Can China be brought before an international court over Covid pandemic? Yes

The court action would require significant international cooperation and willpower to implement. But to avoid another pandemic, it must be done.

Chinese President Xi Jinping | Qilai Shen | Bloomberg File photo

When political dust from the coronavirus storm finally settles, fingers will be pointed and responsibility strictly apportioned. Inevitably, the question of China’s legal accountability for the coronavirus pandemic will be raised — indeed, whispers are already doing the rounds. In particular, strategies to seek reparation for economic harm and to forestall similar outbreaks will have to be devised.

What will be the legal framework employed to assess Chinese liability when the need arises? Domestic law, for all its other benefits, is unsuited to this task: the doctrine of sovereign immunity precludes local courts from ruling on the acts of foreign governments. We must, therefore, steer our sight outward, looking to supranational legal frameworks for answers to this precarious inquiry.

International Health Regulations and WHO

Much criticism levelled against China targets its response in the early days of the coronavirus, when the outbreak could still have been successfully contained. Instead of sharing information transparently with the international community, China opted to censor, misrepresent and suppress data about the novel corona strain. These acts rendered it extremely difficult for the World Health Organization (WHO) and foreign governments to adequately prepare for this calamitous infection.

In 2005, the World Health Assembly, the WHO’s highest decision-making authority, adopted the International Health Regulations to prevent precisely this sort of information asymmetry during public health crises. Article 6 of the Regulations requires every party to notify the WHO within 24 hours of any event that poses the risk of an international public health emergency. Article 7 further obligates such parties to share all data concerning the crisis with the WHO on a continuing basis. Article 11, in turn, requires the WHO to share such data, once verified, with other countries so that they can enact precautionary measures.

Together, these provisions constitute a global disease surveillance system designed to ensure that governments aren’t forced to face medical emergencies blind. By flouting these rules to save political face, China impaired the international response to the SARS-CoV-2 virus. For this, it must be held to account.

Yet, this only paints half a picture of liability.

International environmental law and transboundary harm principle

The more compelling question of liability is not that of data-disclosure but of Chinese culpability for the circumstances that culminated in the creation of the pathogen. In 2003, China’s wet markets and wildlife trade industry were found responsible for the SARS outbreak that killed nearly 800 people. In the years that followed, experts repeatedly predicted that unless China restricted these industries, similar outbreaks were inevitable.

Far from heeding such warnings, China’s Wildlife Protection Law designated wildlife an economic resource, encouraging and protecting the country’s exotic meat industry. Although changes to this policy were ostensibly made in response to disease outbreaks in the past, they remained provisional and poorly implemented. China’s unwillingness to curb its proliferating trade in exotic animals enabled the SARS-CoV-2 virus to jump to humans at a wet market in Wuhan, triggering the pandemic we now find ourselves trapped within.

Yet, this is hardly the first instance of cross-border damage caused by a country’s unwillingness to regulate a lucrative, hazardous industry.

In 1941, an international tribunal was constituted to rule on Canada’s responsibility for failing to regulate sulphur dioxide emissions from a smelter plant that caused damage to America’s agricultural trade. In the ensuing award, the tribunal ruled that no government could permit its territory to be used in a manner that causes injury in the territory of another, laying the foundation of the ‘transboundary harm’ principle. This was adopted by the International Court of Justice (ICJ) in the Gabčíkovo-Nagymaros case, where it noted the obligation of national governments to regulate activities within their jurisdiction that carried the potential to damage the environment of other countries.

Although initially applied only to physical pollutants, the definition of transboundary environmental harm was significantly expanded by the ICJ in the Nuclear Weapons case to encompass any threat that endangers “the living space, the quality of life and the very health of human beings, including generations unborn” – in that case, nuclear radiation.

This bolstered definition, frequently invoked in other cases, incorporated in international instruments and even codified by the International Law Commission, stands firmly entrenched in international law. China’s failure to regulate wet markets, enabling the global transmission of the deadly coronavirus, certainly falls squarely within its corners. Consequently, an international court would be permitted not only to award compensation for the economic harm suffered by foreign governments as a result of Chinese (in)action, but also to compel China to enact legislation banning such markets to prevent future pandemics.

The question of jurisdiction

A final piece in this puzzle demands consideration: even if China’s actions were unlawful, how might it feasibly be brought before an international court?

The jurisdiction of international tribunals is consensual, and China has been particularly resistant to their authority in the past. Although the United Nations Security Council is empowered to refer cases to the ICJ, it seems glaringly obvious that China, as a permanent member of the UNSC, would never permit this to occur.

Nonetheless, more creative avenues to assert jurisdiction do exist.

An oft-overlooked provision in the constitution of the WHO empowers the organisation to refer disputes concerning the application of its terms to the ICJ. China’s failure to disclose information could plausibly fall foul of Articles 22 and 64 of the constitution, which mandate enforcement of the International Health Regulations and require governments to disseminate data. Furthermore, China’s wilful negligence in regulating wildlife trade conceivably imperils the objective of the WHO, enshrined in Article 1, triggering a breach of the treaty. Though previously untested, this route does offer promise for invoking the contentious jurisdiction of the ICJ to assess Chinese liability.

Yet, there also exists a second, better-traversed legal route: the ICJ can be called upon to provide advisory opinions on questions of law by organs of the UN. While such opinions are not directly enforceable, they do provide an authoritative assessment of legal liability around which governments can synchronise their political response.

This strategy was employed in the past to assess the legality of Israel’s wall of separation, and the validity of Kosovo’s declaration of independence.

Were the ICJ to find China liable for the current pandemic through this route, national governments would be empowered to employ ‘countermeasures’ to bring China to account – including the seizure of its international assets, a strategy used effectively against Russia and Argentina to compel their compliance with international awards. This might well prove sufficient to deter future negligence in the face of public health crises.

By no means is either alternative simple: each requires significant international cooperation and willpower to implement, particularly considering China’s towering economic influence. But they are ultimately the only legal options available to deter another global pandemic; the stakes have, truly, never been higher.

The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.