JURIST Guest Columnist Abhishek Kumar, a second year student at Dr. Ram Manohar Lohiya Nation Law University in Lucknow, India, discusses possible international legal regimes that could be employed to hold China responsible for COVID-19...
In the late 1920s scratch farmers and loggers were facing an unseen threat in the isolated forests of the inland Pacific Northwest of America. Crops were scarred and charred. They had stunted timber yields. The culprit turned out to be a huge zinc smelter In Trail, British Columbia that bellowed sulfurous fumes from across the Canadian border. In the impacted regions of the United States, the smelter was secretly laying waste to livelihoods, economies and habitats. In the end, the U.S. State Department took up the cause of the affected people. The Canadian government – desiring mutually beneficial trade ties with its southern neighbor – stepped in for the smelter and decided to have international arbitration settle the issues of liability, penalties, and compensation.
Today, law students around the world are studying the ‘Trail Smelter Arbitration’ as a foundational case in contemporary international law. The arbitration panel announced two revolutionary legal concepts relating to trans-boundary damages in its judgments. First, that no nation has the right to use or require its territory to cause harm to another’s territory or to the property or person(s) therein. Second, that a polluting state has to compensate for the harm caused by polluting activities on their own territory. Canada was eventually forced to pay US reparations.
The People’s Republic of China achieved tremendous economic growth, rapid poverty reduction and complete integration into the world economy over a period of 35 years. China used the wealth gained from these integrations to construct infrastructure for the country and to expand into the second largest economy in the world. But all the miles of new high-speed rail lines and the glistening new cities erected helped to obscure the fact that the governing Communist Party was not modernizing the fundamentals of China’s regulatory framework, including in the food and drug sectors. Nor did China modernize labor standards and the rule of law. When it came to public health laws, China remained well behind the norms of the West, even as its economy and social life became more enmeshed with those of the West. This is significant because China’s goods enter every corner of the globe as a globalized economic juggernaut. Its citizens, as business people and visitors, fly to every part of the globe. And China’s booming economy attracts foreigners for work and tourism, many of whom engage in the food and drug markets of the country before moving around the world.
The poorly controlled food market in China has caused one health crisis after another. Prior to the economic reforms of Deng Xiaoping, China suffered greatly during the 1957 and 1968 Asian pandemics. In the years after China’s adoption of its “reform and opening up” policies and its 2001 entrance into the World Trade Organization, the 2002 SARS crisis, the 2008 milk processing scandal, and the 2009 H1N1 crisis have beset China and countries around the world. The Chinese people might have preferred life-saving health and food safety legislation to infrastructural decorations, but the political stranglehold of the ruling party on society enables it to disregard or stifle the kinds of common reform demands that have brought drastic, life-saving reforms to the democratic world over the past century.
The incompetence of Chinese political leaders has helped make the coronavirus pandemic possible – it has taken the world economy to the verge of collapse, and it’s filling hospitals and cemeteries across the globe. It is generally known that the uncontrolled selling of wildlife in open wet markets – like the Wuhan wet market – was the original cause of the novel coronavirus being contracted by humans. The journal, Scientific American, states that “Multiple teams have proposed in preprint studies that pangolins may have been an intermediate host” of the virus most likely originating in bats in the area. And, to aggravate the crisis, China’s leadership ignored evidence of the virus, allowed New Year celebrations to continue and did not limit Wuhan’s travel until months after the outbreak started.
Even as the cases began to rise exponentially after the first case was registered on the 17th of November and a record 266 cases were registered on the 31st of December and 381 were registered on the first day of 2020, the medical authorities declined permission to announce the outbreak internally and to the public, despite the urgent warnings of doctors on the front line. Any evidence of substantial person-to-person virus transmission was ruled out by the WHO on the 14th of January while stopping short of declaring an emergency for public safety. Only after President Xi Jinping’s first recognition of the outbreak on the 20th of January that the virus can be transmitted amongst humans was Wuhan put under lockdown. The lockdown was initiated on January 22, but by then five million travelers had already left Wuhan through the air, posing a severe threat to the world.
In the midst of these changes, after two-thirds of the victims sampled were connected to the Huanan Seafood Wholesale Market, it was closed on the 1st of January, one day after China reported the outbreak to the WHO. In February, instead, the WHO asked countries not to enforce travel restrictions. Closing the Huanan Seafood market, however, is a tacit recognition on the CPC’s part that the transfer from person-to-person originated from there itself.
The 2003 SARS epidemic led China to ban the breeding, transportation, and selling of civets and other wild animals, but six months later, the ban was lifted. Even now, China has only placed a partial ban on its wet markets, with the UN Convention on Biological Diversity’s acting executive secretary calling for a blanket ban on wildlife markets worldwide, including that in Wuhan. In addition, Wuhan Public Security’s detention of eight doctors who posted information about the virus on social media exemplifies China’s opaque governance structure.
Given China’s experience with the SARS pandemic in 2003, the CPC could at least control the infection in China by acting on the International Health Regulations (IHR) guidelines by simply exchanging timely and reliable information on the pandemic with the WHO. But omissions on the part of the Chinese establishment allowed COVID-19 to spread around the world, unprecedently affecting global health and the economy, displaying a deliberate act of mendacity.
Therefore, to maintain an international order based on laws and upholding the right to life, safety and democracy, countries need to work together to pursue appropriate legal action against those responsible for wrongdoing. Any one of the possible solutions below might provide the right avenue.
1. Wrongful Acts under Article 2 of the Draft Articles on Responsibilities of States for Internationally Wrongful Acts (ARSIWA), 2001
Article 2 of the Draft articles on Responsibilities of States for Internationally Wrongful Act (ARSIWA) 2001, defines ‘wrongful acts’ as those that are ‘attributable to the state’ and that ‘constitute a breach of an international obligation.’ Post the virus release, the responsibility flowed from WIV to local Wuhan authorities to President Xi himself, all being organs of the state of China and hence their conduct is attributable to China.
In regards to violation of an international agreement, China failed to comply with its due diligence obligations intentionally by issuing gag orders not disclosing appropriate and timely details, forcing biotech companies to stop research. Due diligence is a principle of good governance which assesses whether a state has done what was reasonably expected of it when it responded to a harm or threat. This norm, which is integrated into numerous principles of traditional and customary international law, applies inter alia to climate, human rights and world public health. China has not adhered to such laws, which enforce obligations of conduct requiring states to avoid, stop and/or resolve a number of internal or trans-boundary harms, or the danger of them. Furthermore, China also infringed Article 14 of ARSIWA by refusing to exchange details promptly and transparently with the WHO in accordance with the IHR consequently extending its violation over the entire duration during which the act proceeded and remained in non-compliance with international obligations. Notably, a Southampton University epidemiological model found out that if China had behaved professionally faster by one, two, or three weeks, the cases would have decreased by 66%, 86%, and 95%, respectively.
2. China’s Guilt under Article 7(1) of the ICC
Furthermore, a global pandemic does not happen when a novel infectious pathogen emerges, but when, due to a failure to provide public services in regulated food and marketplaces which would prevent the transmission of pathogens and control their movements, it starts spreading, as has been the case in Wuhan. The recklessness shown by Chinese health authorities makes China a guilty of Article 7(1) of the ICC as per the eleventh act, namely, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” as mentioned under ‘crimes against humanity.’
Article 15 gives authority to the prosecutor’s office at the ICC to conduct proceedings proprio motu (on its own initiative) on the basis of information relating to crimes within the jurisdiction of the court. All of this having been said, the jury is out as to whether ICC has any authority over China. While the common public opinion seeks to drag China to the ICC, this must be done after careful review of the appropriate legal framework, as was the case in an Appeal No. ICC-02/17 OA4, where the prosecutor was allowed to open and conduct an investigation into the actions of U.S. military personnel in Afghanistan, despite the fact that the U.S. was not a member of the ICC.
3. Violations of the International Health Regulations (IHR)
In addition, the IHR were adopted by the World Health Assembly in 1969 to prevent the international spread of disease by placing an obligation on states to prevent highly transmissible disease. This was updated in 2007 in response to the 2003 SARS outbreak, to which China failed to oblige. China also violated several other articles of the IHR like Article 6, wherein a state has to notify all events which may constitute a “public health emergency of international concern” within its territory within 24 hours and to inform WHO all relevant public health information under Article 7.
Article 75 further provides that any disagreement concerning the application of the constitution of the WHO shall be referred to the International Court of Justice (ICJ). Reading the above as a holistic whole could cause the ICJ to invoke its contentious authority in the absence of at least any assessment of Chinese duty, omissions, and commissions. We emphasize that this potential finding by the ICJ against China is in no way enforceable against China, but it may nevertheless be the first step towards a substantive legal finding after proper application of the judiciary.
All of the above can be employed as a strong quasi-judicial and diplomatic pressure tactic on China in order to make her accountable.
For more on COVID-19, see our special coverage.
Abhishek Kumar is a second year B.A.LL.B. student at Dr. Ram Manohar Lohia National Law University, Lucknow, India.
Suggested citation: Abhishek Kumar, Covid-19: China’s Responsibility and Possible Legal Actions, JURIST – Student Commentary, May 10, 2020, https://www.jurist.org/commentary/2020/05/abhishek-kumar-china-covid19-responsibility/
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