China’s liability under international law

by May 5, 2020 0 comments

Article 75 of WHO’s Constitution gives it the right to refer matters to the ICJ for advisory purposes. China’s failure to disclose information and disseminate data about the virus during its preliminary stages, coupled with its wilful negligence in regulating wildlife trade, invariably triggers a breach of the treaty

The COVID-19 pandemic has engulfed over 100 countries around the world and for the lack of a cure, governments have been compelled to largely depend on social vaccination measures, including lockdown, isolation and social distancing. This flu-like virus, with origins in China’s Wuhan city, has caused tremendous distress in terms of health, economic and social well-being of the international community.

Accountability: World economies are in shambles but when the dust settles, fingers will be pointed and responsibility strictly apportioned. Already China is being pushed against the wall by the global community and difficult questions are being asked of it regarding the origins of the virus and the delay in warning the world about it turning into a pandemic.

Predictably, the issue of China’s legal liability for the COVID-19 outbreak will be raised. The US has filed a $20 trillion lawsuit — an amount larger than China’s Gross Domestic Product (GDP) — against Chinese authorities to seek reparation for economic harm. Similar lawsuits have been filed in Germany and India against China claiming compensation for damages. However, domestic laws  are unsuited for this task because the principle of sovereign immunity prevents local courts from ruling on the acts of foreign governments. For the lack of enforceability, we must redirect our attention to supranational legal frameworks for remedies and solutions to this precarious inquiry.

International Health Regulations, 2005: After the spread of the Severe Acute Respiratory Syndrome (SARS) in 2003, the World Health Organisation (WHO) adopted an International Health Regulation (IHR) by making member countries accountable to counter such global pandemics. Article 6 mandates each member country to “notify the WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information.” Further, Article 7 goes on to state that if a country “has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to the WHO all relevant public health information.”

These regulations are further fortified by Articles 11 and 12 of the IHR which require the WHO to share such data, once verified, with other countries so that they can enact precautionary measures.

It is alleged that China not only failed on both counts but also censored, misled and suppressed information, from the media and the WHO, about the Coronavirus and its effects. Moreover, China portrayed COVID-19 as a new form of pneumonia that could not be transferred from one human to another, which was later  admitted by Chinese authorities as otherwise. Collectively, these actions made it difficult for countries around the world to adequately prepare for this deadly virus, leading to colossal damages to the health and finances of nations. The destruction of virus strains in Wuhan University also raised suspicions regarding the COVID-19 being a man-made virus to be used as a biological weapon, currently put under experimentation in Wuhan Labs. Keeping these accusations aside, it is important to note that it is not the first time China is the place of origin of an epidemic or deadly disease. From the Asian flu and Hong Kong flu to the Swine flu, all had China as their epicentre. In the case of SARS, China’s exotic wet market was on the radar but Beijing failed to impose restrictions on its billion dollar industry, overlooking the threat of a repeated catastrophe. China flouted the rules, time and again and for this, it must be held to account.

Jurisdictional issue: The final and probably the most vital piece in this puzzle is how might China be brought before an international court for its unlawful actions?

The major lacuna is the jurisdiction of the International Court of Justice (ICJ). Cases are referred to the ICJ once consensus between disputing parties has been established and taking into account past records, China has been resistant to authority and may continue on the path of resistance. An unconventional way of circumventing the jurisdictional issue would be to invoke the provision that empowers an organisation to refer disputes to the ICJ. Article 75 of WHO’s Constitution gives the organisation the right to refer matters to the ICJ for advisory purposes.

China’s failure to disclose information and disseminate data about the Coronavirus during its preliminary stages, coupled with its wilful negligence in regulating wildlife trade, invariably triggers a breach of the treaty. Though experimental and untested, this route offers a glimmer of hope for invoking the jurisdiction of the ICJ to assess Chinese liability and hold that nation accountable for losses caused to the international community at large.

While the ICJ’s opinion is not directly enforceable, they do provide an authoritative assessment of legal liability around which governments can synchronise their political response by way of seizure of Chinese assets or imposing trade sanctions. China, being Asia’s largest economy, holds an influential place in world politics today. This, however, shall not be construed as a means to assume absolute power and continue flouting rules of the IHR issued by the WHO.

Measures available to the affected countries are by no means simple. Each requires considerable international collaboration, cooperation and resolve to implement, particularly considering China’s towering economic influence. It is evident that China is the originator of the pandemic but it will be an onerous task to classify its action and response as advertent, willful or a case of gross negligence in its greed to push a lucrative, yet hazardous billion dollar industry.

(Writer: Sonam Chandwani; Courtesy: The Pioneer)

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