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International Law

Liability of China for Covid19 Outbreak, State Responsibility, and Jurisdictional Challenges

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As the saying goes “History repeats itself”, it is claimed that China knowingly as well as deliberately, failed to adhere to international health regulation in preventing novel Coronavirus (nConvid19). Therefore, China should be held responsible for thenConvid19 outbreak.IN 2002, SARS spread from Guangdong province of China. The SARS epidemic affected 28 nation-states by the year 2003. The total human casualty was 774 from the disease at that time. The world realized this human loss could have been avoided, had China not suppressed the happenings and vital public health information for several weeks. This ill-fated event led the World Health Organisation (WHO) to bring in the new International Health Regulation (IHR), adopted in 2005. World wide a total 1,310, 205 people have been affected so far and 72,578 have died from nConvid19 as the numbers of affected and death toll are rising exponentially. The doctors, health workers, sanitisation workers, police personnel, have been running against the time to save thousands of lives. Many scholars claimed that China’s conduct relating to nConvid19 outbreak violated IHR. And China should be held responsible for the wrongful or malafide acts before an international tribunal. This article will examine the possibility of holding China accountable for its deliberate inactions which could arguably violate the rules of IHR; can China be held responsible under general international law vis-à-vis under the rules of State responsibility; examining the possibility of taking China to an international tribunal for paying damages to countries which suffered an enormous loss in terms of human lives and economic slowdown.

Jurisdictional Challenges in International Adjudication  

Generally, international dispute adjudication is a consent-based system. This is the leading challenge international dispute adjudication confronts with. The parties must agree that the dispute between them shall be submitted and adjudicated by an international tribunal. The consent maybe given in the treaty itself which is alleged to be violated or by concluding a compromise (a special agreement between disputants by which a dispute is submitted to international adjudication).

Article 75 of the WHO Constitution refers to the International Court of Justice (ICJ) for the settlement of disputes. It provides that any question or dispute relating to interpretation and application of the Constitution shall be referred to ICJ if the same is not settled by negotiation or by Health Assembly. But the disputant parties are free to choose any mode of dispute settlement instead triggering ICJ jurisdiction. In the Armed Activities (Case Concerning Armed Activities on the Territory of the Congo 2002) case, the ICJ observed that Article 75 of the WHO Constitution recognises the Court’s jurisdiction (Para 99 of the Jurisdiction and Admissibility of the Application). The Court held that it is empowered to deal with any question or dispute relating to interpretation and application of the instrument. Thus, any dispute concerning interpretation and application of the WHO Constitution can be settled by the ICJ adhering the due procedure laid down in Article 75. Recently, the ICJ in a case (Ukraine v, Russian Federation 2019) interpreted Article 22 of CERD (Convention on the Elimination of All Forms of Racial Discrimination 1969) that it gives alternative preconditions to the Court’s jurisdiction. Fulfilling either of them would trigger Court jurisdiction. If we interpret Article 75 of the WHO Constitution as ICJ resorted to in the case between Ukraine and Russia, the State(s) only has to satisfy negotiation condition. It does not need to satisfy World Health Assembly.

WHO Constitution contains the framework establishing the organisation, it includes the object and purpose, membership institutional structure and functions. Since it lacks substantive obligations concerning rules and regulations on public health. Thus, it is very much challenging how a State could frame complaint against China. In order to make a case a State needs to pose the violations rules of IHR as the question or dispute relating to interpretation and application of the WHO Constitution.

Violation of Rules of International Health Regulation and Possible Claims under WHO Constitution

IHR shall be universally applied in the global interest for the protection of the human race from the international spread of the disease. It is one of the principles incorporated under article 3 of IHR. WHO shall be guided by the principle of universal application of IHR along with adhering to other principles such as human dignity, fundamental freedom, human rights, and UN Charter.

A State is obliged under article 5of IHR to develop, strengthen, and maintain public health infrastructure which will help in detecting, monitoring, reporting, and notifying the events of the global health crises. Article 6 talks about the public health emergency of international concern (PHEIC). In the event of PHEIC, the State shall have to communicate through National IHR Focal Point, most efficiently, all the public health-related information and events taking place within its territory to the WHO within 24 hours of the assessment. The State(s) will keep WHO informed with accurate and detailed public health information, inter alia source and type of the risk, number of cases and deaths, measures taken to prevent spreading disease etc. Article 7 covers explicitly the unexpected or unusual incidents related to public health irrespective of origin or source. It imposes an obligation upon States to share public health information with WHO even the origin or the source of the disease is unknown to the State itself.

The theory of hatching nConvi19 in the laboratory of the city of Wuhan has been refuted by a group of researchers. Kristian Andersen, PhD, one of the authors of the paper, “The proximal origin of SARS-CoV-2, said “by comparing the available genome sequence data for known coronavirus strains, we can firmly determine that SARS-CoV-2 originated through the natural process.

A novel influenza-like illness was found in the body of workers and customers of the Wuhan city’s Huanan Seafood Wholesale Market in the mid-December 2019. On 30th December Li Wenliang, an ophthalmologist, at the Wuhan Central Hospital, revealed the information online. Although Wuhan public health authorities solicited information about the spreading of “pneumonia or unclear cause”, it suppressed Li Wenliang’s alarm on the nConvid19. Many medical professionals and journalists who tried to disclose information about nConvid19 were silenced and detained by the Chinese authorities. On December 31st, the Wuhan Municipal Health Commission wrongly claimed that there is no human to human transmission of nConvid19.

Furthermore, the Commission described it as seasonal flu which is preventable and controllable. Till 14th February, China waited to disclose that around 1700 healthcare workers have been found positive of nConvid19. It is more than apparent that Chinese government evidently suppressed and withheld the important public health information for almost two months. This may conclude that China intentionally as well as deliberately failed to communicate information with WHO in the event of PHEIC.

According to article 37 of the WHO Constitution, the Director-General of the WHO and the stuff shall be independent and impartial while exercising powers and functions. In order to remain independent and impartial, they shall not seek or receive instructions from any government or from any external authority. On the other hand Member States have been obliged to respect the international character of the Director-General including staff and not to influence them. An affected State could make a potential claim that China deliberately tried to influence the Director-General of the WHO and the stuff by allegedly withholding information, providing inaccurate or false information, and by not providing information in the crucial time.

Now, the difficulty ascends as to how do we link the violations of IHR with the violation of the WHO Constitution? The State could well invoke articles 21 and 22 of the WHO Constitution. Article 21 gives WHO authority to adopt regulations concerning sanitary and quarantine requirements, prescribing standards in respect to diagnostic procedures, nomenclatures with respect to disease, causes of death and public health practices etc. Article 22 talks about the procedure of coming into effect the regulations adopted by Health Assembly, rejection or reservation of the Member State to the regulation under article 21. Thus, it could appear that the dispute is one of the interpretation and application of the WHO Constitution since China’s alleged violations of rules of IHR indirectly violated articles 21 and 22 of the WHO Constitution.  Some may argue that articles 21 and 22 are not substantive rules in nature but only procedural. They are only concerned with the Health Assembly’s authority to adopt and the procedure of coming into force of IHR. Thus, there is no substantive obligations imposed upon the Member States by these two articles.

Draft Articles on State Responsibility and Accountability of China

Analysing factual circumstances, prima facie it appears that conducts of China are wrongful and violated international law. If so, then what kind of remedies are available to the States? The Draft Articles on State Responsibility of States for Internationally Wrongful Acts 2001 (Draft Articles) was adopted by the ILC at its 53rd session in 2001 and submitted to the UN General Assembly. Although the Draft Articles is not legally binding on the States, the document is authoritative and has persuasive value. The ICJ often takes recourse to the Draft Articles in interpreting international law and solving disputes between States. The reason for the high persuasive value of the Draft Articles, mainly because most of the provisions have attained the status of Customary International Law (CIL).  Draft Articles under article 1 says every internationally wrongful act of a State entails international responsibility of that State. Under Article 2, the wrongful acts are those actions or omissions which constitute breach international obligation and can be attributable to the State under international law. The conduct is attributable when a State organ commits it through the legislature, executive, and judiciary or any other functions irrespective of position it holds in the organisation of the State or character of as an organ in the central government or in a territorial unit of the State. Responsibility emanates from the local Wuhan authorities to the Chinese central government which are all the State organs whose alleged wrongful conducts could be attributable to China. Organs include any person having status in accordance with the internal law of the State. China’s alleged willful and intentional failure to share information expeditiously with WHO in the event of PHEIC in accordance with IHR constitutes breach of international obligations under article 12 of the Draft Articles. Even China is responsible for article 14 for the continuing breach of obligation. A combined reading of both articles reveals that a State is in breach of international obligation when its act or a continuing act is not in conformity with the obligation imposed on it. Legal consequences follow the international responsibility of a State. A study at the University of Southampton revealed that timely intervention one, two, or three weeks earlier in the crisis could have reduced the cases by 66%, 86%, and 95% respectively. Thus, had China intervened responsibly and timely, the number of people affected could have been reduced. The State is under obligation to make full reparation for both material and moral injury caused by its wrongful acts under article 31. The ICJ in the Corfu Chanel case (1949) held that no State might knowingly allow its territory to be used for acts contrary to the rights of the other States. Simply speaking, China is under obligation that individuals within its territory do not cause harm to the rights of the other States. The reparation shall be in the form of restitution, compensation, satisfaction, and even in the form of assurance of non-repetition of the wrongful act. Restitution as a form of reparation means, the State is responsible to re-establish the situation which existed prior to the commission of the wrongful act. If restitution is not possible or not a suitable form of reparation in a particular case, the injured State shall be entitled to compensation which will cover financially assessable damage. If both types of reparation fail to make good, the wrongful State shall make good in the form of satisfaction which may consist of an acknowledgement of breach, an expression of regret, or a formal apology.

Conclusion

Taking a State to the ICJ or any other international tribunal is a herculean task before an aggrieved State since as pointed out above that the international adjudication is consent-based. It is highly unlikely that China would submit the dispute before an international forum. The challenge is more painstaking when the perpetrator State is powerful and influential militarily and diplomatically. One must not forget that China holds permanent membership of the UN Security Council, which enables China to invoke veto power to block events once its interest is at stake. This is what P5 members of the UN Security Council often does (did) as revealed by history of UN. Even if China agrees or the ICJ finds jurisdiction over the dispute and finds China responsible for nCovid19 outbreak, the contest still be there in implementation of the judgment. The decisions rendered by the ICJ shall be obeyed willingly by the disputant parties. The UN Security Council as a custodian of world peace plays a vital role in the implementation procedure of the ICJ decisions. Article 94 provides that in case of failure or non fulfilment of the obligation under the judgment, any party may recourse to UN Security Council and the Council will take necessary steps inter alia recommendations, or measures to be taken by the disputant to enforce the judgment. Thus, as a P5 member, China has the power to block any action that the UN Security Council might take to give effect to the ICJ judgment. Another less vigorous way to hold China responsible is resorting to advisory jurisdiction of the ICJ. Invoking the advisory jurisdiction of the ICJ does not need consent from the disputant parties. Under Article 96 of the UN Charter UN General Assembly, UN Security Council, other organs of the UN and specialised agencies that maybe authorised by the UN General Assembly may seek advisory opinions of the ICJ on any legal question or any legal question arising within the scope of their activities (for other UN organs and specialized agencies). The problem with the advisory opinion of the ICJ is, it lacks binding authority. Thus it leaves the enforcement of the decision on the disputant States and the UN General Assembly good faith and civilized behaviour.

Swargodeep Sarkar studied Law at the University of Calcutta & holds a Master in international law & organisations from Tamil Nadu Dr. Ambedkar Law University, Chennai, India. Currently, he is a PhD candidate in international law at the Indian Institution of Technology, Kharagpur. His research area includes.public international law, international investment law, peaceful settlement of international dispute.

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International Law

Transition of Balance of Power from Unipolar to Multipolar World Order

Fatima Arif

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The international system may be described as a complex system of social, scientific, political, military and technological systems. This dynamic structure is very difficult to evaluate and it is even more difficult to predict its future.

The distribution of power potential in the international system defines the number of major powers and thus the international system’s polarity. The system would be multi-polar if the great powers are more than two; if they are two it would be bipolar and systems with only one great power are called unipolar.

It can be expected in the future multipolar world that the global economy does not settle with a couple of significant nations but rather with multiple nations of varying capabilities. In the limited arena of affairs pertaining to their country, each state with its particular notable qualities will have decisive say. Beyond the US, Japan, China, the EU, and India are capable of economic influence due to their advancements in technology, increasing economy, and large population base. Iran, Saudi Arabia, Venezuela, African Union countries and Brazil will have an impact, owing to their large energy reserves. Russia should have preferences for both. Because of their geostrategic location such as Pakistan, Central Asia, Ukraine and Turkey, a few nations will have some regional influence because these nations are situated on the energy routes from which energy resources would be on route to other parts of the world.

United States and the Changing World Order

There is a broad bipartisan consensus within US political leadership that the country must remain a global leader / world leading power. This assumption in its re-eminence also comes with the fundamental underpinnings that the United States will lead the world to freedom and liberty. Its third term is resolve to contain China.

It’s troubling to what extent the US continues to pursue China’s containment. The’ democracy alliance’ or the’ pivot to Asia’ are examples of US designs. China too, because of its part, diverted from the usual cautious approach and its proclaimed strategy of’ peaceful progression’ to an unambiguous stance on the South China Sea. Right now, however, the condition does not appear to come to a head-on collision anytime far. Yet the contest could bring a serious and dangerous situation to the fore. The US is not going to communicate directly with its forces on the field. There is a lot of resistance for another war at home. This doesn’t mean the US is ineffective. What we have is a hegemon with a diminishing power and a reluctance to give up his position of leadership. At the other hand, there is no other country capable of replacing it while they frequently seek to question its authority. Chinese occasional deviation from caution, and reluctance on the part of the US to yield, build a dangerous situation.

Decline of the Unipolar System

The U.S. has been the only hegemony since the end of the Cold War, but since the economic crisis of 2008 its world hegemony has been undermined. The gap in power between China and the US is diminishing. In 2011, China’s GDP contributed for around half of the US GDP. If China’s GDP continues to rise at 8.5 per cent and US GDP increases at less than 3.8 per cent, the current gap between the two forces will level out in the decade to come. Meanwhile, the economic gap between these two nations and the other major powers will continue to expand over the next ten years. In the next five years, only the US and China will spend more than $100 billion annually on defense, growing the difference in power between them and the others. Accordingly, the international structure would not be unipolar.

International Players That Can Change the International World Order In 21st Century (Analytical Approach)

Bipolar global structure collapsed by the end of the Cold War. The United States has become the sole superpower and as expressed in the new industrial order of defense, the international structure has become unipolar. The major powers of the global community are China, Russia, Japan and the E.U. Whether the international system can turn into a bipolar or multipolar system depends on developments in many countries and regions in technological, political, economic, and military terms. China, Russia, Japan, the EU and India have the power to change their international structure. In the last twenty-five years, China’s capacities have steadily increased in magnitudes that significantly restructure the international order. Economic prosperity for China goes hand in hand with the advancement of science and technology. It is developing expensive weapons systems that are increasingly capable compared to developed countries ‘ most advanced weapons systems. Another important determinant of the future of the international community is the relative dominance of the U.S. in science, technical, economic and military capacities compared to other major powers.

Conclusion

The position of emerging states, which influence the range and change of the international system, is very difficult to comprehend. The general outlines of what is happening with this phenomenon are becoming more evident, as transition happens under intense internal dynamic conditions and not from external factors. There is a group of candidates that can be considered growing powers, and there are rapid bursts in this phase of transition, but it is longer than expected. Under conditions of changing institutionalization a central component of these changes occurs. Yet there is also a gap in the assumptions regarding the principles of collaboration and conflict. National interests and principles are certainly the most significant in the changing world order, and these can also lead to deeply complex and frustrated bargaining situations that need to be resolved by enhanced collaboration at the state level. Joined societies dissolve, along with the old beliefs. According to different ideas of world system, that countries are not less divided, and they can constantly struggle and communicate with each other at the same time. Therefore, the future multi-polar system would be no different from the other multi-polar moments that history has seen, resulting in more chaos and unpredictability than in the current unipolar world. Nevertheless, multi-polarity does not only carry the risks involved in researching balance of power among great powers for the first time in history.

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International Law

The UN reforms are required to make it functional

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Today, the world we live in has become more unpredictable, insecure, and exposed to more vulnerability. Geopolitics is changing rapidly, new problems are often emerging, while old issues remained unresolved. Humankind is under threats and challenges; some of them might be natural disasters, like Earthquakes, Floods, Fires, Valconos, Pandemic, etc. But most of the difficulties and problems are man-made, creation of some powerful countries, the result of over-ambitions, greed, expansionism, biases and jealousy. Big and more muscular countries are keeping eyes on the natural resources of small and weaker nations, etc.

In 1945, the United Nations was established to replace the League of Nations. Because the League of Nations was unable to solve most of the problems faced by the world, unable to resolve conflicts and wars, unable to protect human lives, unable to maintain justice and equality, the failure of achieving objects, the League of Nations was dissolved, and UN was established.

The UN was established with the following four objectives:

Maintaining worldwide peace and security

Developing relations among nations

Fostering cooperation between nations in order to solve economic, social, cultural, or humanitarian international problems

Providing a forum for bringing countries together to meet the UN’s purposes and goals

UN Charter was written by very professionals and experts in their own fields. The Charter is comprehensive and based on many considerations, satisfying almost the needs of nearly everyone at that time. Considering the disaster of the Second World war, the Charter was considered a most appropriate document to address practically all concerns.

The UN has been functioning since 1945 and ready to celebrate its 75th anniversary soon. At this moment, if we look at the performance of the UN, there are many things one can mention as achievements or in the UN’s credit. No doubt, in the early days of the Establishment of the UN, the objectives achieved were rated quite well. However, over time, the UN was politicized, and some of the countries, who were a major donor to UN contribution, were using the UN and its structures to achieve their political objectives. They were misusing the UN platform to coerce some other nations or using UN umbrella to achieve political of economic goals by harming other nations. On the other hand, geopolitics became so complicated and complex that the existing structure of the UN is unable to meet the challenges of the modern world.

Just, for example, Afghan is under war for the last four decades, people are being killed in routine matters, foreign intervention caused the loss of precious lives and economic disaster to people of Afghanistan. Iraq war, Libya War, Syria war, Yemen War, the situation in Ethiopia, Burkina Faso, Venezuela, Ukraine, somewhat more complicated conflict among the U.S., Iran, Israel, and the Persian Gulf, U.S.-North Korea tussle, and Kashmir, all are remained unresolved under the current structure of the UN.

Should we remain silent spectators and keep the status quo, and let the humankind suffer more? Should we justify ourselves as helpless and let the more powerful kills more human beings? Should we remain in isolation and keep our self busy with our own interests? Should we compromise with our conscious? Should we ignore our inner voice? Should we prove ourselves as innocent and not responsible such crimes committed by someone else?

Think and thing smartly, and consider yourself in the same situation and a victim, what we should be expecting from other nations, the international community, and the UN. We must do the same thing to meet the expectations of the victims.

The UN is unable to achieve its objectives with the current structure; the reforms are inevitable. We must strengthen the UN and transform the current dysfunctional UN to a more effective UN, which should satisfy the core issues of all nations. Africa is a major continent, and facing many challenges, but have no say in the UN; there is no single country from Africa in the Security Council of the UN as a permanent member having veto power. The Muslim world, having an estimated population of two billion, every fourth person in this world is a Muslim, there are 57 independent sovereign countries as member f the UN,m but no voice in the UN, no permanent member of UNSC, no veto power, who will protect their rights and who will look after their interests. Should they remain at the mercy of the current five permanent members of the UNSC?

Some countries are rebellious to the UN; some states are defaulter of the UN, and not implementing the resolutions passed by UNSC. Some countries have bypassed the UN and imposed war or sanctions on other nations. They must be held responsible for their acts, the UN should kick such countries out of the UN, and their membership may be suspended or cancelled.

It is time to introduce, comprehensive reforms in the UN, to address all issues faced by today’s modern, complex and rather complicated world. An appropriate representation of all nations, groups, ethnicity or religion should be ensured. The UN has a heavy responsibility, deserve more budgets, more powers and needed to be strengthened further.

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International Law

Coronavirus Shaping The Contours Of The Modern World

Nageen Ashraf

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Globalization vs. Protectionism:

Globalization means the movement of ideas, products, technology, and people across borders and different cultures. It is a multi-dimensional phenomenon. It has social, cultural, economic, political and legal aspects. Globalization has made the world a global village and talks about co-operation and interdependence. Protectionism, on the other hand, is the restriction of movement of goods and products across borders to protect the national industries and economy. The major goal of protectionism is to boost up national economy, but protectionist measures can also be applied for security purposes. So, we can say that protectionists are basically anti-globalists and prefer domestic strength as compared to foreign co-operation.

Protectionism and Covid-19

Globalization has made the world so interdependent and interconnected that any economic or political change in one state creates a domino effect and influence many other states. For the pandemic, most states were initially blaming China, but as it slowly healed and the pandemic caused more devastating impacts in the western states, more fingers are pointing towards globalization. Multiple narratives are building regarding globalization where protectionists finally got a chance to prove how right they were all along.

Globalization not only played a vital role in the spread of this epidemic, it also made the economic crisis go global by affecting the supply chains. An epidemic that affected a single city in Dec, 2019, grew to become a pandemic affecting almost every state in the world through movement of people and goods. States that adopted strict measures and restricted the movement of people, have relatively less cases of corona virus as compared to other states. The worst impacts of corona virus so far can be seen in USA where New York City was initially the epicenter.

New York City is definitely one of the most crowded cities in the world where daily, thousands of people move in and out for various purposes. This could be one of the reasons of such devastating impacts of corona in NYC because the free circulation of people and goods allowed the virus to spread exponentially. On the other hand, if we talk about African continent, where most states are under developed, and the movement of people in and out of the continent is very less as compared to Europe and Americas, reported cases of corona virus are very low. As of Sep 11, 2020, in the whole continent, the highest number of corona cases is in South Africa, with a count of642k as compared to USA’s count of 6.49m. This provides evidence that movement of people played a vital role in the spread of this virus and movement of people has increased a lot since the rise of globalization.

Critiques of globalization also argue that globalization is to be blamed for an epidemic that spread across borders and will soon plunge the whole world into recession. Interdependence because of globalization has made the world more vulnerable to such situations. For instance, China is one of the biggest markets in the world that exports antibiotics and telecommunications and remains an important part of most of the global supply chains. Half of the world’s surgical masks were made by China, even before pandemic. So, when the pandemic struck Wuhan, China, the supplies from China to the rest of the world affected many states that were dependent on China, and they ran out of important pharmaceutical inputs. Even the developed states like France ran out of medical masks and had to suffer because of lack of important medical equipment. This reveals the cost of such deeply interconnected global supply chains that create a domino effect.

Is Globalization ending?

Globalization has made the world a global village and undoubtedly facilitated the free movement of people, goods, ideas, cultures, information, and technology across borders. But on the other hand, it has also played a major role in the spread of diseases and has made states vulnerable to unexpected shocks. Globalists also believe that the medical or health consequences of corona would prove less destructive if states work together instead of working separately for the vaccine, as a competition. Adopting the nationalist or isolationist approach during the pandemic would crash the international economy and further increase the tensions. As the protectionists suggest, if we’d continue to protect only our national economies and keep on putting barriers on international trade, the national recession would soon turn into a global depression, as happened in 1930’s.Timely economic recovery is only possible through global cooperation.

 I think that the threat of Covid-19 has created an extraordinary situation. Originating from Asia, and then causing millions of deaths all around the globe, the blame on globalization is legitimate. Most of the states in the world rely on their tourism revenue that has been affected badly due to corona virus. For instance, Saudi Authorities decided to cancel Hajj because of growing pandemic, and the impact on KSA’s economy would be dramatic. Similarly, Japan is one of the states that depend highly on tourism revenue from Chinese tourists and travel restrictions have caused severe losses. We have also seen how the supply chains are affected just because one of the major producers (China) was badly hit by the virus. Globalization seems to have conquered the world so there is no way that it can be avoided completely. However, after the pandemic, there might be a little change in the world order regarding high interdependency. States that were mostly dependent on China for their important supplies might try to produce the supplies on their own and prioritize their domestic industries over foreign industries because of the consequences they had to bear during the pandemic. Similarly, travel bans will surely be removed but people might hesitate to cross borders and move freely because there will be awareness regarding the risks related to free movement. So, I think that the pandemic has highlighted some backlashes in globalization, but it doesn’t mean that globalization has failed. We can say that it is fragile, despite or even because of its benefits.

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