China’s Grand Cover up & it’s International Liability

The novel coronavirus or the Severe Acute Respiratory Syndrome Coronavirus-2 (SARS-CoV-2)[1] which has caused the outbreak of COVID-19 has risen to the status of a pandemic. While 750,864 cases have been recorded as successful recovery, 210 Countries and Territories around the world have reported a total of 2,732,701 confirmed cases of the coronavirus COVID-19 that originated from Wuhan, China, and a death toll of 191,150 deaths (as on 25th April, 2020).[2] Despite the whopping similarities of 87% to Severe Acute Respiratory Syndrome (SARS) identified in 2013[3], most experts think a vaccine for SARS-CoV-2 is likely to become available by mid-2021, about 12-18 months after the first emergence of the new virus.


No country is a stranger to the social and economic damage caused due to the COVID-19 pandemic. China is proclaiming that its spread is a force majeure event[4], however, certain actions of China makes it liable under the International law. China has been accused of “surreptitiously developing a biological weapon that is capable of mass destruction of mankind”, by International Council of Justice.[5] This body of jurists based mostly in London seeks compensation from China for inflicting serious physical, economic, social and psychological damage to the international community by unleashing the COVID-19.


This article highlights the violations of several international obligations that were ratified for disease control, and the chain of events that lead to unleashing of COVID-19 into the world.

This isn’t the first time China has been under the spotlight for releasing a global contagion. China’s proclivity for the consumption of slaughtered animals and exotic meats has made it the epicentre of four events, namely, , the Spanish flu (1918-19), the Asian flu (1957-58), the Hong Kong flu (1968-69) and the Swine flu (2009-10).[6] Absence of appropriate care and precautions in the meat markets by China leaves no place for surprise by the possibility of zoonotic virus that can create a pandemic.


As the saying goes “History repeats itself”, it is claimed that China knowingly as well as deliberately, failed to adhere to international health regulation in preventing novel Coronavirus (COVID-19). All this social, economic and human loss could have been avoided, had China been transparent about its vital public health and happenings. Despite the repeated advice of doctors in Wuhan, China, who treated the first COVID-19 patient[7], there was no ban imposed on public gatherings and travelling by the Chinese authorities. Before any strict restrictions were imposed, various meets and festivals like Communist Party Meeting that was held in Wuhan (11-17 January) and the celebration of Lunar New Year Spring Festival (18 January), which accounts for about 3 billion human migrations this year (World’s biggest human migration)[8], had already taken place.


Since, China is among those 194 nations who have ratified the International Health Regulations, 2005 (IHR)[9] which was received to control the spread of illnesses, there are a few impositions. By uprightness of Article 6 of the IHR[10], every member state is obliged to inform the WHO in regards to the occasions happening in their domain, which are equipped for causing a public health emergency of international concern (PHEIC) within 24 hours of public health assessment. Likewise, Article 7 of the IHR states that if a state has any proof relating to any uncommon or surprising occasion inside their domain which has the propensity of causing PHEIC, at that point it will promptly give all the significant data with respect to it to the WHO.


Though the WHO is not entitled to decide how states and parties interpret the IHR, the IHR itself gives the WHO such prominence and authority that its actions in this context can by no means be ignored.


Though in the current case, the Chinese specialists have deliberately misdirected the WHO on a few records as on 31st December, much after the rehashed alerts of the Chinese specialists that the infection might be novel coronavirus, they had informed the WHO just about an obscure type of pneumonia. However, Article 56 of the IHR provides for arbitration only in the event that China consents, which, needless to say, is very unlikely. Further on 14 January[11], the Chinese duped WHO that the disease can't be transmitted among people, and finally on twentieth January, they at long last recognized that the infection can be transmitted[12] between people, however by at that point, the infection has just spread across different countries.


Apart from these, China has profaned Article 10 and 11 of IHR that provide that the states have to be compelled to share all the info about the PHEIC with the WHO and must get verification from it so that it will inform alternative countries to require precautionary measures relating to the PHEIC. However, within this case, when discovering that the novel coronavirus was the same as a severe acute respiratory syndrome, rather than sharing information with the UN agency and seeking verification, the Wuhan Health Commission had ordered their analysis centres to prevent the testing of samples[13] and to destroy the present samples of the virus. This act of stopping the testing of samples and deliberate rejection of taking applicable health measures conjointly attracts liability below Article forty-two of IHR that provides that states ought to take appropriate health measures consistent with IHR just in case of a PHEIC with no delay in an exceedingly non-discriminatory and clear manner.


Moreover, China’s failure to accommodate the IHR makes it liable below Article 1 of Responsibility of States for Internationally Wrongful Acts,[14] 2001, that provides for the responsibility of states for his or her internationally wrongful acts, the expression “wrongful acts” being outlined as - “wrongful acts” are those acts which are “attributable to the state” and “constitute a breach of a global obligation”.


China has not provided correct reports of the events happening within their territory to the UN agency and that they have unceasingly shown lesser numbers of death and infections caused by the novel coronavirus that has conjointly resulted in the violation of Article sixty-three and sixty-four of the WHO Constitution. Article sixty-three states that “Each Member shall communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health which have been published in the State concerned” and Article64 states that “Each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly”.


A recent study by the University of Southampton[15] reveals that if Non-Pharmaceutical Interventions cherish isolation of patients, quarantine and social distancing was conducted 1, 2 or 3 weeks earlier, then the COVID-19 cases would be slaked by up to sixty-six %, eighty-six % and ninety-five % respectively, and this may have helped in limiting the worldwide spread considerably.


According to a study by Oxford[16], the virus was spreading at appalling levels in China since Dec 2019. Attributable to these facts and circumstances, it can be logically be deduced that even after knowing truth nature and extent of COVID-19, China elected to hide actuality extent of it from the globe by suppressing ‘whistle-blowers’ and censoring the state-controlled media and press.


By virtue of Article seventy-five of the World Health Organization Constitution, that states that “Any question or dispute concerning the interpretation or application of this Constitution which isn't settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice ….”, the ICJ has the jurisdiction to take up the matter because it is uncalled-for to mention that China won't comply with turn on a negotiation table and can, in all probability block any continuing or judgement against it, similar to the South China sea case.[17]


Even if China doesn’t comply with being part of the negotiation table, the ICJ’s advisory jurisdiction are often relied upon.[18] The informative opinion of ICJ isn't directly enforceable however it'll give authoritative legal assessment of liability and if China is found liable, then all the national governments are authorised to require countermeasures to compel China to account. This strategy has been already utilized in the past against Argentina and Russia to compel their compliance with international awards.


Conclusion

The COVID-19 has caused irreparable injury to humanity in each facet of life and also the world economy is additionally expected to experience a recession worse than that of 2008. In 2003, China was held liable for the irruption of SARS because the virus originated from China’s wet market and wildlife trade business. Subsequently, consultants have time and again foreseen the probabilities of comparable outbreaks attributable to the lack of China to place restrictions on these industries, however rather than paying heed to such warnings, China’s life Protection law[19] selected wildlife as an economic resource and promoted the exotic meat business. Though the irruption of SARS has brought some changes to the current policy, they were poorly manifested in terms of implementation and this disposition of China to limit exotic life trade has resulted within the irruption of COVID-19.


This is not the first time when a country’s disposition to manage a remunerative however dangerous business has caused cross-border injury, parallels can be drawn to Canada’s failure to regulate the emissions of Sulfur dioxide within the trail smelter case[20] (the U.S. v. Canada), which had caused injury to America’s agricultural trade. The international court that was set up to provide judgment, in this case, arranged down the “transboundary harm principle”, consistent with that “a state cannot permit its territory to be utilized in such a way that may cause injury to a different state”. This principle has conjointly been adopted by the ICJ within the Corfu Channel case[21] (the U.K. v. Albania), where it was a command that “a state shouldn't wittingly permit its territory to be used for acts that may be verified contrary to the rights of different states”. within the gift scenario, there's substantial proof to corroborate the fact that China has wittingly hidden the character and extent of unfolding of the novel coronavirus from the remainder of the planet till it reached such a treacherous form and that if China had taken preventive measures in time, then this scenario would be way more ameliorable.


China by disobeying the international frameworks and rules has conjointly contributed to the expansion of this pandemic, and thus, should be the conferred blame for the acts and omissions committed by it and must be made to adequately compensate each state that is stricken by this pandemic. The Chinese Government isn't higher than law and since the acts of China have affected and destroyed the lives of billions of individuals across the planet, it should be penalized to ensure delivery of justice.


Footnotes [1] Naming the coronavirus disease (COVID-19) and the virus that causes it, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (Last Accessed on 22 April 2020). [2] https://www.worldometers.info/coronavirus/ (Last Accessed on 25 April 2020). [3] SARS (Severe Acute Respiratory Syndrome), https://www.who.int/ith/diseases/sars/en/ (Last Accessed on 25 April 2020). [4] COVID-19: Force Majeure?, https://www.shearman.com/perspectives/2020/03/covid-19--force-majeure-event (Last Accessed on 24 April 2020). [5] ICJ moves UNHRC against China for Covid-19 reparation, https://theenglishpost.com/icj-moves-unhrc-against-china-for-covid-19-reparation/ (Last Accessed on 12 April 2020). [6] Zhonghua Liu Xing Bing Xue Za Zhi, History of influenza pandemics in China during the past century, https://www.ncbi.nlm.nih.gov/pubmed/30180422 (Last Accessed on 12 April 2020). [7] Jeremy Page, Wenxin Fan and Natasha Khan, How It All Started: China’s Early Coronavirus Missteps, https://www.wsj.com/articles/how-it-all-started-chinas-early-coronavirus-missteps-11583508932 (Last Accessed on 21 April 2020). [8] Maggie Hiufu Wong, 3 billion journeys: World's biggest human migration begins in China, https://edition.cnn.com/travel/article/chunyun-2020-lunar-new-year-travel-rush-china/index.html (Last Accessed on 26 April 2020). [9] Strengthening health security by implementing the International Health Regulations (2005), https://www.who.int/ihr/publications/9789241580496/en/ (Last Accessed on 25 April 2020). [10] ibid. [11] Dweepobotee Brahma, Sikim Chakraborty, and Aradhika Menokee, The early days of a global pandemic: A timeline of COVID-19 spread and government interventions, https://www.brookings.edu/2020/04/02/the-early-days-of-a-global-pandemic-a-timeline-of-covid-19-spread-and-government-interventions/ (Last Accessed on 25 April 2020). [12] Lillian Yang, China confirms human-to-human transmission of coronavirus, https://www.theguardian.com/world/2020/jan/20/coronavirus-spreads-to-beijing-as-china-confirms-new-cases (Last Accessed on 25 April 2020). [13] Bethany Allen-Ebrahimian, Timeline: The early days of China's coronavirus outbreak and cover-up, https://www.axios.com/timeline-the-early-days-of-chinas-coronavirus-outbreak-and-cover-up-ee65211a-afb6-4641-97b8-353718a5faab.html (Last Accessed on 23 April 2020). [14]https://casebook.icrc.org/case-study/international-law-commission-articles-state-responsibility (Last Accessed on 24 April 2020). [15]Dr Shengjie Lai, Early and combined interventions crucial in tackling Covid-19 spread in China, https://www.southampton.ac.uk/news/2020/03/covid-19-china.page (Last Accessed on 22 April 2020). [16] Jeremy Page, Wenxin Fan and Natasha Khan, How It All Started: China’s Early Coronavirus Missteps, https://www.wsj.com/articles/how-it-all-started-chinas-early-coronavirus-missteps-11583508932 (Last Accessed on 27 April 2020). [17] The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China), PCA Case No. 2013-19. [18] https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf#page=9 (Last Accessed on 24 April 2020). [19] Law of the People’s Republic of China on the Protection of Wildlife, http://www.china.org.cn/english/environment/34349.htm (Last Accessed on 24 April 2020). [20] https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf, (Last Accessed on 24 April 2020). [21] Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15 XII 49, International Court of Justice (ICJ), 15 December 1949, available at: https://www.refworld.org/cases,ICJ,402398c84.html (Last accessed 27 April 2020).

Submitted by,

Shefali Singh,

Dr. Ram Manohar Lohiya National Law University, Lucknow.



© 2019 by AmicusX