CAN CHINA BE BROUGHT BEFORE THE ICJ OVER COVID -19?
Updated: Jul 29, 2020
[Authored by Priyam Sinha, a 3rd year BA LL.B. (Hons.) student at School of Law, CHRIST (Deemed to be University), Bangalore.]
“After all, it really is all of humanity that is under threat during the pandemic.”
- Margaret Chan
The costs of COVID-19 keep on piling up. People of all ages are getting infected and much worse, are dying. Economies are shattering. There are no whereabouts of trade. Markets are at a huge loss. The companies and supply chains are disrupting. The pandemic is leading towards the steps of a global economic depression. China deserves a lion share of the blame for the spread of COVID-19 as delayed in notifying about the required information to other countries which could have acted as a mode of prevention, instead threatening the whistle-blowers who had the courage to inform other nations and avoid this deadly disease. It can be argued that China should be brought before the International Court of Justice and should be made liable to pay compensation to the worldwide nations for its negligence.
The deliberate cover-up of the evidence of this epidemic has been proved to be a matter of public record. By defeating the data of the virus, not taking optimal measures to prevent the same in the prior critical days, resulting in the escalation of the same not only in China but also in more than a hundred nations in the world including Italy, Iran, US which are seemed to be majorly hit. The Communist Party-led nation even hindered the information regarding the virus that had to be communicated to the world and also prevented the inspection by the World Health Organisation in Wuhan. China is seen to have a history of mismanaging outbreaks; taking SARS for example in 2002 and 2003 which had a huge impact on most of the Asian countries; but this pandemic, has been proved to be far more exacerbating that China could spread.
CHINA HAS VIOLATED PROVISIONS OF THE INTERNATIONAL HEALTH REGULATIONS AND WHO CONSTITUTION
Apropos the legality for the spread of novel coronavirus, China has violated the International Health Regulations of 2005, as laid down by the World Health Organisation particularly in Articles 6 and 7, which lay down the obligations for duly notifying and providing information to the World Health Organisation regarding any events or contagious cases which relate to public contagious emergency, to which China clearly failed to act accordingly. This treaty has an imperative role as it aims to combat the spread of infectious diseases thereby helping the international community. If we study the ratio laid down in the United Kingdom v. Albania, also called the Corfu Channel case, the International Court of Justice held that no state shall allow the use of its territory for any acts which contravenes the rights of other states. In this sense, China clearly is obligated towards other nations for the outbreak.
Considering the WHO Constitution, a series of violations can also be seen with respect to China’s conduct. Article 21  defines that the World Health Assembly shall have the authority to adopt regulations with respect to quarantine requirements to prevent the spread of any infectious diseases among nations, and Article 22  which defines the requirement of providing a due notice for such adoptions by the Assembly. China is seen to have violated even Article 63  of the same which obligates a nation to communicate properly to the organisation the important laws and statistics with respect to health published in the concerned state. One can also claim the violation of Article 64 B of the WHO constitution which obligates the nations to provide for statistical and epidemiological data reports to be determined by the Assembly.
THE QUESTION LIES AS TO CAN CHINA BE TRIED BEFORE THE INTERNATIONAL COURT OF JUSTICE?
As a general rule, countries like China follow the judicial doctrine of sovereign immunity which means that a sovereign state cannot be sued in the courts of another sovereign state without the state’s consent. But if we look upon the conduct of China with respect to Article 1 of the Responsibility of States for Internationally Wrongful Acts of 2001,as laid down by the International Law Commission; any wrongful act by a state having an international impact is to entail the responsibility for the same. Article 2 states that any such event or act will be considered wrongful internationally only when such act or event is attributable to the State and creates its obligation under the international law. Here, China is seen to have violated the same as it was clearly the obligation of the nation to inform about the outbreak the moment it was known that the virus could be spread from humans to humans.
However, even if there was a way to take all the said issues to the ICJ under its compulsory jurisdiction power under Article 36(2) of the Statute of the Court, there would be two obstacles. One procedural, and the other, practical. Firstly, since China has never accepted the compulsory jurisdiction of the ICJ, and it is not likely to consent to adjudication of such disputes. Secondly, most of the issues above could be rendered unripe at the stage of admissibility by the Court since scholars might argue that they do not yet conclusively establish a ‘causal link’ between China’s action and the spread of COVID-19.
Taking into account the repercussions of the pandemic on the Indian economy, the nation, just like other countries is completely under lockdown due to which not even a quarter of India’s $2.8 trillion economy is operating, and because of this there is an assumption of losing over $4.5 billion on a daily basis during the lockdown. The impact of this virus has affected all the economies. With the rate of unemployment getting increased, the purchasing power of the individuals is being eroded. It is not every other day when violation of international law is seen to be happening. Despite the doctrine of sovereign immunity, China still needs to be held liable for the costs which other great nations have to bear just because of its negligent conduct of not being able to duly inform or give cautions or warning about the transmission of the virus among humans, which could have prevented this massacre to at least a certain limit.
 Krithika Raghunathan, Corona: The case for taking China to ICJ, (April 4, 2020), https://www.orfonline.org/expert-speak/corona-the-case-for-taking-china-to-icj-64096/  Alexis C Madrigal, How to Misinform Yourself About the Coronavirus, (January 28, 2020), https://www.theatlantic.com/technology/archive/2020/01/china-coronavirus-twitter/605644/  International Health Regulations (2005).  Id, art. 6 & 7.  United Kingdom v. Albania, 15 XII 49 (1949).  World Health Organization Const., art. 21.  Id, art. 22.  Id, art. 63.  Id, art. 64.  The Schooner Exchange v. McFaddon, 11 U.S. 116, 137 (1812).  Responsibility of States for internationally Wrongful Acts (2001), art. 1.  Id, art. 2.  Statute of International Court of Justice, art. 36.  Mohit Khubchandani, Did Not Even ‘Bat’ an Eye on China? A Case at the International Court of Justice to Prevent China from Re-opening Wet-bat Markets in Wake of the COVID-19 Furore, International Law Blog, (April 6, 2020), https://internationallaw.blog/2020/04/06/did-not-even-bat-an-eye-on-china-a-case-at-the-international-court-of-justice-to-prevent-china-from-re-opening-wet-bat-markets-in-wake-of-the-covid-19-furore/  World Bank says coronavirus severely disrupted Indian economy, pegs FY21 growth at 1.5% at worst, (April 23, 2020), https://www.businesstoday.in/latest/trends/coronavirus-pandemic-severely-disrupts-indian-economy-world-bank/story/400785.html