Has China complied with its International Law obligations with regard to the COVID19 Pandemic?

Introduction

There is a situation of panic and unrest in the world which is the result of the COVID19 Pandemic. The Outbreak of COVID19 has led to unfortunate consequences (including but not limited to death, illness, economic hardship and recession etc.) throughout the world due to inaction and negligence on the part of the People’s Republic of China (hereinafter referred to as “China”). This article aims to describe how the inaction of China has violated the International Law Obligations conferred upon it, as a result of which the whole world has suffered irreparable damages.

The virus has been named “SARS-CoV-2” (hereinafter referred to as the “Virus”) and the disease it causes has been named “Coronavirus Disease 2019” (herein referred to as the “COVID-19”). COVID 19 was declared a Pandemic by the World Health Organization (hereinafter referred to as “WHO”) on the 11^th March 2020, which has now spread to at least 205 Countries and Territories. Cases of people affected due to this Virus as on 4^th April 2020 were 1,154,169 and a total of 61,681 people have died due to the same[1].

This Virus traces its initial victim back to 17^th November2019, which is at least a month earlier than the noted cases of the virus in Wuhan, China reported at the end of December 2019[2]. The reality is that China concealed that it was dealing with this Virus long before the world learnt about it in December 2019[3]. It was only when Dr. Li Wenliang sent out a warning to fellow medics on 30^th December 2019, warning them about a contagious virus and further advising them to wear protective clothing[4]. However, Dr. Li Wenliang was summoned by the Chinese authorities to the Public Security Bureau where he was made to sign a letter, which accused him of making false comments that had disturbed the social order. Dr. Li Wenliang succumbed to the virus which he alerted about, as a result of which the Chinese authorities had to issue a formal apology to the family of the doctor.

The first patient with symptoms of “pneumonia like illness” was reported on 1^st December 2019 and this patient allegedly had exposure to Wuhan Seafood Wholesale Market in China. An interesting thing to note is that after 5 days, the wife of this patient who had, no known history of exposure to the market also presented the same symptoms and was hospitalized in an isolation ward[5]. By 6^th January 2020, 59 people were sick and demonstrating “pneumonia like illness” in Wuhan[6]. On 13^th January 2020, the first case of the Virus was reported outside China in Thailand involving a 61 year old woman, who had visited Wuhan, China. It was not until 20 January 2020, that the head of the team from the China Health Commission investigating the virus, confirmed that two cases of infection in China’s Guangdong province had been caused by “human to human transmission and medical staff had been affected”.  Up until then, the Chinese Health Commission kept claiming on numerous occasions that there was “no clear evidence of human to human transfer” and that the Virus was “Preventable” and “Curable”. It was only on 22 January 2020 that the WHO after conducting a field visit to Wuhan concluded that “deployment of the new test kit by Chinese authorities suggest that human to human transmission is taking place in Wuhan”. It was only after the WHO intervention, the first steps of quarantine of Wuhan were taken on 23^rd January 2020. By this time a significant number of Chinese citizens have already travelled abroad as “Asymptomatic, Oblivious carriers”.[7]

Violation of International Laws by China

Universal Declaration of Human Rights [“UDHR][8]: The Declaration was proclaimed by the United Nations General Assembly in Paris on 10^th December 1948, as a common standard of achievements for all people and all nations. The Universal Declaration of Human Rights recognizes fundamental rights and freedoms for all people living in any nation. Article 25 (1) of UDHR provides that “Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care and necessary social services, and right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. Significant information was withheld by the Chinese authorities, which ultimately led to the outbreak of COVID-19 and the same violates the right to health provided under this article. Besides China also did not sufficiently contain and curb the travelling of the infected person(s) from China to other parts of the world, thus further exacerbating the situation.

International Covenant of Economic, Social and Cultural Rights (ICESCR)[9]: ICESCR came into force on 3^rd January 1976 and the same is a multilateral treaty adopted by the UN, committing its parties to work towards the grant of economic, social and cultural rights including the rights to education, fair and just conditions of work, an adequate standard of living, the highest attainable standard of health and social security. Article 12 of the ICESCR,  provides that each state party to the covenant shall take necessary steps for the prevention, treatment and control of epidemic, endemic, occupational and other diseases and creation of conditions which would ensure to all; medical service and medical attention in the event of sickness. The Chinese government was required to take steps to prevent, treat and control the virus and was additionally required to prepare a proper mechanism to deal with the virus. However, the Chinese authorities’ despite prima facie evidence of the highly contagious nature of the Virus, issued no health warnings. Moreover, no proper mechanism was put in place to curb this menace rather false assurances were given by the Chinese Authorities that it was not contagious and was preventable and curable.

International Health Regulations 2005 (IHR)[10]: IHR is a legally binding instrument of International Law that requires countries to work together to save lives and livelihoods endangered by the international spread of diseases, other health risks and avoid unnecessary interference with International Trade and Travel. It represents an agreement between 196 countries including all WHO member states to work together for Global Health Security[11]. As per IHR, each state party is required to establish a National Focal Point and the authority responsible within its respective jurisdiction for the implementation of health measures under the Regulations.

The Ministry of Health of China is designated as the National Focal Point in terms of the IHR. As per Article 6 and 7 of these Regulations, Ministry of Health of China was required to provide all the relevant information to WHO of all events which may constitute a public health emergency of International Concern, which it miserably failed to do. It also failed to take assistance from experts at WHO in this regard. Moreover, China repeatedly rejected offers of an epidemic investigation by the Centers for Disease Control being the leading National Public Health Institute of the United States and the WHO in January 2020[12]. This has left WHO remediless to carry out its functions as envisaged under Article 9 of the Regulations under which WHO could have assessed the reports provided by China according to established epidemiological principles and then communicated information on the event to China. Additionally, the Chinese officials were not sending the details that were required by the WHO to analyze the Virus[13], on the contrary China misled WHO and other Countries into thinking that the Virus was not as catastrophic as it was, as a result of which the entire world was ill-prepared when the Virus spread throughout the globe. As per Article 3, the Regulations are to be implemented with full respect for the dignity, human rights and fundamental freedoms of persons as well as be guided by the Charter of the United National and the Constitution of the WHO with the goal of protection of people from the international spread of disease. The very conduct of China shows a blatant disregard of the same.

Responsibility of States for Internationally Wrongful Acts, 2001[14]: The International Law Commission at its fifty-third session in 2001 adopted and submitted to the United Nations General Assembly the ‘Responsibility of States for Internationally Wrongful Acts, 2001’. The laws of State Responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation and they have already been cited by the International Court of Justice in numerous cases and have generally been well received. In my view, the action of China will squarely fall within the purview of Article 2 of the Act. Further, Article 2 of the Act specifies the conditions required to establish the existence of an internationally wrongful act of the State. Two elements are identified in this regard. First, the conduct in question must be attributable to the State under International Law. Secondly, for responsibility to attach to the act of the State, the conduct must constitute a breach of an International Legal Obligation in force for that State at that time. By way of omission and inaction in dealing with the virus at the inception of the outbreak, China has violated this Article. It has breached the obligation created upon it by not informing and by not providing the relevant information to the WHO about the Virus, which is a breach of the international obligations envisaged under the International Health Regulations as mentioned above, which cast a responsibility on the Chinese Authorities to act diligently in the event of a suspected outbreak of a medical emergency. China’s actions/ inactions will also fall within the purview of Article 4 of the Act. Under this Article, certain acts and conduct of an organ of the State or individuals or entities may be attributed to the State in International Law. It is submitted that the way in which the Chinese Authorities dealt with the virus and how the Doctors and anyone having first-hand knowledge or information about the virus were treated and stopped from speaking publicly about the same is in clear violation of this Article. China’s action/inaction also comes under the purview of Article 14(3).  Article 14(3) states that; “The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” The inaction of China by not carrying out its obligations under the IHR is a breach as contemplated under Article 14(3).  China only informed WHO on 14^th February 2020[15] about the clinical features, outcomes, laboratory and radiologic findings of 44,672 laboratory-confirmed cases of the Virus constituting a delay of at least 6 weeks.

Conclusion

The Virus has had far-reaching consequences on the whole world with people dying and the impact on the economies as a whole is far greater and catastrophic. In my opinion, China has miserably failed to adhere to its International law obligations as enumerated hereinabove. The social and economic crises, which are looming amidst the countries is a result of the actions/ inactions of the Chinese Authorities. In my view, China ought to be called upon to pay damages and reparations. One possible way for the same is by the individual(s) filing complaints about the violations of human rights before the United Nations Human Rights Council. The Human Rights Council is the main inter-governmental body within the United Nations system responsible for addressing situations of human rights violations.[16]An individual complaint has already been filed by Dr. Adish Aggarwala, before the United Nations Human Rights Council, Geneva seeking compensation for the international community and the member states of the United Nations[17]. Alternatively, State(s) can also invoke the jurisdiction of the International Court of Justice and call upon China to pay compensation/ reparations for the damages caused to them due to the outbreak of Virus.[18]

What remains to be seen is whether any State will muster the courage to seek redressal and even if some State does muster the courage, will China be held guilty. Additionally, even if China is held guilty will it comply with any such verdict. China has recently rejected a ruling against it passed by the International Court of Justice in an international legal case with the Philippines over strategic reefs and atolls upon which Beijing claims would give it control over disputed waters of South China Sea and in return warned of a possible military escalation[19]. China being a permanent member of the United Nations Security Council enjoys the power to veto any action of the Security Council. Additionally, it is a leading manufacturer of goods and services and the second-largest economy in the world and is thus, likely to take undue advantage of its power.

Views are of the Author only.

Author:

Pratyaksh Sharma {Advocate)

ABOUT THE AUTHOR

Pratyaksh Sharma Pratyaksh is an associate at Vedya Partners, he is a Civil Litigation Lawyer, who regularly appears before various forums in Delhi ranging from the Hon’ble Supreme Court of India, the Hon’ble High Court of Delhi, Sessions and District Courts, TDSAT and NCDRC.