1. 0 INTRODUCTION

In the period of 20 years, China has taken
the World through a gruesome path, twice. After being criticized for
a slow response to SARS, China is once again facing global scrutiny for its
handling of the new ‘Coronavirus’. China repeated the obstruction
of information that worsened the SARS crisis 18 years earlier. In
that case, China tried to cover up the SARS epidemic, which led WHO member states to adopt the new
International Health Regulations in 2005. In both cases, China and the world
would have been spared thousands of unnecessary deaths had China acted
forthrightly and in accordance with its legal obligations. 

The events to date has shaken confidence in the Chinese Communist Party at home and
abroad. China’s initial response to the crisis was less than impressive. The
Wuhan government was secretive and self-serving. The Chinese state made
evidently intentional misrepresentations to its people concerning the outbreak.
Reports showed that the Chinese Government silenced doctors who raised the
alarm of the virus, minimizing the danger to the public even as they were
bewildered and overwhelmed. State media also suppressed information about the
virus. Although authorities closed the Wuhan “wet market”, the epicenter of the
contagion, they did not take further steps to stop the wildlife trade, where
scientists traced the virus to.

The Covid-19 pandemic has affected all systems. Financial
markets have shuddered and have been pulled into all kinds of uncharted
territories, commodity prices have fallen, especially oil prices. According to
the International Monetary Fund, the global economy is now in a recession. Schools
have been closed globally, religious and social gatherings have been
restricted. There is now this new trend of ‘Working from home’. Summarily, the
whole world is in a lockdown, mildly say- a compulsory holiday.

This article addresses the possible arguments that International
law imposes an obligation on China to make reparation for COVID-19-related
harms or say damages.

 

2.0  CHINA’S OBLIGATION UNDER INTERNATIONAL LAW

The scale of the damage, Worldwide, has
prompted arguments of whether or not, China bears international legal
responsibility for the pandemic and should compensate countries harmed by the
outbreak.

China is one of the 194 states, party to the
2005 International Health Regulations, which is legally binding. China has a
duty to rapidly gather information about and contribute to a common
understanding of what may constitute a public health emergency with potential
international implications. The legally binding International Health
Regulations were adopted by the World Health Assembly in 1969, to control six
infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever,
and typhus. The 2005 revision added smallpox, poliomyelitis due to wild-type
poliovirus, SARS, and cases of human influenza caused by a new subtype, set
forth in the second annex.[1] Annex 2 of the IHR
provides for: “Any event of potential
international public health concern, including those of unknown causes or
sources and those involving other events or diseases than those listed”.
Obviously, Covid-19 falls under this category.

States are expected to provide expedited, timely, accurate, and sufficiently detailed information to
the  World Health Organization about the
potential public health emergencies identified in the second annex in order to
galvanize efforts to prevent pandemics, according to Article 6 of the IHR.
Article 7 also provides that “any unexpected
or unusual public health event within a country’s  territory, irrespective of origin or
source”, should be reported to the WHO. The body (WHO) also has a mandate in Article 10 to seek
verification from states with respect to unofficial reports of pathogenic
microorganisms. States are required to provide timely and transparent
information as requested within 24 hours, and to participate in collaborative
assessments of the risks presented. Yet China rejected repeated offers of
epidemic investigation assistance from WHO in late January (and the U.S.
Centers for Disease Control and Prevention in early February), without
explanation. The Washington Post concluded in a story on February 26 2020 that
China was not sending the details that WHO officials and other experts expected
and needed.

3.0 CHINA’S LEGAL RESPONSIBILITY

It can be seen that China had violated international law on
infectious diseases and, under the International
legal principles of state responsibility, has an obligation to make full
reparation for the harm done. None of the treaties addressing the international
spread of infectious diseases dating back to the nineteenth century have rules
requiring payment of compensation for damage in other countries associated with
violations of treaty rules. The leading contemporary treaty, the International Health Regulations
(2005) (IHR), has no provisions on this issue. This situation is
not unusual. Most treaties do not address whether the violation of their rules
creates an obligation to compensate those states parties adversely affected by
harms caused by the violation.[2]

A state violating international law has “an
obligation to make full reparation for the injury caused by the internationally
wrong act”, under Customary
international law on state responsibility.  This customary rule has played no discernable role in
disease outbreaks over the long history of international health cooperation,
even when states have argued that countries violated applicable treaties.
States have not seriously pursued compensation against countries accused of
breaching treaty obligations to report disease events or refrain from imposing
trade or travel measures that have no scientific basis.

States have not been keen
to use ‘customary law on state responsibility in the infectious disease context’
because of how political and epidemiological considerations align. Fulfilling
treaty obligations to report disease outbreaks involves challenging scientific
and public health questions and difficult political calculations. Pathogenic
threats with the potential for cross-border spread can appear in any country.
For example, although the origin of the devastating influenza pandemic of 1918-19 remains unclear, the
United States is on the list of potential countries of origin. The H1N1 virus
that caused an influenza pandemic in 2009 was first detected in the United
States. This reality creates a shared interest among states not to litigate
disease notification issues. Likewise, a state experiencing an outbreak will
complain about irrational trade or travel measures, other countries impose.
However, next year, that same state might want to implement similar measures
when another nation suffers an outbreak, which reveals reciprocal interests
among states not to seek reparations for violating treaty rules on trade and
travel measures.[3]
States understand that, tomorrow, the shoe could be on the other foot, which
creates a collective incentive among countries to avoid being legalistic about
reporting obligations.

Article 56 of the IHR
(2005) requires an injured state to first explore negotiation or any other
peaceful means of their choice including good offices, mediation, or
conciliation, to settle any dispute involving treaty interpretation and
application. Failing that, the parties may refer the dispute to the WHO
director general or parties to the dispute may agree to compulsory arbitration
in which the arbitral award shall be binding.

Under
the principles of state responsibility, States have the obligation to make
reparation for the damage caused by their wrongful act. Thus, China may be
liable to pay reparations over its failure to promptly notify the WHO about the
outbreak. Reparations involve restitution, and where that is no longer
possible, the offending state pays compensation “for loss sustained which would
not be covered by restitution in kind or payment in place of it” (Chorzow
Factory,1927). Such assessment of damages may also come with an award of
satisfaction, or a formal apology and an assurance that its unlawful conduct
will not be repeated (LaGrand Case, 2001).[4]

However,
countries have never used the dispute settlement provisions in infectious
disease treaties from the nineteenth century through today — an indication that
states have no interest in legal remedies in this area.

 4.0
CONCLUSION

Under the principles of
state responsibility, separating what damage is attributable to China’s delayed
reporting and what harms arose because other governments botched their
responses to COVID-19 would be difficult. Such causation issues also help
explain why states have, historically, not pursued reparations for damage
associated with alleged violations of treaties on infectious diseases.

Many countries now struggling with COVID-19
had time to prepare for the pathogen’s transboundary spread after China
reported its outbreak under the IHR. 

At
the moment, no state party has alleged that China violated its IHR notification
obligations but two class actions have been filed against China for
“damages suffered as the result of the coronavirus pandemic” before
the U.S. District Court in Florida and Texas, shocking the Chinese legal community.

There
have been clamours that China should be held responsible this time, for the
Covid-19 pandemic so as to protect the future.

It is no longer news that on the wake of the Coronavirus pandemic, the Federal Government of Nigeria and various State Governments put in place some drastic measures to prevent the spread of the life-threatening scourge. The danger posed to humanity and Nigerian citizens inclusive, by the ravaging pandemic has been taken very seriously by governments all over the world. For this purpose, the President of the Federal Republic of Nigeria announced a total lockdown of Lagos, Abuja and Ogun States in the national broadcast of March 29, 2020. Other State Governments have followed suit through the announcement of various restrictions and stay-at-home Orders by Executive Orders and/or regulations pursuant to their powers under the relevant enabling Quarantine Act.

The concern of this write-up is the manner of enforcement of such Executive Orders, restrictions and regulations by the law enforcement agencies and men of the Nigerian Army which has brought with it Police brutalisation, dehumanization and outright death of the citizens. The Tribune of today published the story of someone that was killed in Ogunnu, a suburb of Warri in Delta State, while driving for refusing to stop when he was reportedly flagged down by the security personnel. These various acts of brutalisation and dehumanization of citizens must be condemned in its entirety. It is an extra-judicial killing, it is illegal and absolutely unconstitutional.

It needs to be emphasised that the very reason for the announcement of these stay-at-home Orders and other restrictions on movements is essentially to save lives. Hence, the phrase: stay-at-home to stay safe. If the objective of a policy is to save lives, it is therefore totally illogical and inherently contradictory to kill in order to enforce safety measures. Indeed the point must be made for the umpteenth time that it is the business of the regular Police to enforce and maintain law and Order in the society as distinct from the Armed Forces whose duty is to protect the nation against external aggression and internal insurrection. The objective of the measures will be defeated if human lives are wasted, treated with disdain and their Human Rights violated with reckless abandon.

We saw a good example of how to enforce law and Order by the reported arraignment and conviction of twelve (12) persons for violating the provisions of Ekiti State Coronavirus Prevention of Infection Regulations 2020. The violators were tried and fined by the Chief Magistrate Court of Ekiti State. We advise everyone involved in the enforcement of these Orders in the different States of the Federation to take que from this example by arresting the violators and arraigning them before the appropriate Court for trial and sanction if found guilty. To do otherwise is to resort to self-help which is a product of executive lawlessness, an anathema and abomination in a constitutional democracy such as ours.

I call on the civil populace to see the reason behind the restrictions and other safety measures and directives to put up with the momentary inconvenience in order to experience the long term gain for ourselves, our families, the Nation and in the interest of public health and public safety. May I also say that any further act of brutalisation, dehumanization and unprofessional conduct on the part of the law enforcement agencies should be reported to the nearest Nigerian Bar Association Branch or directly to the Inspector-General of Police for necessary actions. With regards to the Armed Forces, report should be directed to the Defence Headquarters by sending text or WhatsApp messages through the telephone numbers provided by the Headquarters of the Nigerian Army.

Let us join hands together in unity of purpose to fight the Coronavirus war and live after the guaranteed victory.

Dated April 3, 2020.
Dele Adesina SAN

You are invited to participate in our innovative lunchtime mentoring session holding tomorrow Wednesday 1 April  2020.

Discussions will be led by our esteemed Senior Advocates of Nigeria, Mia Essien, SAN, Abimbola Akeredolu, SAN and Prof Toyin Akintola.

*Main Topics:*
1. Professional Development

2. Managing Practice in a Coronavirus Environment; and

3. Understanding Mentoring

Sub-Topics as time will permit are Self Development, Advocacy Skills, Dealing with Sexual Harassment in the Workplace, Work-life Balance, Choice of Life Partner. 

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Download Microsoft Team now.  Look forward to meeting you tomorrow and be sure to inform others.

The Corona-Virus
Disease (COVID- 19), famous for its widespread, has killed tens of thousands of
people across the globe and has raisedan indispensable question in the minds of
many; whether the Chinese government can be held liable in Negligence, whether the
pandemic is an ‘act of God’. In the legal community, an act of God is a concept
that allows a party exemption from instances of strict liability and negligence.
This article is concerned primarily with the debate, whether the corona-virus
pandemic is an act of God or an act of man.

An event,
occurrence or accident that cannot be prevented by ordinary human foresight,
normally by an operation of natural forces free from human intervention, like
flood or earthquake is an ‘Act of God’. James LJ in Nugent V Smith[1]
described it as “any accident due to natural causes directly and exclusively
without human intervention and that could not have been prevented by any amount
of foresight and pains and care reasonably to have been expected”.The
determining factor for an act of God is that it “proceeds from the
forces of nature alone, to the entire exclusion of human agency.”[2]

The courts have
expanded this concept by including similar defences such as force
majeure and peril of the sea to the mix. The courts have also
expanded on the no-fault concept and used the term ‘inevitable accident’ to
describe certain accidents, whether or not caused by an act of God, where all
reasonable precautions had been taken and the accident occurred anyway. An
inevitable accident, unlike an act of God, can start with human action or
originate with a natural force.[3]

On December 31,
2019, the World Health Organisation(WHO) heard the first reports of a previously-unknown
virus behind a number of pneumonia cases in Wuhan, a city in Eastern China with
a population of over 11 million.[4]What
started as an epidemic mainly limited to China has now become a truly global
pandemic with cases globally surpassing 669,310 and deaths, at least 30,982
people.[5]
Not only is the virus a major concern from a public health perspective,
businesses are seeing disruptions which are only likely to increase in the
coming weeks and months.

It is apparent
that the disease originated from a Wuhan seafood market where wild animals,
including marmots, birds, rabbits, bats and snakes, are traded illegally.
Coronaviruses, constituting the subfamily 
Orthocoronavirinae, are known to jump from animals to humans, so
it is thought that the first people infected with the disease, a group
primarily made up of stallholders from the seafood market, contracted it from
contact with animals.

The hunt for the
animal source of Covid-19 is still unknown, although there are some strong
contenders. A team of virologists at the Wuhan Institute for Virology released
a detailed paper showing that the new coronaviruses’ genetic makeup is 96%
identical to that of a coronavirus found in bats, while an as-yet unpublished
study argues that genetic sequences of coronavirus in pangolins are 99% similar
to the human virus. Some early cases of Covid-19, however, appear to have
inflicted people with no link to the Wuhan market at all, suggesting that the
initial route of human infection may pre-date the market cases. Although the Wuhan
market was shut down for inspection and cleaning on January 1, 2020, it appears
that Covid-19 had already spread beyond the market itself.

United States President
Donald Trump has repeatedly referred to it as the “Chinese virus”. Many of his
critics insist the term is racist. U.S. Sen. Kelly Loeffler, opines that the
crisis should not be politicized by assigning blame, but our focus should be on
pulling together in the common fight against a global disease that makes no
distinction between people and recognizes no borders. However, many still argue
that the virus is a failure of governance, not a blind force of nature
independent of human agency, caused in part by incompetent, malicious, and
corrupt politicians. To ignore the political dimension of the coronavirus
pandemic is an excellent way to ensure its recurrence, and that to prevent a
recurrence, we have to hold accountable the politicians responsible for its
global transmission and uncontrolled spread, with all its terrible consequences
to populations and economies around the world.[6]

As one of the
194 states party to the legally binding 2005 International Health
Regulations, China has a duty to rapidly gather information about and
contribute to a common understanding of what may constitute a public health
emergency with potential international implications. The legally binding
International Health Regulations were adopted by the World Health Assembly in
1969, to control six infectious diseases: cholera, plague, yellow fever, smallpox,
relapsing fever, and typhus. The 2005 revision added smallpox, poliomyelitis
due to wild-type poliovirus, SARS, and cases of human influenza caused by a new
subtype, set forth in the second annex.

Article 6 of the International Health Regulations requires states to provide expedited,
timely, accurate, and sufficiently detailed information to WHO about the
potential public health emergencies identified in the second annex in order to stir
efforts to prevent pandemics. States are required to provide timely and
transparent information as requested and to participate in collaborative
assessments of the risks presented. Yet China rejected repeated offers of
epidemic investigation assistance[7]
from WHO in late January, as well as the U.S. Centres for Disease Control
and Prevention in early February, without explanation.[8]This
answers the question whether reasonable care was taken by China to prevent the
horrific consequences the disease posed. China’s failure to expeditiously and
transparently share information with WHO in accordance with the International
Health Regulations[9]
constitutes an early and subsequently extended breach of its legal obligations.

An
epidemiological model at the University of Southampton found that had China
acted responsibly just one, two, or three weeks more quickly, the number
affected by the virus would have been cut by 66 percent, 86 percent, and 95
percent, respectively.[10]
By its failure to adhere to its legal commitments to the International Health
Regulations, the Chinese Communist Party has let loose a global contagion, with
mounting material consequences.[11]

Other than the
fact that the act of God defence is still not relied on very often, likely
because of the difficulty of proving that human elements played no role in causing
an injury, China’s initial lackadaisical attitude, malfeasance and breach of an
international obligation is certainly the cause of the cost of the coronavirus
disease. Thereby making it improbable that the defence will excuse the Chinese
government. Hence, China bears legal responsibility for its internationally
wrongful acts.[12]

Under Article
31 of the Articles of State Responsibility, states are required to make
full reparations for the injury caused by their internationally wrongful acts.
Injuries include damages, whether material or moral. Injured states are
entitled to full reparation “in the form of restitution in kind, compensation,
satisfaction and assurances and guarantees of non-repetition”.[13]
Restitution in kind means that the injured state is entitled to be placed in
the same position as existed before the wrongful acts were committed.[14]
To the extent that restitution is not made, injured states are entitled to
compensation[15], and
satisfaction, in terms of an apology and internal discipline and even criminal
prosecution of officials in China who committed malfeasance.[16]As
the world continues to suffer the costs of China’s breach of its legal duties,
it remains to be seen whether the injured states can be made whole.

Perhaps, China
did not intentionally create a global pandemic. However, the increasing
incidents of sickness and death as well as the economic cost of the pandemic
cannot be overlooked. The world has paid and is still paying for China’s
carelessness.

Written by:

Oluwabukunmi
Adeniran.

---

Dear Colleagues, I recognise that as lawyers, we live a very busy life. Our time and attention are usually divided between reading, drafting, court appearances, client meetings and research work to mention a few all aimed at servicing the needs of our Clients. Our Profession is a jealous Profession which possesses us absolutely day and night. Consequently, a sedentary lifestyle and self – isolation at home may be alien to some of us. Though staying home to stay safe has become a task that must be done, we can still be productive while observing these safety measures by investing the time we have at home rather than spending it.

We can invest the time by drafting those outstanding briefs and pleadings, vetting of documents, reading our law reports, researching into specific areas of legal interest and of course audio and video calls and conferencing with clients to render both curative and preventive legal advice and opinions.

Recognising that health is wealth, exercising the body is also of paramount interest. We must remain active so as to prevent weight gain and  strengthen our immune system as this will make us less susceptible to infections including that of the Corona Virus. We must continue to take the necessary precautions to prevent the spread of the virus and flatten the curve. It is my confident belief that the earth will reject Coronavirus in all its entirety because the earth is given by God to the children of men. Surely the end of the virus is coming soon. Our expectations shall not be cut-off.

I urge you to stay alive as we will all rise from this challenge stronger, healthier and with a determined mind to continue to serve the interest of our clients, our nation and justice in general.

My warm greetings to you and your family.
Thank you.

Dele Adesina SAN

#securethefuture
#nigerianlawyers

Over the past few days, many lawyers have requested for an extension of the deadline for payment of Bar Practising Fees due to the recent global state of events and stay at home orders being directed by various State Governments. 

The cause for this call is no other than the pandemic which is currently putting the world on mandatory holiday. It is argued that some practitioners may not be able to adequately provide for themselves, let alone afford the practising fees at this time when the courts and their chambers are closed.

However, the truth is that the NBA President, Paul Usoro SAN really cannot do anything about it. Many lawyers may be unaware but the provision for payment of Bar Practice Fees is provided in Rule 9 of the RPC.

Furthermore, Article 4 (1) (b) of the NBA Constitution also stipulates that Bar Practice Fees be paid by end of March for lawyers to enjoy the full membership benefits of the NBA, including having right of audience in court and right to vote and be voted for at the NBA Elections.

Therefore, if the deadline were to be postponed, it will require an amendment of the NBA Constitution which can only be effected at the Annual General Meeting of the NBA. More so, calling an extraordinary AGM is also impossible in view of the COVID-19 pandemic.

Lawyers should also note that the
NBA does not have the power to amend the Rules of Professional conduct, only the Bar Council has.

The valid date for the Annual Payment of Practice Fees of Nigerian Bar Association(NBA) is between Ist January to the 31st of March every year and due to the foregoing, lawyers are encouraged to take advantage of the online payment options here

https://nigerianbar.org.ng/membership-portal