Can China be held liable for the COVID-19 Global Pandemic?

Within a span of a few months, the entire mankind has been reduced to a state of disarray with the outbreak of the extremely contagious COVID-19. The panic amongst people is well-founded in light of over 24,822,800 confirmed cases, around 838,360 reported deaths, a hard-hit global economy, widening social and economic inequalities, and degrading mental health of people.

In the midst of this disarray, many conspiracy theories are doing rounds. The origin of the virus is widely considered to be Wuhan, China. Some claim that the virus originated from a lab in China and that the pandemic is a Chinese attempt to unleash bioweapons. In fact, a class-action suit has been filed in the USA seeking US$20 trillion from China for the “creation and release, accidental or otherwise, of the virus known as COVID-19 by China and its agencies”. The petition claims that China unleashed the Coronavirus as a “biological weapon in violation of China’s agreements under international law”.

On the flip-side, the Chinese allege the virus to be of foreign origin and that the inability of Western States to contain it lead to the widespread pandemic. While the blame game continues, there is a large consensus amongst the scientific community that the virus is not man-made. Assuming that the virus is not an artificial creation, Chinese government cannot be made responsible for the creation of the virus.

In fact, China stands absolved of any liability with respect to the class-action owing to the doctrine of sovereign immunity, a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. But such non-liability is neither automatic nor absolute.

According to the South China Morning Post, the first case of COVID-19 was recorded on November 17, 2019 in the Hubei province, with five new cases reported on average per day in the weeks thereafter. It is alleged that it is the mistakes of the local Chinese government that gave the disease a critical month-long head start. A study by the UK’s University of South Hampton indicated that had Chinese authorities acted three weeks earlier than they did, the geographic proliferation of the virus would have been suggestively smaller, and the number of cases would have been reduced by 95 percent.

Liability may potentially lie under the International Health Regulations (IHR). Article 6 of the IHR, in the interest of preventing domestic public health emergencies from becoming international problems, requires World Health Organisation (WHO) member States to notify the WHO of “events that may constitute a public health emergency of international concern within its territory”. China’s delay in reporting this outbreak is in violation of its obligation under the IHR and China could possibly be held liable for the same in the international regime. However, there is an evident legal lacuna to validly determine such a dispute. No relevant legal instrument or precedent elucidates on what constitutes as delay sufficient to attract the provisions of Article 6. Further, there is no threshold laid down, for the events to be of nature that necessitates immediate reporting to the WHO.

The lack of an enforcement mechanism is an additional constraint as to the applicability of these regulations, since compliance relies on the shared commitment of the States. Only soft law mechanisms such as a tarnished international image, trade restrictions, socio-economic disruption, and public outrage could flow as consequences of non-compliance. The 2009-H1N1 outbreak witnessed several potential breaches of the requisites of IHR, but no legal action arose out of the same.

An action may be brought before the International Court of Justice (ICJ) by States affected by the Chinese non-disclosure, in the capacity of injured States. However, difficulty arises with respect to jurisdiction, as it would necessitate consent of the Chinese government.

Liability may also arise under the Biological weapons Convention, 1975. Article I of the Convention prohibits States from retaining any biological agents or toxins, irrespective of their origin, of types and in quantities that cannot be justified to be for any peaceful purposes. Assuming that the origin of virus was not a Chinese laboratory, Chinese liability under this can only lie if delayed reporting is a form of retention that stands in violation of the Convention. Article VI empowers States to lodge a complaint with the United Nations Security Council (UNSC) on finding any other State to have acted in breach of its obligations deriving from the provisions of the Convention. Any State member to the Convention could bring a complaint against China for its non-disclosure.

However, each complaint must contain “all possible evidence” confirming its validity. The complaining State may not have the means to gather evidence from a foreign territory (here China). Even if the UNSC agrees to discuss a charge without satisfying itself of the above requirement, there would always be a possibility of the case not receiving proper examination due to various reasons such as political sway. UNSC is not empowered by the UN Charter to take action against violators. Only on finding that the situation created by the violation can lead to international tensions, it may recommend “appropriate procedures or methods of adjustment” to the States under the Chapter VI of the UN Charter.

Moreover, China is a permanent member of the UNSC, enjoying the veto-power. This power may be misused to protect violations of treaties. For any legal consequence to flow, there has to be an established violation, and the UNSC must decide that the requesting party had been exposed to danger as a result of the violation. Even if the two preconditions are satisfied, the only legal consequence, as per Article VII of the Convention, would be that the opposite party would be required to provide or support assistance, in accordance with the UN Charter. Moreover, such assistance would not be obligatory, but optional. The same could be refused without incurring any charge for non-compliance.

We also have Chapter VII of the UN Charter, which empowers the UNSC to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”. Considering Chinese behaviour a threat to global security and thereby a violation of Chapter VII, the UNSC is authorized to take action against China. Such an action, however, would attract limitations akin to those aforementioned.

Liability may also possibly ensue within the contours of the no-harm principle. The principle finds codification in the 2001 Draft Articles on the Prevention of Transboundary Harm. It requires States to prevent and redress significant trans-boundary harm to other States and their populations, either originating from or crossing their territory or any area under their jurisdiction/control. The obligation upon the States is not to actually prevent or stop the harm from happening, but to attempt to do so, or at least minimise the risk, to the best of their abilities. The obligations start from the moment the State has knowledge of such potential harm.

Attracting such liability again poses several practical challenges. Trans-boundary harm has never been made applicable to harm that takes the shape of a pathogen. Several global health outbreaks have ensued such as the 2000-SARS outbreak, the 2009-HIN1 breakout, etc., but none have given rise to legal action against defaulting States. One reason for the same is the unpredictability of pathogenic threats. As indicated by the H1N1 outbreak, it is often difficult to determine the origination of these pathogens and the same could be anywhere. This would make the countries reluctant to bring liability for such a trans-boundary harm and international law can only be created with the collective consent of the States.

Imposing liability entails the additional challenge of the severability of State actions. The Committee on Economic, Social and Cultural Rights (CESCR) explicates in its Comment that States are obliged to establish prevention and education programmes for behaviour-related health concerns. Countries sought to have reasonably restricted educational, professional and social activities which carry a greater risk of transmission of COVID-19. Many countries, however, despite having the time to prepare for such pandemic, did not take timely, necessary action to prevent the trans-boundary spread of the pathogen.

The International Law Commission provides in the Draft Articles on Responsibility ofStates for Internationally Wrongful Acts that reparation is required to be made only with respect to “the injury from and ascribable to the wrongful act” and not for any and all consequences “flowing from an intentionally wrongful act.” In case of countries’ failure to prepare for the pandemic on time, the liability of China ought to be separated from that of the other States. However, separating the damage that arose solely due to actions attributable to China would be difficult. This is why States find it difficult to bring liability in cases of global health outbreaks.

In the event a legal action, brought out against China by the international community, stands as legitimate, it seems to be very unlikely that any award against China shall see the light of the day and be actually enforced. For now, a relentless lockdown lies before us. But once we come out of this, the legal question of State liability might loom before us for determination.

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