China and Pandemic: - An International Law Study

Author Shrasti Awasthi, University of Mumbai Law Academy

Akshay Dalvi, ILS Law College

Editor – Mohit Meena, Gujarat National Law University

Introduction: -

Whole world has been petrified by the invisible or some microscopic enemy. The disastrous outbreak of a virus with a name COVID-19 has terrified every individual all over the world. The Severe Acute Respiratory Coronavirus 2 (SARS-CoV-2) has infected nearly about 9 million people from all over the world. This outbreak has forced the countries to face the total lockdown and that has resulted in financial, economical as well mental trauma for every country. The novel coronavirus has affected the globe and changed the framework of our social, economic and professional lives. However, there has been hardly any discussion about legal accountability.

It has been a very huge debatable topic that should China be blamed for causing this outbreak to make us face this pandemic situation. Another question to be added here is about whether the virus started in laboratory or in a market. Regardless of these debates it is being discussed on large scale that whether China should be held liable or responsible for this outbreak and its accountability towards other states. Many states such as USA, Japan, South Korea, etc. have imposed economic sanctions on China. The fact that every state in this world has faced uncalculated loss due to this virus which has been a result of ignorance and incautious steps of the Government of China, should they be held liable to borne the loss.

International Law: Legal Responsibility: -

The basic principle of International Law is international co-operation. This Public International Law was formed basically to peacefully co-operate with other states and to protect the rights of every state. This co-operation is expressed by States inter-alia via mutual treaties and agreements. Among these one such document holds an unprecedented position in the realm of responsibility and accountability of States in International Law, that is the Articles on Responsibility of State for Internationally Wrongful Acts (ARSIWA)1.

The basic ingredient to attract any form of State responsibility under ARSIWA in an internationally wrongful act is committed when any state breaches the international obligations. In this case of pandemic China has said to be ignored various principles and Rule of International Law. Some of the principles are: -

1. Breach of The Precautionary Principle: -

The precautionary principles are considered as one of the basic principles of International Environmental Law2. As the name suggest, every state is equally responsible for taking precautionary measures to save the environment and protect it from any harm. Precautionary principles are applied widely to protect the environment from irreversible and dangerous threats and to prevent environmental degradation.

Furthermore, culpable ignorance is considered as the basic pillars of precautionary measures. The honest mistakes are not blameworthy, where the creation of such virus is not even close to blame about. But preventing it to spread on such a large scale should have been considered as the first duty by that state. To quote it vaguely, ‘What is blameworthy is not that one was ignorant, but that one did not make any effort to reduce the ignorance’

The first patient of the virus was on 26th December 2019. His tests were examined where it was found that it contains 87% of similarity to SARS3. This news was suppressed by China and failed to inform the world community, any global forum or its neighbours of this potential pandemic. China, without taking any measure, with 570 patients by the end of January continued with the trade and traffic, thus Breaching the needs or Preventive Precautions.

2. Breach of International Health Regulation (2005): -

The regulation was priorly introduced by WHO in 1969, that underwent various changes and was released in the year of 2005. The fundamental purpose of IHR is to prevent, protect against, control and provide a public health response to international spread of disease in ways that are commensurate with and restricted to public health risk and which avoid unnecessary interference with international traffic and trade.

Article 6 of IHR states that, it is mandatory to provide for information of any such health emergencies that can have serious implications over the world healthcare. Secondly, China refused epidemic investigation from WHO in January and from US Centers for disease control in Feb. On the other hand, China, suppressing the information of this spread breached Article 6,7 and 10 of IHR. In one research it was found that, had China acted efficiently one, two or three weeks earlier, the affected case would have been reduced.

3. No harm and Due-Diligence Principle: -

The principle of No harm and due diligence is similar to concept of vicarious liability as well as strict liability. Through general reading, it requires the State to prevent, stop and redress significant transboundary harm to other states, which are originating in that particular state. It requires at least minimize the risk.

Due diligence comes during the assessment of the State’s conduct. In general words it is the assessment of State’s conduct over a harm. As per no harm principle it is the State which has to work to minimize the risk and as per Due diligence it has to be seen that State’s conduct was reasonably expected of it while responding to harm or danger.

According to these principles China neither took preventive steps to prevent, stop or redress the outbreak nor did it take any slight measures to minimize the risk.

Blame Game: To be or Not be Sued:

Many of us blame China, alleging that its lack of transparency and delay in notifying the WHO about these events. The State undoubtedly breached the regulations and measures of IRH and ARSIWA, but the trillion-dollar question arises is that, can it be sued for compensation against the loss caused. It has to be noted that none of the existing treaties, regulations or agreements contains rules requiring the payment of compensation for damages in other countries associated with the violations of convention rules.

However, mere blaming the State for not conducting various step to prevent such an outbreak will be considered a baseless argument. Although the Organization can arguably enforce the States’ obligation to notify by acquiring the pertinent information itself, it cannot singlehandedly achieve the ultimate goal of preventing pandemics. Such objective further entails recognition of interdependence, solidarity, and collective action, with each Member State implementing health measures/responses based on the most complete, accurate, and updated information generated, consolidated, verified, and made available by WHO. Information-sharing is a vital but not the sole component of the international regulatory regime for health.

This blame game causes serious distractions from various other issues on going in the world. It was one pandemic that told us, how weak and old International Law is. The need to evolve can be clearly seen.

We are all trying to figure out how this new and insidious disease impacts our bodies, societies, and economies, and what a post-COVID-19 world and world order will look like. We can learn much from the successes and failures of China and the rest of the world dealing with COVID-19, as well as the re-opening process.

Conclusion: -

The novel corona virus has affected nearly every sector of economy, be it education, stock market, trade, etc. Every State is equally affected with this outbreak, which leads us to question should China borne the liability against this pandemic. On the other hand, can China be dragged into ICJ, demanding to make up for losses caused by this pandemic.

Contagion knows no borders. Neither it has any exceptional effects on particular caste, class, creed or religion. It was one pandemic that opened the eyes of International Law researchers that, International Law has not kept pace with the exponential growth in the inter-dependence of nations. While acts or omissions of one State have immediate and concentrated impacts on others, as witnessed in the COVID-19 pandemic, international legal systems have not simultaneously evolved to address rights and responsibilities arising from these inter-linkages between nations. Therein lies the biggest argument favouring stronger laws and a more egalitarian and binding structure of the international rule of law.

Lastly, this hard time requires patience, perseverance and co-operation among citizens as well as among the States. The effective co-operation and helping each other probably will be more effective than a mere blame game. As we all in this together, we hope that we will end this together.

References: -

1. ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts – Report of International Law Commission to General Assembly, GOAR 53rd session

2. The EU communication on precautionary principles The precautionary principle applies where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU.” – Commission of EU Committee 2000, p.13

3. The Washington Post –

4. Volkerrechts blog –

5. The Arab Weekly – Violation International Law by China –

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