Law and Society

LIABILITY FOR THE SPREAD OF COVID-19: UNRAVELLING THE CONUNDRUM

I. INTRODUCTION

The novel coronavirus (“COVID-19”) has swept across the globe adversely affecting economies, trade, health, education, and most importantly, the lives of many. The United Nations Development Programme has referred to COVID-19 as the greatest challenge that mankind has faced since World War II. As of 28th October 2020, the virus has affected 4,35,40,739 people with approximately 1,160,650 casualties.

The origin of this virus can be traced back to Wuhan City, Hubei Province of China. Following the massive flaring-up of the disease, many reports have been surfacing, indicating that China failed to take accurate and timely steps, despite knowing the true scale of the virus. As per the official statements of the Chinese authorities, the first case of this virus was reported on 8th December, 2019. However, the authorities took more than 3 weeks to inform its World Health Organization (“WHO”) Country Office regarding the same.

Based on the available facts, it would be reasonable to state that there are numerous grounds to establish that China is responsible for the colossal outbreak of the virus into a pandemic, and can be held responsible under the principles of International Law.

II. GROUNDS TO HOLD CHINA LEGALLY RESPONSIBLE

As China has failed to show any sign of international cooperation and continues to deny requests of transparency till date, it may be held legally responsible under international law on the following grounds.

  1. Liability under the General Principles of International Law

If we are to consider the broader perspective, it can be established that China has failed to abide by the general principles of international law through its misconduct. 

As per the ‘no-harm principle’ under international law, a duty is cast upon every state to ensure that any activity within their jurisdiction does not cause any harm to another state. This principle has been reiterated in various notable precedents, and forms the basis of the 2001 Draft Articles on the Prevention of Transboundary Harm (“2001 Draft Articles”). It does not require states to prevent harm, but requires them to attempt to mitigate the chances of any transboundary harm, to the best of their abilities. Moreover, the principle of due diligence requires states to observe standards of reasonable care and adopt the most practical means to prevent any damage. The aforesaid principles have been widely used and, in a way, form the cornerstone of international environmental law cases. Although their application to cases involving the spread of a pandemic remains a grey area, their general significance and relevance in international law has been emphasized time and again. Any activity which is not prohibited by law but may cause ‘significant’ transboundary harm through its physical consequences is also covered under the no-harm principle. As per the 2001 Draft Articles, ‘significant’ harm includes harm to human health.

The author believes that the current situation satisfies all the conditions for applying the aforesaid general principles of international law. China has blatantly failed to delve into any due diligence to prevent transboundary harm to other states. To substantiate the same, it is pertinent to bring to light, a study conducted by the University of Southampton which shows that if non-pharmaceutical interventions would have been conducted one week, two weeks, or three weeks earlier in China, cases could have been reduced by 66%, 86%, and 95%, respectively, coupled with significant limitation in the geographical spread of the virus.

Further, China may claim lack of information and foresight to justify its inaction. However, the same would still not yield any result in light of the principle of constructive knowledge. This principle, which was outlined in the Corfu Channel case, holds that a state ‘should have known’ about a particular fact, situation or circumstance by virtue of its control over the territory.

However, the consent based jurisdiction in international law could stand as an obstacle under this perspective. While applying the general principles of international law, in the absence of any prior consent through a treaty, China’s consent would be required to subject the claims of violation to the jurisdiction of the International Court of Justice (“ICJ”). Moreover, although the UN Security Council is empowered to refer cases to the ICJ, China is a permanent member of the Council. This would limit any such measure in light of their authority.

  1. Liability under the WHO Constitution

It is crucial to note that about five outbreaks have originated from China in the past 20 years. One such unfortunate incident known as the 2003 SARS outbreak, caused the WHO to bring in the new International Health Regulations (“IHR”), in 2005, enacted under the WHO Constitution.

Article 6 of the IHR 2005 requires states to provide accurate and sufficiently detailed information to the WHO within 24 hours in case of any potential public health emergency of international concern. This includes any unexpected or unusual public health event. Annexure 2 of the IHR carves out a decision instrument to assess if the event constitutes a public health emergency of international concern that needs to be notified. Pneumonic plague is one such event which falls within the assessment criteria.

China was aware of the unusual and steady growth in pneumonic cases of unidentified etiology in Wuhan city. However, it took China 23 days to notify its WHO Country Office regarding the virus.

Moreover, a recent study conducted by Harvard researchers, by analyzing satellite images and Chinese search engines, suggested that the spread of the disease may have begun in August 2019 itself. It is alleged that the number of COVID-19 cases in China have also been distorted and cannot be trusted. Reports suggest that, by the time China reported the public health emergency to WHO, it already had more than 200 cases. A few doctors in China made efforts to raise alarms concerning the gravity of the virus, but their voices were suppressed by the authorities.

Any concrete evidence to prove China’s guilt lies within its own disposal, which it is unwilling to share. However, the known factual matrix of the situation could be considered to establish sufficient circumstantial evidence against the Chinese authorities. There seems to be a clear nexus between China’s covert as well as overt actions and the immense breakout of the disease. Circumstantial evidence, though not conclusive, is still considered crucial and several court decisions have affirmed its evidentiary value in international law.

The Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) state that every internationally wrongful act entails the international responsibility of the respective state. The ARSIWA have been approved ad referendum by the UN General Assembly, and have been very widely approved and applied in practice by the International Court of Justice as well. Under the aforesaid Articles, the impugned act or omission must be attributable to the state and must be considered as a breach of its international obligation. In view of the abovementioned violations, China has breached the international obligations conferred upon it by the IHR 2005.

Therefore, it could be said that China as a state is legally responsible to the international community for the massive outbreak of COVID-19. Article 31 of the ARSIWA provides that the responsible state is under an obligation to make full reparation for the injury that has been caused due to its wrongful act.

III. THE QUESTION OF JURISDICTION

The final piece of this conundrum is the path to remedy. Even if China is legally responsible, can it be brought before the ICJ and be held liable?

The IHR 2005 provides for a dispute settlement mechanism under Article 56, which prescribes peaceful modes of dispute settlement. The provision also allows the State Parties to exercise their rights under any international agreement and resort to any other dispute settlement mechanism.

The WHO Constitution is the instrument that opens the door to ICJ’s jurisdiction. Article 75 of the Constitution gives jurisdiction to the ICJ over matters concerning the application of the instrument.

In the case of Armed Activities on the Territory of the Congo, the ICJ noted that ‘Article 75 of the WHO Constitution provides for the Court’s jurisdiction, under the conditions laid down therein, over ‘any question or dispute concerning the interpretation or application of that instrument’. Further, it was noted that, to achieve the seisin of the Court, the precondition of an attempted and failed negotiation should be satisfied.

Analyzing the current situation, the ambiguity that remains is whether a violation of the IHR 2005 would be considered as a ‘question or dispute concerning the interpretation or application of the WHO Constitution’.

IV. ANALYSIS: POTENTIAL CLAIMS FOR JURISDICTIONAL BASIS

The author believes that the ‘violation of the IHR 2005’ is a ‘question concerning the interpretation and application of the WHO Constitution’, rendering the jurisdictional basis to stand before the ICJ.

One of the functions of the WHO Constitution enlisted under Article 2 is to propose regulations and perform such duties as may be assigned thereby to the Organization and are consistent with its objective. Article 21 of the Constitution authorizes the Health Assembly to adopt regulations concerning public health practices and procedures designed to prevent international spread of diseases. Article 22 further states that the said regulations shall come into force for all the Member States after due notice.

The concerned regulations in the present case, i.e. the IHR 2005 and its subsequent amendments were adopted pursuant to Article 2(k), Article 21, and Article 22 of the WHO Constitution. Moreover, Article 3 of the IHR 2005 states that the implementation of the Regulations shall be guided by the Charter of the United Nations and the Constitution of the World Health Organization.

The author believes that, since the IHR 2005 was enacted under the WHO Constitution and its implementation is to be guided by the same, a violation of the IHR 2005 would naturally give rise to ‘a question of interpretation or application of the WHO Constitution’. This would warrant the application of Article 75 of the Constitution to the present case.

Once the application of the aforesaid provision is established, states can resort to negotiation. In the event of a failed negotiation, the states will be eligible to approach the ICJ. The author believes that if China cannot be brought to the negotiating table, its refusal to cooperate should be considered in the same wavelength as the failed negotiation criteria, to invoke the jurisdiction of the ICJ.

V. CONCLUDING REMARKS

As stated above, there appears to be numerous grounds to hold China accountable for the spread of COVID-19, its delay in action, and its consequent lack of transparency. Peaceful modes of dispute settlement including negotiation, mediation, conciliation can be resorted to, in order to probe a fruitful result. However, in order to bring the matter to the ICJ and enforce any reparation on the responsible state, a substantial interpretation of the WHO Constitution would be required. However, in arguendo, if a decision is pronounced against China following an ICJ proceeding, in the absence of any police force to enforce international law, it would be a strenuous task to make China abide by the rule of law. The author believes that while international law has proved its scope and strength over time, it has its disadvantages. Meanwhile, international condemnation by way of economic and social pressure on the Chinese government seems to be another alternative that countries can resort to. These measures would include employing economic pressure, trade sanctions and downgrading ties. Adopting such means may not only urge China to come to the negotiating table and help the states to resolve the dispute amicably, but also help the states in boosting their deteriorating economies through indigenous production. Many states have already begun to take steps in this direction, aiming to achieve self-reliance as the ultimate goal.

This article has been authored by Shreya Sukhtankar, a final year student at ILS Law College, Pune.

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