Nations around the world are still battling with the COVID-19 pandemic and although there seems to be no present end in sight, efforts being put in are bound to produce results and lead to the eradication of the ravaging virus. Once the spread of the virus is curtailed and nations are able to not just flatten the curve but completely wipe out the virus, the pertinent issues of to whom responsibility should be strictly apportioned would be raised. With fingers already being pointed in the direction of the Peoples Republic of China (PRC or China) as the potential state responsible for the advent of the virus with countries like the United States, Germany, India and even Nigeria instituting claims and filing lawsuits in their domestic Federal courts, this action is however defeated by the principle of sovereign immunity, which prevents local courts from ruling on the acts of foreign governments.
However, there are possible internationally legal avenues that can be explored to hold China liable for the origin of the COVID-19 pandemic and the losses that have accrued to injured state parties as an attendant result. International Law instruments such as The International Health Regulations of 2005, Articles on the Responsibility of States for Internationally Wrongful Acts 2001, The World Health Organisation Constitution 2006 can be adopted to hold China responsible for the outbreak of the COVID-19 pandemic.
CAN CHINA BE HELD RESPONSIBLE FOR THE OUTBREAK OF THE COVID-19 PANDEMIC?
The principle of state responsibility which is grounded in the commission of an internationally wrongful act stands solidly on two pillars, that is in order for state responsibility to arise the conduct of that act must be attributable to the erring state; and constitute a breach of its international obligations. This was stated under Article 2 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ASR). Therefore for China to be held responsible for the COVID-19 pandemic, China must have committed an internationally wrongful act; the conduct of that act must also be attributable to China and must constitute a breach of its international obligations. For there to be a breach there must be a regulation guiding the international obligation to start with. In the case of the COVID-19 pandemic, the International Health Regulations of 2005 (IHR) which relates to the prevention and control of infectious diseases and provide public health response to the international spread of disease guides the activities of states as it relates to the detection of the disease; actions made to control it; and also timely information on the biology of such a disease. The IHR which was adopted by the World Health Assembly in 2005 has a universal coverage with 196 states and self-governing territories of which China is inclusive; in effect China is bound by the obligations of the IHR. Article 6 of the IHR mandates each member countries to “notify WHO, by the most efficient means of communication available, by the way of the National IHR Focal Point, and within 24 hours of assessment of public health information”. Article 7 of the IHR further stipulates that if a country “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”. These provisions lay emphasis on the need for timely and adequate information on any public health emergency to be made available to the World Health Organization (WHO) in order to enable the organisation to disseminate such data, once verified, with other countries so that they can put in place preparatory and precautionary measures as provided for by Article 11 of the IHR. Also the WHO has the responsibility to determine whether such an event constitutes a public health emergency of international concern and act accordingly in line with Article 12 of the IHR. The question that arises therefore is whether China adhered to the rules of the IHR and disseminated adequate information on the COVID-19 pandemic to the WHO within 24 hours of their assessment of the disease? The answer to this is quite subjective as the facts available as it concerns the pandemic are largely controversial. However, it is alleged that China not only failed to notify the WHO in due time, but also censored, misled and suppressed information from both the media and the WHO about the novel coronavirus and its effects. The government of China originally portrayed the COVID-19 virus as a new form of ‘Pneumonia’ that could be transferred from one human to another, which they later admitted to be otherwise. These actions cost the world a whole lot has a Southampton University epidemiological model found out that if China had behaved professionally faster by one, two, or three weeks, the cases would have decreased by 66%, 86%, and 95%, respectively. Also China has the repeated track record of being the origin for an epidemic or deadly disease with instances such as the Asian Flu, Hong Kong Flu and SARS which all had China as its epicentre and they are also known for not making useful information on the disease readily available in due time. These actions therefore make China in breach of the provisions of the IHR and in breach of their international obligations thereby making them quite responsible for the COVID-19 pandemic.
There is however the need to examine the appropriate court before which China would be brought to be held responsible for its unlawful actions. For the International Court of Justice (ICJ) to have appropriate jurisdiction over any matter there has to be a consensus between disputing parties and if this is the grounds for instituting a claim against China previous cases show that China has been resistant to the ICJ’s authority and may most likely continue to resist the ICJ’s authority. On the other hand, in order to circumvent the problem that arises with the jurisdictional issue is to invoke the provision that empowers an organisation to refer disputes to the ICJ. Article 75 of the WHO Constitution provides that “[a]ny question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court”. This jurisdictional basis has once been invoked in ICJ proceedings in the case of Armed Activities in the Territory of the Congo, ICJ Reports 2006, p.6, para. 99, where the ICJ stated that:
“The Court observes that the DRC has been a party to the WHO Constitution since 24 February 1961 and Rwanda since 7 November 1962 and that both are thus members of that organization. The Court further notes that Article 75 of the WHO Constitution provides for the Court’s jurisdiction, under the conditions laid down therein, over ‘any question or dispute concerning the interpretation or application’ of that instrument”.
Although this avenue is yet to be explored it is however a viable option that can be employed in holding China responsible for the COVID-19 pandemic. While the decisions of the ICJ are not directly enforceable, they do provide an authoritative assessment of legal liability enabling other nations and governments can synchronize their political response by way of seizure of Chinese assets or imposing trade sanctions.
There is also the need to address the issue of reparation following the responsibility of China being established. Different forms of reparation come into question depending on the International Obligation that was breached and the situation following the violation. The law recognises a viable reparation avenue such has restitution, compensation and satisfaction. However, both the reparation of restitution and compensation are practically impossible to pursue but satisfaction seems to be the most appropriate form of reparation. Satisfaction would require China to admit to having committed an internationally wrongful act or give a formal apology to all affected states.
While the world still battles with the pandemic and there is need for cooperation amongst all states to completely eradicate the virus, there is need to consider the issue of state responsibility for the outbreak of the COVID-19 pandemic. China not disseminating in due time adequate information on the COVID-19 pandemic has caused a whole lot of damage to nations world over both economically and health wise. It also acted in violation of its international obligations under the IHR and equally under the WHO Constitution. These violations lie has proper grounds through which to hold China liable for the outbreak of the COVID-19 pandemic.
Tokede Akinloluwa is a 400 level law student of the University of Benin, Edo State. He is a literary enthusiast with several poetic write ups to my name. His interest is rooted in International Law, Alternative Dispute Resolution and Criminal Law. He can be reached on firstname.lastname@example.org
Conventions and Regulations
- Articles on the Responsibility of States for Internationally Wrongful Acts 2001#
- The International Health Regulations of 2005
- The World Health Organisation Constitution 2006
- Armed Activities in the Territory of the Congo, ICJ Reports 2006
- Katja, C., “China’s Responsibility For The COVID-19 Pandemic: An International Law Perspective”  FIIA Working Paper
- Abishek, K., “Covid-19: China’s Responsibility and Possible Legal Actions” (Jurist, May 10, 2020) https://www.jurist.org/commentary/2020/05/abhishek-kumar-china-covid19-responsibility/ accessed 7 August, 2020.
- Valerio, M., “State Responsibility and COVID-19: Bringing China to the International Court of Justice?” (International Law Blog, May 15, 2020) https://www.google.com/amp/s/internationallaw.blog/2020/05/15/state-responsibility-and-covid-19-bringing-china-to-the-international-court-of-justice/amp/ accessed 7 August, 2020.
- Atiku, , “Covid-19: In Defence of China’s Sovereign Immunity” (DNL Legal and Style, April 27, 2020) https://dnllegalandstyle.com/2020/covid-19-in-defence-of-chinas-sovereign-immunity-atiku-m-jafar/ accessed 7 August,2020.