Authors: Manini Syali and Alisha Syali*
The article analyses whether International Environmental Law can be invoked for making China liable for the COVID-19 pandemic, which is said to have its origin in the wet markets of Wuhan, and if there exists an interrelationship between Right to Health and Environment.
The world is currently witnessing an unprecedented health crisis in the form of the COVID-19 outbreak, which is said to have its origin in the wet markets of Chinese city of Wuhan, infamous for its exotic meat products widely consumed by the local populations in the name of prevailing superstitious practices. The virus which has now affected 199 countries, has resulted in a death toll of 34,000 so far. China on the other hand is on a road to recovery and has started lifting the lock downs, which for months made its population live in isolation. The question arising at this stage is whether China should be made responsible for the apocalyptic conditions it has brought before the world community, despite its previous promises to shut down its wet markets during the 2003 SARS outbreak and if International legal framework regulating Trans boundary environmental damage is appropriate to affix this liability. An attempt in this article will, thus, be made to analyse the law on Trans boundary environmental damage in the context of contagious disease transmission across sovereign borders.
Development of law on Trans boundary environmental damage
In the Trail Smelter arbitration, the world community for the first time witnessed that the concept of ‘sovereignty’ is not absolute and no nation state can be allowed to use its sovereign territory in such a manner so as to cause harm to another nation state.The tribunal in this case laid down the principle in the following words “under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”
The concept, however, took a concrete shape only through the Principle 21 of the Stockholm Declaration, which went on to impose responsibility upon nation States for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
A major criticism against the primary International environmental instruments, namely the Stockholm Declaration and the Rio Declaration, has been that they remain in the form of soft law norms and never actually had any strong enforcement mechanism behind them. It would, however, not be wrong to state that this proposition does not hold good any longer and International jurisprudence has also proved the contrary. A good example of the same is the landmark Nuclear Weapons Advisory Opinion of the International Court of Justice (ICJ), in which ‘the due diligence obligations’ of nation states in Trans boundary contexts were upheld by the World Court. The Court took note of the looming threats which nuclear weapons pose on the environment and went on to highlight that “environment can never be seen in abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.” The court further laid emphasis on the general obligation of States to ensure that activities within their jurisdiction and control, respect the environment of other States or of areas beyond national control and held it to be a part of the corpus of international law relating to the environment.
A similar question was also again raised before the ICJ in the case between Ecuador vs. Colombia (2008) .The incident involved spray of herbicide by Colombia in the sovereign territory of Ecuador and it was contended that Colombia has violated its obligations under international law by causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused damage to human health, property and the environment. The case, however, was settled amicably by both the parties but nonetheless raises interesting observations with respect to International responsibility of nation states to not harm the sound environmental conditions of other member nations of the world community.
Does the concept of Trans boundary Environmental damage hold application when Human Health is in a jeopardy?
Environment related rights have not been expressly incorporated in any of the Human Rights instrument existing at the International level. The International Covenant on Economic, Social and Cultural Rights (ICESCR)under Article 12 (b), has nonetheless mentioned improvement of environmental hygiene to be a precondition of Right to Health. The drafters of the Covenant with the help of this provision, thus, acknowledged the existing interrelationship between right to health and sound environmental conditions.
Furthermore, under modern day International Law, nature has never been seen in isolation and has always been interpreted in the context of socio-economic environment, artificially constructed by mankind. It is pertinent to note that both the Stockholm Conference (United Nations Conference on the Human Environment) and the Rio Conference (United Nations Conference on Environment and Development) were titled in such a manner that they remained reflective of the Human development aspects attached to them. The titles further demonstrate that these key environmental law conferences and the legal instruments, which were a by-product of them, never truly focused on nature conservation in isolation from man-kind. In fact, the two leading Environmental Conventions i.e. Convention on Bio-Diversity and United Nations Framework Convention on Climate Change (UNFCCC) look at sustainable development as a matter of concern and do not have nature conservation as their primary objective. It can thus be stated that the subject matter of international environment law is sustainable use of environment by human beings.
An analysis of the above discussed legal propositions, thus, makes it clear that the currently existing International Enviro-legal jurisprudence is sufficient to hold a nation state accountable, if a contagious disease travels across its borders and causes damage of a trans-boundary nature. The reason behind this is that there exist a requirement to exercise due diligence while undertaking any activity within the sovereign borders. Furthermore, this pre-condition to any developmental or commercial activity does not remain limited to not causing harm to the ‘natural eco-system’ and includes granting protection to human survival as well, because, the word environment under International Environmental Law,is inclusive of the man-made environment and safe and healthy living conditions of the present generation and of the generations unborn.
Therefore, for the purpose of affixing the liability of China under International Law, the legal framework governing Trans boundary environmental damage can be utilised, since, the spread of a contagious infection clearly demonstrates that there was a breach in observing due diligence obligations while undertaking commercial activities in the wet markets, which adversely impacted an important human right, namely, enjoyment of safe and healthy environment.
Both authors are writing in their personal capacity. All views expressed are personal.
* Alisha Syali is a BA LLB (H) Student at Amity Law School, Delhi.