COVID-19, China and the International Law

Arvind Jasrotia
The outbreak of COVID-19, novel Corona virus has created an unprecedented situation around the globe but at the same time it has humbled humankind to somberly reflect what havoc a tiny invisible virus can cause. As per latest estimates, COVID-19 has caused immense suffering infecting over 5 million persons and 3.5 Lakh deaths in 216 countries of the world, and as scientists predict, the peak of the virus is yet to arrive. It has become an existential crisis apart from being a health, social and economic crisis. Governments worldwide are bewildered as to how to combat this pandemic while simultaneously taking care of their shattering economies. The capacity of medical healthcare and health infrastructure has been severely compromised in majority of the countries.
China’s conduct vis-à-vis COVID-19 is suspect beyond doubt and experts believe that had China acted with due diligence and not suppressed, for several weeks, the vital public health information, so essential, to contain further spread of the disease, there would have been exponentially less cases as the countries would have enough time to take precautionary measures. Instead, sinister efforts were made by china to silence whistleblowers, like Dr. Li Wenling who was forced by police to sign a letter stating that he spread ‘untrue speech’ for warning colleagues about the virus that eventually took his life. On December 31, when China first announced the outbreak of a mysterious pneumonia, officials there emphasized few things, inter alia, that most of the patients had been to a food market in Wuhan, the city that was still the epicenter of the outbreak and that there was ‘no clear evidence’ of human-to-human transmission. This meant that the virus was not yet spreading from one person to another but instead, they suggested, an animal-to-human transmission and that the earliest cases had shown symptoms only recently, on December 12. However, independent evidence as well as Trump’s open letter to WHO suggested otherwise and pointed out that infection was visible in early December and even earlier. China also resisted offers from the US Center for Disease Control and Prevention and WHO to send experts to China until February 9, 2020. Estimated over 5 million people left Wuhan in the weeks before the city was quarantined on January 22, thereby facilitating the transportation of the virus all over the country and overseas.
A petition has been filed before the Supreme Court, seeking a direction to the Central Government to approach the ICJ, seeking compensation worth Rs 600 billion USD from the People’s Republic of China, for triggering the COVID-19 pandemic and ‘devastating’ the Indian economy. The petitioner has alleged violation of the Biological Weapon Convention, 1984, whereby it had agreed not to develop, produce and/ or stockpile Biological and Toxic Weapons. The Petitioner has proceeded on a premise that the Chinese Government ‘deliberately created biological weapon’ in the form of COVID-19 and leaked it in India in order to destroy the Indian economy. Similarly, US State of Missouri has filed a Lawsuit against all concerned Chinese authorities in a Federal Court alleging that the Chinese Government is responsible for the COVID-19 pandemic. The suit accuses Chinese authorities of suppressing important facts, denying crucial evidence, destroying research and willfully allowing millions to be exposed to the virus. It goes on to state that COVID-19 was an unnecessary and preventable pandemic, but the actions, or lack thereof, of Chinese authorities has caused the suffering which is being experienced by people globally, including Missourians. Again, a class action suit has been filed in the USA alleging that the People’s Republic of China released COVID-19 virus from an illegal bio-weapons facility in Wuhan. The lawsuit, filed in a District Court of Texas, USA, seeks punitive damages in excess of $20 Trillion U.S Dollars. On similar grounds, another complaint has been filed before UNHRC.
However, the theory that COVID- 19 was hatched in a bio-lab facility in the city of Wuhan has been refuted by scientists as they trace its origination through a zoonotic source by comparing the available genome sequence data for known coronavirus strains and the illness being traced to live market in Wuhan dealing with exotic and wild animal species. Also, the customary rule of ‘state immunity’ that establishes that one state cannot exercise jurisdiction over another state strikes at the root of the aforementioned complaints.
China’s conduct relating to COVID-19 outbreak also violated International Health Regulation as China knowingly and deliberately, failed to adhere to IHR, in particular, the obligations of ‘timely notification’ and ‘information-sharing’ outlined in Articles 6 and 7 which enjoins the States to communicate through National IHR Focal Point, most efficiently, all the public health-related information and events taking place within its territory to the WHO within 24 hours of the assessment. However, difficulty lies in identifying a jurisdictional basis for an international court or tribunal to hold China responsible for these violations. Article 56 of the IHR does provide mechanism for arbitration only in the event that China consents, which, needless to say, is very unlikely given the fact that China is powerful and influential player at the UN besides being permanent member of the UN Security Council, which enables China to invoke veto power to block events once its interest is at stake.
Scholars have arguably located another jurisdictional basis in Article 75 of the WHO Constitution that provides: “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 ICJ. In few cases, ICJ has acknowledged that Article 75 of the WHO Constitution provides for the Court’s jurisdiction but framing a complaint over China’s conduct as one concerning the interpretation or application of the WHO Constitution is an arduous task as it primarily concerned with establishing a constitutional framework rather than substantive obligations of international health law. Further, Article 37 of WHO obligates every member of the Organization to respect the exclusively international character of the WHO and her staff and not to seek to influence them. Evidence suggest that China, by suppressing factual information and providing misleading statistics of COVID-19 infected cases, sought to influence certain conduct of the WHO DG and staff, such as their strong expression of support for China and the allegedly delayed announcement of ‘Public Health Emergency of International Concern’ notwithstanding independent evidence, to the contrary, from credible sources including communication from Taiwanese authorities.
Finally, a claim can be made that China has defeated the object and purpose of the WHO Constitution which as per Article 1 is ‘the attainment by all peoples of the highest possible level of health’ based upon the obligation under general international law not to defeat the object and purpose of a treaty as per Article 18 of the Vienna Convention on the Law of Treaties.
China’s conduct vis-à-vis COVID-19 are also wrongful and in violation of international law. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, though not legally binding on the States, does have authoritative and persuasive value as most of the provisions have attained the status of customary international law. The ICJ too has taken recourse to the principles in interpreting international law and solving disputes between States. Article 1 says that every internationally wrongful act of a State entails international responsibility of that State. Under Article 2, the wrongful acts are those actions or omissions which constitute breach of international obligation and can be attributable to the State under international law. The conduct is ‘attributable’ when a State organ commits it through the legislature, executive, and judiciary or any other functions irrespective of position it holds in the organization of the State or character of as an organ in the central government or in a territorial unit of the State. In the spread of COVID-19, responsibility emanates from the local municipal authorities of Wuhan to the Chinese Central Governments which encompass all the State organs whose alleged wrongful conducts could be attributable to China.
Taking a State to the ICJ or any other international tribunal is a formidable challenge before an aggrieved State since international adjudication is consent-based. Given the fact that China is a significant power, militarily and diplomatically, as well as holds permanent membership of the UN Security Council, it is not surprising that even a resolution tabled at recent World Health Assembly called for only an ‘impartial, independent and comprehensive evaluation’ of the international response to the pandemic. It is thus not surprising that voices are being raised for an international commission of inquiry, whose findings and recommendations would be non-binding that provides an alternative to adversarial litigation focused response that may not be fit for the purpose.
The author is former Head and Dean Department of Law University of Jammu (J&K)