COVID 19 – The Liability of China under International Law For Damages Suffered

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.