China's Liability For The Covid-19 Outbreak | By Siddharth Soni

China's Liability For The Covid-19 Outbreak 

By Siddharth Soni 

 

With the novel coronavirus bringing the whole world to a standstill, it is said that this virus has its origins in the wet markets of Wuhan, China. In the month of December 2019, a few doctors from Wuhan identified that a new strain of the Coronavirus family, SARS-CoV-2, was causing respiratory problems in humans. It is being alleged that Chinese government is responsible for not containing the virus when it was identified at its first instance. This negligence by the Chinese government led to the virus being mass-proliferated and progressing to different parts of the world. This has sparked debates all around the globe. This article would focus on affixing China’s liability for the trans-boundary harm that this novel coronavirus has caused. 

 

State Responsibility of China

The customary rules for affixing state responsibility on states are included under the 2001 Draft Articles on the Responsibility of States for Wrongful Acts (‘ARSIWA’). Wrongful acts which are attributable to the state and which also constitute a breach of international obligations are defined in Article 2 of this document. Article 4 of the same document focusses on the state’s responsibility if the act is perpetrated through legislative, executive or judicial branches of the government. The information about the virus flowed from the Wuhan Institute of Virology (WIV) to the local Wuhan authorities, all being considered as the organs of the Chinese government. Stressing on the international obligations that the Chinese government has failed to commit to, it had failed to adhere with its due diligence obligations by not sharing relevant and timely information deliberately and through gag orders, ordering biotech companies to stop testing. Due diligence is a standard of good governance, assessing whether a state has done what was reasonably expected of it when responding to a harm or danger. China also seems to violate Article 14 of ILC Draft Articles by not fulfilling its responsibility to promptly and transparently share information with the World Health Organisation in accordance with the International Health Regulations. The International Health Regulations, 2005 binds all the WHO signatories. The major focus of these health regulations is to report disease outbreaks rapidly and transparently.

 

Article 4 of the same health regulations mandates the establishment of a national IHR focal point by the government, which is used to timely notify about disease outbreaks. Article 5 requires a country to develop core capacities to ‘detect, assess, notify, and report events’ under the IHR.  The Ministry of Health in China was designated as the focal point, while China also ensured that its public health capacity met the IHR requirements. Therefore, China had the infrastructure to respond to the COVID-19 outbreak more efficiently, under its primary obligations in the IHR. In accordance with Article 6(1) of these health regulations, a country is mandated to inform the WHO about the activities which can be considered as Public Health Emergencies of International Concern. China claims to have informed the WHO about the outbreak of the virus, but only actually did so after a few days, which constitutes to the non-fulfilment of its international obligations. China had refused to share information about the spread of the infection amongst the healthcare workers, which makes it liable under Article 7 of the IHR.

 

Law on Trans Boundary Environmental Damage

The law on Trans Boundary harm was first discussed in the Trail Smelter Arbitration, which states that sovereignty of a state is not absolute in nature and that it cannot be used to harm another nation state. Principle 21 of the Stockholm Declaration further clarified,  rather went on to impose responsibility, upon nation States for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. This principle was upheld by the International Court of Justice in its Nuclear Weapons Advisory Opinion, wherein it stated the due diligence obligations upon nation states in Trans boundary contexts. In yet another case of Ecuador vs. Columbia (2008), ICJ focussed on the international obligations of Columbia which led to the spray of a herbicide in the territory of Ecuador. Under Article 3 of the International Law Commission’s on Transboundary harm, China can be held accountable for violating its duty of due diligence and not taking appropriate measures to prevent a trans boundary harm.

 

Beijing, China

 

Jurisdictional Challenges

 

Article 75 of the WHO constitution states that ICJ can have jurisdiction over the settlement of disputes relating to the WHO Constitution. The jurisdictional challenge in today’s times would be of the fact that disputant parties are free to choose any mode of dispute settlement, instead of only triggering ICJ jurisdiction. In this context, it would be very challenging for the states wishing to impose liability on China. International adjudication is consent-based, but it is also extremely crucial to drag up a nation to the world court for non-fulfilment of its international obligations. In this context, China would never consent on referring its case to the International Court of Justice. Despite the challenges, some states have tried to make China liable for its actions. Missouri, a state in the United States was the first ones to sue China alleging suppression of information, arrest of several whistle-blowers and spreading the disease that has led to the cause of huge amount of lives and has also caused an ‘irreparable damage’ to several nations.

 

China can also be held guilty under Article 7(1) of the Statute of the International Criminal Court, which talks about ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” as mentioned under ‘crimes against humanity.’ The prosecutor’s office has authority to conduct proceedings proprio motu under Article 15. Though China is a non-signatory to the Rome Statute, the prosecutor can be allowed to conduct investigations on the same.

 

Conclusion

 

Despite the jurisdictional challenges that the nations would face to bring China’s guilt in front of the world, the Law on Trans Boundary Environmental Damage can be utilised to a great extent. After analysing the legal liability of China, it is clear that China has somewhere failed to observe due diligence. If it had done so, the world would have been a better place to live in. While undertaking commercial activities in the wet markets of Wuhan, where meat of animals is consumed in huge quantities, China has failed to comply with its international obligations under the International Health regulations, 2005 and also provisions relating to State Responsibility.

 

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Siddharth Soni is a law student of Symbiosis Law School, Pune and is highly skilled in mooting. He has been a part of various international as well as national moot court competitions. Apart from this, he has also attended various training programs and summer schools. He is very interested in subjects like Intellectual Property Rights and Cyber Laws. He has a passion for constantly increasing his knowledge. In addition, Siddharth has also pursued various diploma programs and certificate courses.

 

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