China & WHO: Imputability for the Pandemic

Tasha Bluewin Joseph, Jindal Global Law School

Introduction

The current pandemic is one of the most devastating, unprecedented, and challenging events in the 21st century due to the several issues it creates in an integrated and globalized world. The Covid-19 virus originally came from the province of Wuhan in China, making it the virus’s initial epicentre. While the place of origination of the virus has been determined, there are still mixed opinions on what led to the actual cause of the outbreak in China. Some attribute the cause of the pandemic to a mishap in a Virology lab in Wuhan, while others attribute it to the running of wet-markets in China. While this is yet to be determined, the place of origin of the virus, in any case, is a critical factor in determining responsibility and accountability for the loss of life and economic damages suffered worldwide. This is especially important for those seeking compensation for the losses suffered due to this pandemic.

Violation of International duties

There indeed exists no express provision holding the People‘s Republic of China (PRC) responsible for the world at large. However, the imputability of China will have to be based on the idea of a possible ‘duty’ it held towards the world, inferred from the International treaties it signed.

It can be evidently seen that China took minimal effort and several untimely measures to contain the virus as it only declared a lockdown in Wuhan nearly a month after it informed the WHO about the epidemic and continued to have international flights arriving and departing from its territory. The actions undertaken by China lacked transparency and openness. If one had to list down the claims against China, they would mainly concern 1) suppression and cover-up of information from the world community, 2) detention of whistleblowers, 3) destruction of crucial medical evidence 4) delay in conveying the information to WHO for immediate action, 5) gross negligent behaviour by concealing the information and not acting immediately to contain the virus, 6) mismanagement of the epidemic, 7) prevention of entry of investigative authorities into Chinese territory, and 8) not acting in good faith.

China is a member of the WHO and is bound by certain obligations regarding concealment of information and suppression of medical evidence. In this situation China breached it’s duty under Article 6 of the International Health Regulations (IHR) 2005, with regards to notifying the World Health Organization (WHO) of a public health emergency. It did not conduct evidence-based investigations or ensure the upholding of human rights while managing its situation. Under the same treaty, it violated Article 7 for not sharing information promptly during a health crisis and providing epidemiological reports as mandated by the WHO. This led to the uncontrollable spread of the virus to other countries due to the absence of strict measures in place to handle the increase in Wuhan cases.

The revised IHR ensures that the countries build their disease surveillance capacities and report any public health crises immediately. It also requires affected States to take requisite measures such as travel bans, trade restrictions, etc. to prevent other countries from being affected. However, none of these amendments have brought in a substantial change in the application of these rules.

According to Article 12 (1) and (2) (c) in the International Covenant on Economic, Social and Cultural Rights, China has not honoured its duty of ensuring the ‘right to the highest attainable standard of physical and mental health for which all epidemics and other diseases must be prevented and controlled.‘

China can additionally be held responsible under the Responsibility of States for Internationally Wrongful Acts, 2001, that holds states accountable for their internationally wrongful acts. This law embodies a fundamental principle of international customary law, which binds all nations. It is seen under Article 2 that any ‘wrongful acts’ is one that can be ‘attributable to the state’ which, constitutes a breach of an international obligation. We can attribute the conduct to the State when it is an act done   All these obligations can be read as ‘duties’ China owed to the rest of the world.

A major problem that may arise in this matter would the un-enforceability and non-binding nature of these legal obligations, especially the IHR. It would then be essential to use diplomacy and soft laws in order to hold China accountable.

All the above mentioned treaties and conventions are signed based on mutual trust, and hence if there is any breach of this trust by any member, there should be a process to hold such a member accountable for such breach. Diplomatic pressure must be applied in order to compel the Chinese State to close down their wet markets, prohibit wild-life trade of endangered species, and monitor the activities of all research labs like the Wuhan Institute of Virology. In addition to this the Chinese State must also permit a thorough investigation to determine the cause of the current outbreak and the role the State played in containing information about the same.

These duties should be read along with principles of customary law, such as the ‘no harm principle‘ or no ‘transboundary harm’, in order to expand the ambit to cover harm arising from outbreaks of highly contagious diseases such as COVID-19 and hold States accountable for transboundary harm. The Draft Articles on Prevention of Transboundary Harm provide for State liability for any actions that could lead to physical consequences if done within their territory or a region under their authority, and the operation of wet markets and wildlife farming must be considered as potential ultra-hazardous transboundary harm under the same.

Means of resolution: Judicial and non-Judicial

The International Court of Justice (ICJ) has the jurisdiction to adjudicate matters or disputes concerning International law which including violation of treaties/conventions and customary International Law. As per Article 75 of the WHO Constitution, if a dispute is not resolved by negotiation or by the Health Assembly, the same could be sent to the ICJ for adjudication and the ICJ has jurisdiction under Article 36 to conduct such proceedings against China.

This, however, might face some some complexities, since China has refused to ratify the compulsory jurisdiction of the ICJ.

However, the ICJ has powers under Article 41 to pass provisional measures in the interest of upholding the rights of parties to the dispute. Notice of such measures is given to the parties and the Security Council until a final decision is passed on the dispute. Another problem may arise as such measures may not be allowed to pass by the Security Council, as China is one of the members and has the right to exercise its veto power. In such a situation, the ICJ could perhaps use its powers of Advisory Jurisdiction to hold China responsible. The advantage of invoking this power of the ICJ is that it requires no consent of any State. However, this only has a moral authority and is not legally binding.

If the above suggested judicial means fail, the States could collectively resort to non-judicial means such as negotiation, good offices, mediation, conciliation, arbitration, and reference to the Directorate General, as provided for in the IHR.

It is also seen that over the years the dispute settlement mechanism of the World Trade Organization (WTO) has been used to resolve disputes beyond issues of trade. A case could be brought at the WTO against China for the COVID-19 outbreak. Additionally, States could also impose economic sanctions against China to pressurise China into accepting the demands of several affected States for compensation. Those countries that have signed Bilateral Investment Treaties (BITs) with China could also initiate the dispute resolution mechanisms provided for in such treaties.

China cannot claim any immunity from private suits initiated against it in any country, as over the years it has been observed that the claim of sovereign immunity does not cover immunity for the commercial functions of the State. Further, under Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Property, a State can only enjoy immunity in a situation of armed conflict and it enjoys no immunity when its actions/omissions leads to death or economic injury in the State where the claimant seeking compensation. This compensation can be computed based on assessments that were made in the Trail Smelter (USA v. Canada) case It is essential to acknowledge the extraordinary circumstances and prevent immunity (if any) claims made by PRC to avoid impunity for the mismanagement of the health crisis.

In India, any individual can make a claim under the jurisdiction of the Indian courts as per Section 9 and 86 under the Civil Procedure Code (CPC). This means that many corporations, small and medium businesses, and individuals can file a suit against the Chinese government due to the economic losses suffered by them, with the only condition that needs to be met being that there was sanctions received for the same by the Union Government of India. Even if China claimed immunity, it would be considered impliedly waived off due to its negligent actions in handling the largely containable epidemic. Further, with respect to Indian suits filed against the PRC, the principle of ‘double actionability’ according to India’s conflict of rules would be applicable, whereby the action sued against is actionable in India and China. The cause of action in India would be based on tortious liability (acts or omissions), as stated above, and proving a causal link that it was due to the negligent behaviour (breach of duty) of the Chinese government that losses were suffered. What would remain difficult, would be unambiguously proving the causal link between the breach of duty of China and injury (losses) caused as the evidence to prove the same is disputed, limited, and in-comprehensive.

Enforcing the Responsibility of WHO

Even though, China did not adhere to the object and purpose of the WHO Constitution and further violated Article 37, the Secretariat of the WHO should have upheld their position of responsibility. But it can be evidenced that the entire Secretariat of the WHO failed to do so by seeking or receiving instructions from any government or any authority external to the Organization as it did not compel China to observe the exclusive international character of the Director-General and the staff of WHO and did not refrain from getting influenced by the Chinese government. Additionally, there is no evidence suggesting that the WHO exercised its mandate under Article 10 of the IHR to seek verification from China regarding unofficial reports of pathogenic microorganisms, which also requires the State to provide timely and clear facts within 24 hours of the request and to participate in collective assessments of the risks present.

Further, it can be said that the WHO’s Director-General Dr. Tedros Ghebreyesus did not openly chastise China for its delay in responding to the situation and informing the WHO on its health emergency, instead it congratulated China for extraordinary measures taken by Chine without considering the socio-economic consequences the country would face because of these measures. WHO is maintaining a balancing act by pervading a false sense of security about the emerging health crisis. This may show the complicity of the WHO since China happens to be one of its most powerful and generous member, especially after US decided to cut back funding to WHO, that is facing lack of monetary resources. Taking harsh measures against china may also be a point of trepidation of the WHO as it may put an end to whatever possible global cooperation we seek to send investigative missions to China, hence, the WHO, continues to maintain a friendship with China and focuses on trying to limit transmission as it can only focus on slowing down the outbreak.

Conclusion

The pandemic has disrupted day-to-day functioning of several sectors of the economy, wreaking havoc not only on the health and safety of the people, but also on the economy and means of livelihood of many. Even though the conventions are not strong to legally enforce, the world community must use diplomatic pressure to hold China responsible for breach of customary law. This is vital to uphold the principles of accountability and responsibility of member States and International Organizations and set a precedent for deterring more cases of this nature in the future.

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Tasha Bluewin Joseph is a student at Jindal Global Law School. She can be reached here.

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Photo Credits: Betsy Joles/API