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.
Also read: China’s blunders in Wuhan should settle the debate about democracy and economic progress
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.
Also read: The big coronavirus cover-up: Fighting truth and coronavirus, the China way
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.
Also read: Forget Covid-19 solidarity, there’s a global free-for-all over $597 billion medical trade
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.
Why is this COVID “thing” being treated as a HEALTH ISSUE and references made to WHO….
This is a case of MASS MURDER USING BIOLOGICAL WARFARE BY CHINA… DENYING AND SUPPRESSING ITS DEPLOYMENT … nothing more… nothing else.
Countries and THE PEOPLE OF THE “FREE WORLD”… excluding China … must demand full Justice…. Criminal and Civil… for these well planned and thought out… dastardly Acts and Actions by China….
If 1.5 Million Dead Bodies and 60+ Million COVID + is not enough Death and Suffering…. then ALL COURTS AND GOVTS ARE DEAF… DUMB …. BLIND….
This is NOT A HEALTH ISSUE… BUT MASS MURDER AND SUFFERING USING BIOLOGICAL WARFARE… WITHOUT ANY PROVOCATION….
Hello Team Print, i want you put further light on Article 75 of WHO Constitution.
Something makes me believe the Print’s comment section has been invaded by Chinese net trolls masquerading as Indian citizens.
Money is not everything life is more important and the death of people over the world should we must treat China as the plague as there thinking is of power .The world should come together and make what we need to isolate China as if we are able to do this we will give work to them that need it.Would this not see our world grow and give prosperity to our world
Where there is will there is way. Even though it takes lot of efforts to book China for its culpability under International law if all the well meaning countries come together it will not be impossible to nab China, either legally or economically. As we known, one of US citizens has already taken steps to sue China in that country’s Federal Court. That shows the sentiments of the world citizens. Hence the governments of all countries world over are duty bound to act on the sentiments of their citizens.
Such international institutions will have no impact on the CCP. Past events have clearly proven that. The CCP will make use of agencies such as the UNSC and ignore others such as the ICJ. But money talks and talks loud. To force the CCP to be cognizant of the world’s heath concerns the wealthy West must take steps to restructure the global supply chain, currently running through China. This virus is a wake up call; that entities like the CCP cannot be allowed to hoard information on issues that are critical to the health and well being of people the world over. Only actions that will curtail the flow of money into China will change the behavior of the CCP.
This is called “fake” news and totally fake theory.
Instead of meddling with UNO laws, the author should have tried tone explain why in the world, did he (or some others) think that a totally unknown virus should or could have been declared as pandemic within few hours of the discovery of patient ZERO.?
Infact, the case against other western countries can be way stronger , who ,even after knowing all about it, did nothing for almost two months – just wanted their economies to keep going.. why don’t we talk about that part?
An interesting theoretical speculation on whether reparations can be exacted from China for waging a biological war on the world:
In my opinion, this dissertation lack an appreciation of Real Politik on which enforcement depends.
So, no legal remedy is feasible.
US-NATO is equally guilty of genocides, but willful genocides and crimes against humanity, post the formation of the United Nations in the Middle East and elsewhere such as Vietnam.
China is a Nuclear Armed Great Power, ascending to be the sole Super Power on this planet and a Permanent Member of the UN Security Council.
What could be possible is for Nations, in concert, outside of such bodies as UN, to place a trade embargo on China which will not be lifted until China makes suitable reparations to these Nations for the consequences of COVID 19.
But it may become impossible to do so as COVID 19 may leave Nations far too debilitated to oppose China. And most Nations, such as India, seem to be in thrall of China and dependent on China for various reasons apart from territorial integrity and peace.
China has calculated well and has implemented its bio war strategy after its Bio Weapon escaped its Wuhan lab.
There should not be blame China . There WHO also precisely involved. We should see involvement from both the side . Due to both of them whole world are suffering. How this type negligence happened?
What you intend to say has a double meaning, are you sure, you don’t want to blame China?
I don’t know why THE PRINT gives space to people like this author. This was an unknown virus which wasn’t known to China either though it attacked that country first. Locusts are a well known entity, who would you blame if a locust attack happens on your crop? Your neighbor farmer?
China informed WHO in December 2019.
That’s why we have D-19 in Covid19.
Why the WHO and/or the Sovereign States did not bother to take action ??
Let us wait and see who will bell the cat ??
China is a country it is not a Cat, Dear Jain International court is not your servant. It has other important things to do.
All reports on taking China to ICJ or similar organizations reminds me of the story – Who will bell the cat? The bell is there- the laws and the institutions- but in the current global situation China is the cat. It is the biggest trading partner of most countries and their biggest investment partner. It is by far the major supplier of active pharmaceutical ingredient (API).
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