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TRACKING THE PANDEMIC: AFFIXING LIABILITY OF CHINA FOR COVID 19 OUTBREAK UNDER INTERNATIONAL LAWS

Updated: Jul 29

[Authored by Utkarsh Singh, a 2nd year B.A. LL.B. (Hons.) student at National University of Study and Research in Law, Ranchi.]

Introduction


The world is now witnessing an unparalleled health crisis in the form of Covid-19 outbreak which is said to have been originated from wet markets of Wuhan in China-infamous for its exotic meats products which are widely consumed by the people of Wuhan in the name of prevailing credulity[1]. Worldwide a total of 9,920,088 people have been infected from COVID-19 and numbers are on rise exponentially. Although COVID-19 is 87% similar to Severe Acute Respiratory Syndrome (SARS) which was identified in Foshan, Guangdong, China, on November 16, 2002, but still, no progress is seen toward the development of COVID-19 vaccine till now.

Recently, A complaint was filed against People’s Republic of China (PRC), the People’s Liberation Army, Wuhan Institute of Virology (WIV) and its director Shi Zhengli on 1st April 2020, by Freedom Watch[2], U.S.A in International criminal court (ICC) for an open inquiry under Article 15 of Rome Statute. The charges against them is that they have been engaged in designing and subsequent release of the novel coronavirus. The plaintiffs also refer to reports where the Chinese Government-linked efforts to prevent such future threats to strengthening the security of biological laboratories[3]

However, the allegation is without any concrete evidence and is more like conjecture, but this case does raise some bigger questions of whether there exists any mechanism under the international law to make the Chinese Government accountable for their aegis and their failure to cover up the COVID-19 which has led to pandemic across the globe? The answer to all these questions is affirmative as there are passable number of evidence that evince that Chinese State’s actors have failed to cover-up and prevention on the spread of COVID-19.


CHINA’S RESPONSE TO THE OUTBREAK OF COVID-19


A report was published by South China Morning Post in which they claimed by citing an unpublished government records, that the first instance of COVID-19 was reported as early as in 17th November 2019. However, despite prior warnings raised by the doctors, journalists, various agencies of the Chinese government in Wuhan did not acknowledge the outbreak on time. The President Xi-Jinping and the Chinese Agencies have pushed the entire world into the apocalypse. It was until 12th January when Chinese official shared genome sequence to WHO. Any evidence of significant person-to-person transfer was ruled out as possible by WHO on 14th January and it also failed to declare a public health emergency until Chinese agencies confirmed that virus can be transmitted between humans and Wuhan was put under lockdown on 22nd January but until then more than five million travellers had left Wuhan carrying a severe threat to the world.

The COVID-19 pandemic is causing massive scale Human destruction across the world. Although China is labelling its spread as a force majeure event. But it is pertinent to note that it is not the first time when China has been the epicentre of Pandemic in previously in another four events namely in Spanish Flu (1918), Asian Flu (1957), Hong Kong Flu (1968) and Swine Flu (2009). All of these triggered due to china’s penchant for the consumption of exotic slaughtered meats. The Chinese government promised to shut-down its wet markets during the 2003 SARS outbreak but it failed to keep up its promise. The 2003 SARS outbreak elicited China shut-down the breeding, transportation and the sale of exotic meats in those wet markets but the ban was lifted six months later. Even now China has imposed just a temporary ban on its wet markets, despite the guidelines given by the UN conventions on Biological diversity[4] which called for the ban on the wildlife markets across the world.

Given experience in dealing with SARS pandemic in 2003, it was very much possible for the Chinese authorities to at least contain the infection in China by acting upon the guidelines of International Health Regulations (IHR) by simply sharing accurate time and information about the virus. But besides that, the Chinese government detained eight doctors of Wuhan Public Security for posting information about virus on social media. The omission on the part of the Chinese government to allow the spread of COVID-19 across the world impacting global health and economy unprecedentedly displays a deliberate act of mendacity and hypocrisy.

It is appearing that China conduct was wrongful and in violation of International Laws. Therefore in world of the rule-based international system and for the protection of the right to life, health and freedom, it is necessary to inspect for a suitable legal action against those who are responsible for the wrongful acts.


Obligation of China under Public International Law


The international health regulations, since China is among 194 countries who have ratified the International Health Regulations (2005) and there are certain obligations imposed on it under article 6 of IHR which says that State is obliged to inform WHO regarding the events occurring in their territory which are capable of causing public health emergency of international concern (PHEIC) within 24hrs. Article 7 of the IHR says that the state should provide all evidence and relevant information regarding such events. SARS-CoV-2 being a virus of such nature required China to follow Art. 6 & Art. 7 of IHR and intimate to WHO, when it reported its first case in early December. But, China reported the outbreak of an ‘unknown-virus’ to WHO only on December,31. Reports also suggests that a doctor in Wuhan had identified the virus to be similar to SARS family of virus and warned his kin about the same. But, the warning caught the eye of Chinese authorities and they censored it. It was only on January 9 that China officially released the genetic map of the virus which had already been found out on January 2.

The Action of China are in direct contravention to the WHO constitution which requires member states to adhere to the guidelines formulated under IHR Art. 21, 63 and Art 64. The non-adherence of the guidelines directly invokes the Art 18 of the Vienna Conventions on Laws of Treaties, since it defeats the purpose of WHO constitution.


China’s Responsibility of its Internationally “Wrongful Act”


Article 2 of the Draft article on Responsibilities of State for Internationally wrongful Act (ARSIWA),2001 defines “wrongful act” those attributable to the state and constitute a breach of an international obligation. The responsibility flows from WIV to Local Wuhan authorities to President Xi Jinping all being an organ of State of China, hence their conduct attributable to China.


As regards to the breach of international regulation, China failed to cling with its due diligence obligation by failing to share relevant information on time. Due diligence is a standard of good governance to assess whether a state has done what was reasonably expected of it when responding to the harm or danger. Several rules of conventional and customary international law applies inter-alia to environment, human rights. These rules an obligation on the state for the conduction of measures which prevent, stop or redress a gamut of internal or the transboundary harms or the risk thereof, was not cling with by China. Further, it failed to share information transparently with WHO, under the guidelines of IHR and subsequently extending its breach over the entire period. China also violated Article 14 of the ARSIWA. In a report published by Southampton University and according to their epidemiological model[5] they claimed that cases would have been reduced by 66%, 86% and 95% in the span of two to three weeks respectively. A global pandemic does not occurs when infectious pathogens emerge but it happens due to failure to provide public services and prevention of the transmission of pathogens.


Rome Statute


The Rome Statute governs the International Criminal Court, and has within its jurisdiction four acts, which invite criminal liability. The carelessness shown by the Chinese Health authorities makes China guilty under Article 7(1) of the International Criminal Court as per the eleventh act “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health’ as mentioned under ‘crimes against humanity. Article 15 grants powers to the office of prosecutors at the ICC to initiate proceedings Proprio motu based on the information on the crimes within the jurisdiction of the court.

stumbling blocks

Article 75 of the WHO constitution specifies that “any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice”. The International Court of Justice will be having the jurisdiction to take up the matter as China will not agree to come to the negotiation table and will probably obstruct any proceedings or judgements against it as it was done in South China Sea Case[6]. Even then ICJ advisory jurisdiction can be called upon the Article 76 of the WHO constitution which provides “Upon authorization by the General Assembly of the United Nations or upon authorization by any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization” though it may not be directly enforceable but it will provide a legal assessment of liability and China Found guilty than all national government will be empowered to take countermeasures[7].

However the ICC does not have jurisdiction over States who are not signatories to the Rome Statute and sadly, China is not a party to it. Therefore, China cannot be taken to the ICC for crimes under the Rome Statute, unless China voluntarily submits to it


Conclusion


The COVID-19 has caused irremediable damage to humanity in every aspect of life and the global economy is also expected to experience a worse recession than that of 2008. In 2003 China was held responsible for the outbreak of SARS but instead of paying attention to warnings, China promoted the exotic meat industries. In the present situation, there is substantial evidences to corroborate the facts that China knowingly concealed the nature and spread of novel COVID-19. Treaties like IHR were solely formed to mitigate any possible public health emergency of international concern, similar to COVID-19. But China deliberately violated all stipulated protocols and thus failed the very object of such a treaty. As the international community looks forward to justice and brings the wrongdoer to the court, various roadblocks stand in its way. But, if international organisations fail to take any action against such a violation of international health norms, the same would create a bad precedent and destroy the faith of hundreds of countries that look to these organisations for justice and equality. Therefore, it now lies at the hands of the international community on how it wants history to remember the inactions of China leading to COVID-19, death of millions and a world economic recession.


[1] Farah Master, Sophie Yu, Animal lives for man: China’s appetite for wildlife likely to survive virus, Reuters, (February 17, 2020), https://in.reuters.com/article/china-health-wildlife/animals-live-for-man-chinas-appetite-for-wildlife-likely-to-survive-virus-idINKBN20B0A6 [2] Freedom of Watch, Inc. Washington, D.C v. The People’s Republic of China, XI Jinping and Members of Chinese Politboro & Ors., https://www.freedomwatchusa.org/pdf/200330-Complaint%20Before%20the%20International%20Criminal%20Court%20.pdf [3] Meera Emmanuel, Covid-19 was designed by China as a Biowarfare weapon”,$20 Trillion Dollar Lawsuit filed against China in US District Court, (March 24, 2020)., https://www.barandbench.com/news/litigation/covid-19-was-designed-by-china-as-a-biowarfare-weapon-20-trillion-dollar-lawsuit-filed-against-china-in-us-district [4] Patricks Greenfield, Ban Wildlife markets to avert pandemics, The Guardian, April 6, 2020., https://www.theguardian.com/world/2020/apr/06/ban-live-animal-markets-pandemics-un-biodiversity-chief-age-of-extinction [5] Shengjie Lal, Nick W Ruktanonchal, et al , Effect of non-pharmaceutical interventions for containing the Covid-19 outbreak in China, University of Southampton, U.K., https://www.medrxiv.org/content/10.1101/2020.03.03.20029843v3.full.pdf [6] Atul Alexander, Gauging the Advisory jurisdiction of the International Court of Justice in the Face of Covid-19, Jurist, (April 6, 2020)., https://www.jurist.org/commentary/2020/04/atul-alexander-icj-covid/ [7] John Yoo, Robert J. Delahunty, How to make China pay for Covid-19, Hoover Institution, (April 28, 2020)., https://www.aei.org/op-eds/how-to-make-china-pay-for-covid-19/

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