A common phrase in global health literature is that “diseases know no borders. This is the same issue with the spread of covid-19 which originated in China, and caused a global meltdown on the world’s economy. Since then, “Assessing China’s culpability through international law” has been a controversial topic. This topic has been hampered by a lack of empirical evidence, and also the lack of knowledge of international law by legal researchers. Here we discussed at length, what international laws are, how they are applied, the obligation of States under international public law, how to assess the culpability of the Republic of China, Through Justification on their culpability, China’s legal obligation, Jurisdictional issues, remedies available to the aggrieved party. This article provides information about all the aforementioned, clearly and concisely. This article has critically assessed the culpability of China and otherwise, with clarification on both sides.
Covid-19 a word that barely had a meaning to us at the beginning of this year now proclaims an epoch of milestone suits, unlocking a floodgate of claims brought by activists, nations, and other disgruntled forces seeking to hold China culpable for the deaths, untoward economic hardship and global turmoil caused by the virus.
In the space of 20 years, China has taken the World through a gruesome path, twice. According to Yanzhong Huang, a global health expert specializing in China at Seton Hall University, he stated that, in 2002 and 2003, during the SARS epidemic. Which according to the World Health Organization killed 774 people worldwide,[i] patients were driven around to avoid their being seen by a visiting delegation of W.H.O experts.[ii]
Conversely, after being condemned for a sluggish reaction to SARS, China is once again facing worldwide scrutiny for its handling of the new ‘Coronavirus’. China repeated the obstruction of information that worsened the SARS crisis 18 years earlier. In the previous case, China tried to suppress the SARS epidemic, which led WHO member states to adopt the new International Health Regulations in 2005.[iii] In both cases, China and the world would have been spared thousands of unnecessary deaths had China acted forthrightly, and following its legal obligations.
Furthermore, the covid-19 pandemic has made the global economy suffer enormous setbacks: capital markets across the world have plummeted, the International Monetary Fund now propels a 3% drop in the global economy instead of the initially propelled 3.3% rise, and 25 million people are expected to join the class of unemployed individuals.[iv] Transportation, tourism, manufacturing, and energy sectors have also been badly struck by the lockdowns imposed on various countries to mitigate the crises. Nigeria is not exempted from the socio-economic problems which have to emanate from both the pandemic and measures to curb it. Many businesses have closed down due to reduced demand and inadequate cash flow; laborers and contract staff without alternatives have been left without means of livelihood. School children, many of whom are chronically undernourished, have missed up to a term’s equivalent of school time in Nigeria while families staying at home have resorted to self-vigilante tactics to prevent robbery attacks by hoodlums.
Recently, A group of Nigerian lawyers fronted by Prof. Epiphany Azinge, SAN sued the Chinese government before the Supreme Court in Nigeria for a 200 billion Naira claim. This suit might be unsuccessful because they were filed before municipal courts and are rooted in domestic law.[v] Similar suits were filed 14 suits from Several individuals, small businesses, and states.[vi] Unfortunately, this claim is like putting water inside a basket, because all states have sovereign immunity to foreign States before domestic courts.
Need I say that, given that most countries in the world have had to pay a high price during this pandemic, it is necessary to assess the culpability of China through international law, since the virus originated from Wuhan, the Republic of China. First, we must ask this pertinent question: what international law safeguards exist to prevent disease outbreaks from spreading from one region of the world to another?
CRITICAL ASSESSMENT OF CHINA’S CULPABILTY UNDER INTERNATIONAL HEALTH REGULATIONS.
The International Health Regulations (IHR), which was revised in 2005, was developed to prevent the international spread of diseases and provide a suitable response to international public health emergencies.[vii] China is one of the 194 states, a party to the 2005 International Health Regulations, which is legally binding.[viii] However, pandemics such as the 2009 H1N1 flu pandemic, the 2014 Ebola pandemic, and the ongoing Covid-19 pandemic have defied these measures. China has been accused by intelligence officials of providing false data on the Covid-19 pandemic which emerged in the Chinese city of Wuhan. “The chairman of the France-based World Medical Association said China’s figures aren’t credible”.[ix] Which, is in contravention to Article 6 of the International Health Regulations (2005). Which states: Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory following the decision instrument, as well as any health measure implemented in response to those events.[x]
Article 7 of the International Health Regulations (2005) further 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 the WHO all relevant public health information under Article 6.[xi]
In December 2019, Li Wenliang, an ophthalmologist at Wuhan Central Hospital, voiced out in an online chatroom on Dec. 30. That night, Wuhan public health authorities solicited information on the emergence of a “pneumonia of unclear cause,” but omitted Li’s discussion about SARS or a novel coronavirus. Medical practitioners who tried to disclose the emergence of the virus was suppressed or jailed.[xii]
On the 30th of December 2019, China officially informed the World Health Organization but claimed that there was no human to human transmission, but was from animals to human. This information provided to the W.H.O was false because as at that time more than one-third of those with the Covid-19 sickness have not visited the Wuhan market.[xiii] Need I say, that the Chinese government also rejected offers of the epidemic investigation until late January, without explanation,[xiv] which is a violation of Article 10 which states: When WHO receives information on an event that may constitute a public health emergency of international concern, it shall offer to collaborate with the state party concerned in assessing the potential for international disease spread.
Furthermore, they refused to send the world health organizations, information as at when due.[xv] Various, researchers and scholars in the medical field unanimously agreed that, if the Chinese government had given accurate information and taken proactive measures, Covid-19 would have been an epidemic and not a pandemic. From the foregoing, we are led to only one logical conclusion and that the Chinese government has breached Article 6, Article 7, and Article 10 of the International health regulations. This makes them Culpable under International Law.
We could also conclude, that China can not be held culpable because the arguments that China can be held are based on the allegations that China failed to inform the W.H.O about the viral outbreak (Art.6) and to provide “timely, accurate and sufficiently detailed and available public health information” about it (Art.7). Accusing that China has violated the IHR would have to navigate how the WHO has evaluated China’s performance.[xvi] The senior officials of the W.H.O have repeatedly praised China’s leadership for its “openness to share information” with the international community in January. Praising them implies that they have been cooperative in terms of communication and measures to stop the upsurge of the pandemic. Though the W.H.O is not entitled to decide how states and parties interpret the IHR, the IHR itself gives the WHO such prominence and authority that its actions in this context can by no means be ignored.[xvii]
With this line of events, we could also safely conclude that the Chinese government can not be held culpable because of the timely informing the W.H.O and also putting the measures in place to curb the spread of the disease.
According to Article 75 of the International health regulations, it provides that any dispute concerning its rules and breach of rules could itself be referred to the International Court of Justice (I.C.J) for dispute adjudication. Sadly, the international dispute adjudication is a consent-based system.[xviii] The I.C.J can only exercise its jurisdiction when a State has given its consent, which is not the case because China is one of the few countries, along with the US, which has not accepted the jurisdiction of the International Court (I.C.J), so it would always be open to the CCP — Communist Party of China to reject that court’s intervention.[xix]
CHINA’S LEGAL OBLIGATION UNDER INTERNATIONAL LAW COMMISSION
Having established that the Chinese government has wronged other member states of the W.H.O and can be held Culpable under the International Law. We have to look at the International Law Commission, which can also be known as the Draft articles to further assess the culpability of China. According to Article 1 of this law, the responsibility of a state for it’s an internationally wrongful act, it states that
“Every internationally wrongful act of a State entails the international responsibility of that State”.
This authorization rendition of the law of the state was formulated with the infusion of countries to reflect a fundamental principle of international customary law, which binds all nations.
According to Article 2 of the International Law Commission
“An act or omission qualifies to be an internationally wrongful act only when that act or the omission can be attributable to the State under international law and constitutes an international obligation of the State. It further explains a wrongful act to be an act attributable to a state or constitute a breach of an international obligation”.
Responsibility emanates from the local Wuhan authorities to the Chinese central government which are all organs of the Chinese state and their alleged wrongful conduct can be attributable to China. The Chinese government internationally refused to give accurate information, which under the international health regulation 2005, they are expected to report timely, accurate, and sufficiently detailed public health information about the events happening in its territory to the WHO. Which they failed to do, now makes them culpable under the International wrongful act which violates Article 14(3) of the International Law Commission. Which states
“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.”
Even after, knowing the situation of things they continued to violate these laws. In the case of Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania 1948). The court held that no state may knowingly allow its territory to be used for acts contrary to the rights of the other states. Sincerely speaking, the Chinese government allowed the activities that took place in its country to harm other states intentionally.
Having established that the Chinese government are can be held culpable for mishandling the Covid-19 pandemic. It is pertinent to note that the international law commission is a customary international law. This law has played little to no role in the spread of infectious disease over the long history of international health cooperation. Similarly, no proof has been found to ascertain that the causation prerequisite has been satisfied. Tedros Adhanom Ghebreyesus, W.H.O director-general, stated that China “has bought the world time” regarding the Covid-19 pandemic. By locking down the whole city for 76 days to contain the spread of the pandemic. This effort made by the Chinese government has effectively postponed the international spread of the virus.
Article 34 of the Draft Articles states that a state that “intentionally breached an international obligation is liable to full reparation for the injury caused by the internationally wrongful act. In all honesty, one thing we failed to note is that no International law or the convention contains rules requiring payment of compensation for damage to other countries associated with violations of convention rules. The reason is simple, as it was rightly stated above. The outbreak of a pandemic has no boundary, no one knows where and when the next pandemic is going to come from. Therefore, requiring a country where the pandemic started to start paying compensation involves challenging scientific, public health, and political questions.
Assessing china’s culpability through International Law revolves around basically two things. The first is that there were several allegations that, they concealed information from the general public by misrepresentation of facts and figures. Secondly, that they failed to inform the W.H.O as at when due. These two allegations made them Culpable. But following the line of events and dates which were provided by the center for disease control China and comments made by the Director-General of the W.H.O, we can also say that the allegations made against China is false and they can not be held culpable.
[ii] [New York Times 2020]: Trump slams W.H.O over coronavirus. He is not alone < https://www.google.com/amp/s/www.nytimes.com/2020/04/08/world/asia/trump-who-coronavirus-china.amp.html> Accessed on 23rd July 2020.
[iii] World Health Assembly Adopts new International health regulations < https://www.who.int/mediacentre/news/releases/2005/pr_wha03/en/> Accessed on 23rd July 2020.
[iv] The Great Lockdown: Worst Economic Downturn Since Great Depression < https://blogs.imf.org/2020/04/14/the-great-lockdown-worst-economic-downturn-since-the-great-depression/> Accessed on 23rd July 2020.
[v] In Defense of China’s Sovereign Immunity <, https://www.legalnaija.com/2020/04/in-defence-of-chinas-sovereign-immunity.html> Accessed on 23rd July 2020.
[vi] What’s in the Many Coronavirus-Related Lawsuits Against China? https://www.lawfareblog.com/whats-many-coronavirus-related-lawsuits-against-china Accessed on 23rd July 2020.
[vii] Strengthening Health Security by Implementing the International Health Regulations (2005) < https://www.who.int/ihr/publications/9789241580496/en/ > Accessed on 23rd July 2020.
[viii] International Health Regulations < https://www.who.int/health-topics/international-health-regulations#tab=tab_1> Accessed on 23rd July 2020.
[ix] Coronavirus: China hid the scale of the Outbreak — US Intelligence report < https://www.google.com/amp/s/amp.dw.com/en/coronavirus-china-hid-scale-of-outbreak-us-intelligence-report/a-52988929 > Accessed on 23rd July 2020.
[x] International health regulations 2005 < https://www.globalhealthrights.org/instrument/international-health-regulations-2005/> Accessed on 23rd July 2020.
[xii] Liability of china for the covid-19 outbreak, states responsibility and jurisdictional challenges < the https://moderndiplomacy.eu/2020/04/13/liability-of-china-for-covid19-outbreak-state-responsibility-and-jurisdictional-challenges/> Accessed on 23rd July 2020.
[xvi] Suing China for covid-19 is not taking international law seriously < https://www.google.com/amp/s/news.cgtn.com/news/2020-04-11/Suing-China-for-COVID-19-is-not-taking-international-law-seriously–PAXE13o8GA/share_amp.html> Accessed on 23rd July 2020.
[xviii] Wikipedia: Jurisdiction of International Court of Justice < https://en.m.wikipedia.org/wiki/Jurisdiction_of_the_International_Court_of_Justice#:~:text=The%20key%20principle%20is%20that, has%20no%20true%20compulsory%20jurisdiction.&text=Article%2036%20outlines%20four%20bases,contentious%20cases%20before%20the%20ICJ.> Accessed on 23rd July,2020.
[xix] Coronavirus: CCP Beware, the Lawyers Are Coming < https://bitterwinter.org/coronavirus-ccp-beware-the-lawyers-are-coming/ > Accessed on 23rd July 2020.