The COVID-19 pandemic has overtaken the world by deathly awe. With a whopping 1,015,667 confirmed cases, 53,200 deaths and around 204 countries affected as on April 3, 2020, the virus rages across the world as the governments, public health organisations and WHO scramble to enhance their response to deal with the challenge. As the epidemiological situation changes dramatically, we need to revisit the basic principles of International law and assess the role of country of origin. The virus had its origin in Wuhan’s Huanan Seafood Wholesale Markets and was kept under wraps for months by China.
A Timeline of Neglect
The first case of the virus was reported on December 10, 2019. The timeline shows that China’s cover-up of the virus and delay in taking measures to contain it lasted around three weeks. The world is all too familiar with Wuhan’s Dr. Li Wenliang, who forewarned the world about the SARS-like virus on December 30th and how he was silenced by the government. Later, his death from the virus crystallised the anger and frustration over the cover-up. The Chinese attempt to suppress information regarding the virus has inflicted incalculable damage and stymied global efforts to fight it.
US’ National Security Adviser, Robert O’Brien remarked on 15th March, 2020 that the cover up by China “…probably cost the world community two months to respond. And…. if we had those…..I think we could have dramatically curtailed what happened in China and what is now happening across the world.”
Questions on responsibility and reparations ought to arise. With a disaster of this scale and the ever-increasing loss of lives, one needs to look at the International Framework which can be used to make China pay for its negligence and the action can, thus, act as a deterrent for the States in future.
International Legal Framework for fixing Responsibility
The Legal framework for determining responsibility can be traced to Law of Responsibility. Article 1 of the Draft Articles on State Responsibility adopted by the International Law Commission in 2001 provides that every internationally wrongful act of the State entails State responsibility. Article 2 specifies two conditions required to establish the existence of an internationally wrongful act. Firstly, the conduct in question must be attributable to the State under International law. Secondly, for the responsibility to be affixed as an act of the State, the conduct must constitute a breach of an international legal obligation in force for that State at that time. However, a State can also be held responsible to the extent it fails to take necessary measures to prevent harm, imposing a standard of due diligence. The ICJ, in the Corfu Channel case, held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn other States of their presence.
Article 31 contains obligations to make reparations. Consequent upon the commission of wrongful act, there is an obligation on the part of the State to make reparations for the damages. Thus, China is liable to make reparations for its failure to inform the world and WHO.
China and International Health Regulations
The primary international mechanism for regulating public health diseases is the International Health Regulations of 2005 established under the auspices of WHO to which China is also a party. Considered the sole binding legal instrument for controlling the spread of pandemic, the regulations “prevent, protect against, control and provide a public health response to the international spread of disease . . . .”
The IHR places obligations on Nation-States to provide adequate information to the World Health Organisation (WHO) to prevent the spread of pandemics. Arts. 6 and 7 of IHR (2005) required China to inform the WHO within 24 hours of determining the nature of the virus, using a prescribed checklist, as well as any measure it had deployed to deal with its outbreak. China, unfortunately, failed its obligations.
China’s delays and attempts at cover-up violate Human Rights Treaties
International Covenant on Economic Social and Cultural Rights (ICESCR) provides the most comprehensive protection regarding Right to Health of individuals. Article 12 of the Covenant provides that ‘States Parties…..recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Article 12(2) enumerates the steps to be undertaken by States to achieve full realization of this right.
According to General Comment 14 of Committee on Economic Social and Cultural rights, which enforces the Treaty, violations of the Right to Health can occur through direct action of States and through omission or failure of the States to take necessary measures arising from legal obligations. China, in this case, has clearly violated its treaty obligations under ICESCR.
Security Council and Its Role
Since Pandemics have a security dimension too, the role of Security Council in the COVID -19 fight can be streamlined to bolster the world’s response. The Security Council has, on earlier occasions, addressed public health emergencies and passed resolutions pertaining to them. In July 2000, the UN Security Council passed Resolution 1308, recognizing “the importance of a coordinated international response to the HIV/AIDS pandemic…” In September 2014, it passed yet another milestone resolution 2177, designating the Ebola outbreak in West Africa as a threat to international peace and security. It enabled Secretary General Ban-ki-moon to constitute U.N. Mission for Ebola Emergency Response (UNMEER), the first U.N. emergency mission directed at a public health crisis. In the extant matter, the role of Security Council is conspicuous by its silence.
The crux of the matter is that China owes an explanation and exemplary reparations for letting loose probably the deadliest pestilence on the entire world. However, in view of the extraordinary international position that China enjoys in the world community, being a permanent member of the Security Council, a dominant economic power, a number of countries already in its debt and having virtually accepted its political hegemony, it would be really intriguing to see how countries mount their claims for damages against it and how International bodies handle it.