This article has been authored by Ashutosh Rajput, a second-year student at Hidayutullah National Law University, Raipur.
The ongoing pandemic has led to a major public health crisis across the world. In addition to it, major economies of several nations have also been unwillingly put to rest. Though there is recent upsurge of positive outcomes in dealing with the patients and in countering the disease, its negative outcome has created a huge havoc amongst the world population. There is no dispute to the fact that the spread of COVID-19 pandemic primarily started from China. It is believed that COVID-19 is caused by the Severe Acute Respiratory Syndrome Coronavirus-2 (SARS-CoV-2) i.e. novel coronavirus. A wet market in Wuhan the city of China, named Huanan Seafood Wholesale Market is believed to be the originating source of this virus. In a wet market, live species of animals are kept for the purpose of selling in a fresh state. The first case was noted on 17th November 2019 as per the South China Morning Post and the first COVID-19 patient named Wei Guixian was admitted on 16th December 2019. Across the world, people argue that the worldwide spread of this pandemic is result of China’s incompetence to contain the spread of the virus.
As on 28th July 2020 the deadly coronavirus has already claimed more than 654k lives worldwide and it is said that coronavirus is a more deadly virus than the swine flu. Furthermore, the ongoing crisis has put the global economy to a standstill which a very serious concern. Many countries hold China accountable for this outbreak and contend that global spread of Covid-19 is due to their carelessness in tackling the virus. The United States filed a $20 trillion lawsuit against China, for recovering the economic losses caused due to Covid-19, by contending that the latter used this virus as a bioweapon. Additionally, ICJ (International Council of Jurist) also moved to the UNHRC (United Nations Human Rights Council) in order to seek compensation from China for “surreptitiously developing a biological weapon capable of mass destruction”. The complainant pointed out that it is a mystery that the virus did not spread in all the provinces of China, but it spread throughout the world. Therefore, it is prima facie clear that COVID-19 is a carefully assembled biological weapon. It has been further reported that around 5 million people left the Wuhan city before China quarantined it, which shows China’s intentional behavior.
It is worth noting that there were also several major incidences in the past where China was the epicenter of pandemic diseases. The remarkable ones are the Spanish flu, Swine flu, Hong Kong flu, and Asian flu. Moreover, after the spread of Covid-19 in the city of Wuhan, China didn’t take any constructive action. Wet markets were still functional.
The primary question which arises is that whether the People’s Republic of China can be held accountable for the spread of Covid-19? However, to see the international aspect of China’s liability, one has to look towards several legal frameworks at the international level to which China is also a signatory. One of the prominent frameworks to counter the situations like the current one is the International Health Regulation, 2005 which was adopted by the World Health Organization (WHO) to counter the then ongoing spread of the SARS epidemic in 2003 by making the member countries accountable.
Violation of the International Health Regulations, 2005 (IHR)
China has ratified IHR along with 193 other members hence China is bound by the same. As per Article 6 of the IHR, each state party has to mandatorily notify WHO, by most effective means of communication available , by way of the National IHR Focal Point, and within 24 hours of assessment of public health information. Additionally, Article 7 of the IHR states that If a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information. In such a case, the provisions of Article 6 shall apply in full.
Furthermore, China has violated Article 10 and 11 of the IHR, which propounds that the state party has to divulge all the data concerning the public health emergency of international concern with WHO so that other nations can take precautionary measures in no time. In furtherance of it, Article 42 of the IHR states that the state party should take all the necessary health measures in a transparent and non-discriminatory manner.
The liability of China increases manifold as firstly, they didn’t adhere to the said IHR rules and secondly, they didn’t inform the same to the WHO and media. Further, China misguided other nations by contending that Covid-19 could not be transmitted from one person to another. China’s contention made it difficult for other nations to properly prepare to counter the outbreak of Covid-19 which has resulted into a major health crisis today.
Moreover, a Chinese doctor Li Wenliang who worked in Wuhan Central Hospital strived to warn the government about this deadly virus, but subsequently, he was accused of making false statements and disturbing the public order. Interestingly, as on 31st December 2019 around 226 cases were registered but the medical authorities, again and again, refrained from announcing an outbreak thereby violating several provisions of the IHR.
China disregarded provisions of the International Criminal Court (ICC)
The Chinese authorities were negligent in regulating the food market, more particularly the Wuhan food market. Even though there was a previous outbreak named SARS (Severe Acute Respiratory Syndrome) which killed nearly 800 people, the Chinese authorities didn’t take adequate steps to prevent any further outbreak rather they kept being negligent. By considering the present scenario it can clearly be concluded that China’s intentional inhuman act caused a great suffering to the people across the globe. There is a prima facie violation of Article 7(1)(k) of the Rome Statute of the ICC. The provision states that the crime against humanity will be said to have against a civilized population when done knowingly which also pertains to “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Moreover, the government didn’t restrict the movement or imposed lockdown despite the rise in the number of cases. Rather two big events were organized i.e. Communist Party Meeting and the celebration of the Lunar New Spring Festival which clearly indicates negligence of China in controlling or preventing the transmission of Covid-19. A study shows that, had the Chinese authorities acted three weeks earlier than they did, the cases of COVID-19 could have been reduced by upto 95%.
Violation of the WHO’s constitution
China violated various provision of the WHO constitution by not providing the correct figure of dead and infectious patients. The provisions are Article 63 and 64 of the WHO’s Constitution which mandate every member state to communicate laws and regulations pertaining to health which has been published in the state concerned and to provide any statistical data in a manner described by the Health Assembly respectively.
Jurisdictional issue of International Court of Justice
Having concluded that China violated several legal frameworks of international established laws and in order to make China liable for such discrepancies, the matter must be referred before the ICJ. Article 75 of the WHO Constitution gives power to the state party to refer the disputes related to the infringement of the WHO Constitution to the ICJ. As far as China is concerned, throughout the history, China is backing the authority of ICJ and proceeding towards the path of resistance. However, the opinions of the ICJ are not directly enforceable, but it can conclude the clear picture of China’s liability which may subsequently lead to imposition of trade restrictions on China.
Because of the pandemic, humanity has suffered a lot and is still suffering from the damages thus caused. China’s claim for force majeure event ought not to be considered as they were negligent in handling this deadly virus even after the major outbreaks such as SARS epidemic in 2003. It is worth noting that any attempts by China to escape the rigors of the international law can lead to the destruction of several trade tie-ups with other nations. It should be further noted that though China holds a prominent place in the world politics today, it cannot be permitted to get away with the International Law.
It is clearly evident that China didn’t take prudent measures to counter the outbreak, rather they kept misinforming about the disease. Whether China pays for its mistake or not is unclear today. The issue is not as simple as it seems since it involves a heavy political angle. However, the truth remains unchanged. Whether the Covid-19 outbreak was intentional or a result of Chinese negligence, China’s role cannot be undermined. Hence, consequences must follow.