonia of unknown cause in Wuhan. The original post in China by Dr Li Wenliang had already been removed but screenshots of the same had been reposted on PTT, a popular Taiwanese online forum. It was feared that Severe Acute Respiratory Syndrome, which had killed hundreds of people in 2002 and 2003, had resurged. Looking at the lab report images, Dr Lo suspected that there was something new. Taiwan sent an Email to WHO, asking for further information on the matter; however, the WHO failed to act on the early waning. 

The US warns China

While the world has been brought to a standstill by the pandemic, there are growing tensions in US-China relations over the mishandling and misrepresentation of information about the novel coronavirus by China. Countries have suffered irreparable damage due to COVID-19 and there is human suffering, death, sickness, and economic disruption across the globe. Mike Pompeo, the US Secretary of State, has sharply criticized China for keeping the world in the dark and not sharing relevant information that will help the world to prevent further cases.  

On May 29,  2020, President Trump proclaimed to block certain Chinese nationals of graduate and above graduate level, allegedly associated with the Chinese military, from entering the USA. America has also tightened regulations against Chinese investments in the country. It has further issued new rules according to which visa guidelines for journalists from China will be tightened. As per these regulations, Chinese reporters will get a visa limit up to 90 days which can be subject to extension. As tensions of travel and trade escalated between the two countries, the Trump administration made a move of blocking Chinese airlines from flying into the  United  States. A bill was signed into law by President Trump that imposes new sanctions on Chinese businesses, banks, and individuals who are in support of China’s crackdown on Hong Kong. 

Cases filed in the USA against China

In an effort to hold China responsible, States, small businesses, and individuals have filed at least 14 different suits against China on account of its perceived culpability in the escalation of the crisis into a pandemic. The major challenge faced by these suits is the presumptive sovereign immunity of China. As per the Foreign Sovereign Immunities Act of 1976 (hereinafter referred to as FSIA), a Sovereign State, along with its instrumentalities and agencies, is immune from a suit in the USA. However, the Plaintiffs have claimed that their claims are not barred by FSIA. Regardless of how they are pleaded, these suits have a steep immunity barrier.

Missouri ex rel. Schmitt v. People’s Republic of China, No. 1:20-cv-99 (E.D. Mo. Apr. 21, 2020)

On April 21, 2020, Missouri became the first state in the USA to file a suit against China, their ruling party, and their public officials and institutions in the US District Court for the Eastern District of Missouri. It has been alleged that the authorities in China deceived the public, arrested whistle-blowers, suppressed information that was crucial in combating the pandemic and denied the risk of human-to-human transmission of the virus in the face of mounting evidence. It has also been alleged that China destroyed critical medical research resulting in millions of people getting exposed to the virus and also hoarded Personal Protective Equipment (PPE). New York Times gathered data, according to which nearly 175,000 people left Wuhan to travel for the Lunar New Year on January 1, 2020, alone. Due to Covid-19, Missourians suffered unprecedented unemployment and heavy economic loss. Also, there was a great loss of life, sickness, and an effect on the mental health of citizens. The lawsuit seeks relief on account of:

1. Public nuisance
2. Abnormally dangerous activities and
3. Breach of duty.

The Plaintiff seeks damages in billions of dollars along with injunctive relief. It is unclear what that would exactly look like.

Buzz Photo v. People’s Republic of China, No. 3:20-cv-656 (N.D. Tex. Mar. 17, 2020)

In Buzz Photo v. The People’s Republic of China, filed in the United States District Court for the Northern District of Texas, the Plaintiffs have accused China and its military of permitting the release of the virus from a bioweapons facility that is illegal and has been internationally outlawed. They have further alleged that the coronavirus was engineered in Chinese military laboratories and constitutes a weapon of mass destruction. The Plaintiffs have claimed that the defendants:

1. Aided and abetted acts of international terrorism;
2. Provided material support to terrorists;
3. Caused wrongful deaths;
4. Caused negligence;
5. Committed battery and assault;
6. Provided material support to terrorists.

The  Plaintiffs seek damages of U.S.D. 20 trillion.

Impact on China’s global relations

China has been successful in combating COVID-19 within its borders. However, while the country is celebrating its victory over the novel coronavirus, blame and hostility against China have intensified as the world struggles with the pandemic. All across the globe, there is anger over China’s initial mishandling of the outbreak. While the world trade network managed to hold ground amidst lockdowns, the heavy economic costs fueled calls for alternatives to China and greater self-sufficiency. 

Indo-China relations

The Indian government is concerned that China is taking advantage of the pandemic for:

1. Acquiring vulnerable Indian companies;
2. Increasing Chinese influence in the region; and
3. Portraying the Chinese leadership role and system as being most effective. 

The government of India announced FDI (hereinafter referred to as FDI) restrictions from all the countries whose land boundaries are shared with India, an action undoubtedly directed against China. India’s assistance to China has been highlighted by its officials. India has acknowledged China’s facilitation while emphasizing that supplies procured from China are purely commercial. In the backdrop of COVID-19, rising tensions between the two nations escalated after clashes at the border and the Indian government took the drastic step of banning 224 Chinese mobile applications. Further, the anti-China sentiment is pervasive throughout India as people blame China for the pandemic.

Sino-Japanese relations

Relations between China and Japan have been volatile for over a decade. There has been a  longstanding economic interdependence between the two nations. Japan has expressed its concerns over having its supply chains being unduly reliant on China. These concerns were brought to light at the beginning of the epidemic itself when discontinuance of Chinese supply chains resulted in a shortage of essential products in Japan. In this backdrop, Japan took two major policy decisions to bring back production bases to China. These are:

1. On April 7, 2020, Japan allocated 220 billion yen (U.S.D. 2 billion) for companies to shift production back home and 23.5 billion yen for those seeking to diversify their bases in other Southeast Asian countries. 
2. In April 2020, a special economic team was set up by the National Security Council (NSC) for formulating a new national economic security strategy before the year-end. 

This limited budget allocation is not enough to entice Japanese companies to relocate but it gives China a timely notice to understand Japan’s true sentiments. 

Australia-China relations

As the pandemic rages on, the ties between Australia and China are deteriorating. In April 2020, Australia demanded an independent investigation into the origin and international response to Covid-19, including the role of WHO in handling the situation. This resolution was unanimously approved and was sponsored by the  European Union (hereinafter referred to as EU). As a reaction to the demand for an inquiry, China banned beef import from Australia’s four largest abattoirs and also imposed over 80 percent tariffs on barley imports from  Australia.  

United Kingdom-China relations

The United Kingdom has been one of the most eager European partners to China. This relation, however, might get affected by the ongoing crisis. In April 2020, Britain voiced its support for the meaningful participation of Taiwan in international organizations, including the World Health Assembly.  The issue of China’s controversial security law for Hong Kong was raised by the UK, angering the Chinese government. In a move to shield its domestic firms from Chinese investors, the UK has tweaked its FDI laws. The British Prime Minister, Boris Johnson, has stated that Britain would offer visas to millions of Hong Kongers and a possible UK citizenship route if China acted on its plan to enact the National Security Law. The UK is trying to limit the role of Huawei by holding talks with NEC Corp., a Japanese Technology Company, to diversify the range of 5G network providers.

European Union-China relations

On March 25, 2020, the European Union Commission released a list of guidelines for coordinating an approach among the member states for FDI screening. The aim of these guidelines was to protect the assets of EU States from Chinese companies. The  EU has proclaimed that EU-China relations are unlikely to change after the novel coronavirus pandemic. 

The German government is set in motion to amend the German Foreign Trade and Payments Act, 1961 to allow government intervention even in case of probable impairment to national security. Italy has widened the scope of the ‘Golden Powers Law’, a law that curbs FDI in sensitive sectors. 

Impact on China’s economy 

The Novel Coronavirus disease has inevitably disrupted both the domestic economy and international supply chains. In the first three months of the year, the second-largest world economy had shrunk by 6.8 percent. Data from the Ministry of Commerce of the People’s Republic of China (MOFCOM) shows that the pandemic severely affected FDI flows into China. In the first three months of 2020, FDI tumbled 10.8 percent year on year to U.S.D. 30.7 billion (about 216.19 billion yuan). FDI dropped 14.1 percent compared with the earlier year in March alone. To restore confidence among foreign investors to boost FDI and to tackle the sharp downturn of the economy, China took several measures like:

1. Rolling out a comprehensive package of financial, monetary, fiscal and trade policies;
2. Cutting down the ‘negative list’, i.e. a list of industries in which FDI is banned or kept within limits.  E.g. rare earth mining and auto production industries; and
3. Giving tax benefits. 

These measures have played instrumental in stabilizing foreign investment in China and preventing a large scale exodus of foreign investors from China. 

Reversing the economic impact

China is the first major economy that has recovered from the pandemic.  As Europe and the United States are going through a recession, China had a growth of 3.2 percent in its second quarter. Even as global businesses and economies continue to be affected by the ongoing Covid-19 pandemic, Chinese companies are seen investing in and acquiring distressed foreign assets at a cheaper price in strategic locations. Between January and April 2020, China made 145 investments, and 57 Mergers and Acquisitions (hereinafter referred to as M&A) deals worth U.S.D. 4.5 billion and U.S.D. 9.9 billion respectively. The US, the UK, Hong Kong, Germany, Japan, France, Australia, India, and South Korea were key investment destinations and the important locations for Chinese firms for M&A included the US, Germany, the UK, India, France, and Canada. Since a majority of the big Chinese companies are owned by the State, governments across the globe are seeing these investments as politically motivated moves which are a potential threat to their economies. To prevent investments and hostile takeovers from China, many countries have brought in new FDI rules or tightened the already existing ones. 

China pledged funding to WHO

On May 18, 2020, the United States of America, in a letter to Dr Tedros Adhanom Ghebreyesus, Director-General of WHO, stated that it had temporarily suspended contributions to WHO on April 14, 2020. This step was taken in light of the pending investigations of the organization’s failed response to the novel coronavirus outbreak. It was added that if WHO did not commit to substantive improvements within 30 days, the fund freeze would become permanent and the USA would reconsider its membership in the organization. In April 2020, the USA funding to the organization was temporarily suspended for 60 days, which was seen as an unpopular move. Approximately, U.S.D.  400 million have been halted in annual funds since April. What changes were required to restore funding were not specified. 

In response to this move, China pledged to commit additional funding of U.S.D. 30 million to the WHO. This amount is one-third of its existing biennial donation. The Chinese leader Xi Jinping also pledged U.S.D. 2 billion over a period of two years in aid to assist other countries in dealing with the pandemic.

Other repercussions

China is confronted with a credibility challenge. It is being accused of orchestrating a deliberate cover-up of the novel coronavirus in the initial stage of its spread. There is anger at home and abroad over the death of the ‘whistle-blower’, Dr Li Wenliang. China’s political repression is being criticized through the crisis. 

‘China Plus One’

China Plus One is a strategy to avoid investing solely in China by diversifying business operations in other countries. Since the disruptions caused by Covid-19, many countries have started adopting this policy. The governments of Taiwan and Japan, which have been among China’s biggest investors are making moves to shift production from China. 

Conclusion

The COVID-19 pandemic has brought the world to a standstill. Never in the history of humankind have all the countries across the globe faced a common enemy. With over 2.3 million reported cases and over 0.8 million deaths worldwide, the disease has caused unprecedented loss to live, health, and economy. The origin of the virus is still unclear, and its long-term effects on the health of recovered patients can only be anticipated. With no end in sight and scare of second waves, scientists are rushing to create a vaccine. What is in store for the world and what repercussions will China face for its misinformation and mishandling of COVID-19? Only time will tell.

References

• https://www.livemint.com/news/world/a-timeline-of-how-china-misled-the-world-on-coronavirus-outbreak-11585273347248.html
• https://opinion.inquirer.net/128226/china-international-law-and-covid-19
• https://www.chinafile.com/conversation/how-coronavirus-outbreak-affecting-chinas-relations-its-asian-neighbors
• https://www.orfonline.org/expert-speak/japans-china-dilemma-in-the-post-covid19-situation-68468/
• https://www.globaldata.com/chinas-acquisitions-and-investments-in-foreign-firms-amid-covid-19-raise-eyebrows-says-globaldata/
• https://zeenews.india.com/world/covid-19-world-powers-seek-action-against-china-check-their-reactions-2292800.html
• https://www.eleventhcolumn.com/2020/05/31/covid-19-has-pushed-australia-china-relations-into-critical-condition/
• https://www.cnbc.com/2020/07/18/op-ed-the-cold-war-between-us-and-china-just-got-a-lot-hotter.html
• https://thediplomat.com/2020/05/chinas-daunting-post-covid-challenges/=

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