The COVID-19 outbreak has brought the world to a standstill. With factories shut, economies stagnant and tremendous loss of life, this pandemic has brought us at crossroads to decide between globalization and isolation. With the impact of COVID-19 not solely confined to humans, its effect also hovers over the growth of global markets with as much as $9 trillion being expected to be knocked off from the global GDP over the next two years. The blame of imputing the responsibility of this virus on China can be traced as far back as March. Although China has rejected the blame and insisted on its transparency, the allegations didn’t take long to turn into a political turmoil. However, the question that presents itself is whether there remains recourse apart from the use of diplomatic tactics. If so, an equally important issue accompanying the finding of violations of certain international obligations is whether the court at Hague can assume jurisdiction of the same.
International Health Regulations and Obligations
The International Health Regulations (“IHR”) in Article 6 stipulate that every state party is under an obligation to assess any events occurring within its territory which may constitute a public health emergency and shall notify the WHO of any findings within 24 hours of the assessment of ‘public health information’. Article 7 enunciates that if a state party has evidence of any such unusual incidents which may transcend into a ‘public health emergency’, it shall provide the same evidence to WHO and shall be bound by all the provisions of Article 6, i.e., to report the findings within 24 hours.
The first case of COVID-19 was found on November 17, 2019, and since then, roughly between one and five cases were being reported on a daily basis. It has also been said that a doctor had reported the Chinese health authorities of the presence of the novel coronavirus on December 27th and yet, it was only after four days, i.e., on 31st of December, 2019 that the WHO – China Center was apprised of the situation. Thus, if one is to rely on the data given by the South China Morning Post, it can be construed that China was well aware of the outspread a month before the same was reported to WHO.
However, there is still the argument that the doctors were not aware or could not have gauged the dangers of the virus till the cases had risen. Yet, there lies no defense for not having carried out an assessment, as mandated by Article 6 of the IHR, even after being informed of the presence of a novel coronavirus on 27th December, 2019. On this basis, it can reasonably be concluded that in spite of having evidence and being informed about the presence of coronavirus on December 27th, 2019, China failed to notify the WHO within 24 hours and violated Articles 6 and 7 of IHR. This non-conformity with Article 7 of IHR also attracted non-compliance with Article 65 of the Constitution of WHO which mandates every member state to provide statistical and epidemiological reports in a manner as decided by the Health Assembly.
ICESCR and the Obligation to not Censor Information
General Comment 14 of the Committee On Economic, Social And Cultural Rights has expanded the scope of Article 12, i.e., the ‘right to life’ and has stipulated a specific obligation on states to not censor, withhold or intentionally misrepresent health-related information. China, having ratified the treaty, without expressing any reservations towards Article 12 was bound to not only not censor, but also not withhold or intentionally misrepresent any health related information, failing which would attract a violation of the treaty.
However, recordings of internal meetings of WHO have confirmed that China hid the genome sequence of the virus for more than a week and stalled the delivery of data pertinent to the spread of virus in the month of January. Instead, a prompt action could have curbed the virus from becoming a global pandemic. The withholding and under-reporting of cases can also be traced from the fact that although only 44 cases had been reported by China on 3rd January, a South China Morning Post claimed the total number of cases to be at around 381 on the first day of 2020.
Thereafter, even Reporters-Sans-Frontiers, the agency behind the ‘World Press Freedom Index’ has argued that had the Chinese Press been free, the Coronavirus would not have been a pandemic. It further explained that had there not been a delay in closing the Huanan seafood market, had the whistleblowers not been silenced and had the social media platforms not been censored in China, the information of the outbreak would have reached other countries earlier and the number of deaths could’ve been reduced.
Chinese Liability in a Court of Law
As far as the violations of IHR are concerned, Article 75 of the Constitution of WHO, dealing with interpretation of the statute of International Court of Justice (“ICJ”) is pertinent. It states that whenever there arise any disputes concerning the application or interpretation of the constitution of WHO, the same shall be referred to the ICJ unless otherwise decided by the parties, or if the same is not resolved by negotiation or by the health assembly. In other words, the violation of Article 64 of the Constitution of WHO and Article 7 of IHR can be referred to the ICJ only if the Health Assembly passes a resolution to that effect.
Further, Article 65(a) of the Constitution of WHO states that for any important decision to be taken by the Health Assembly, an affirmation shall be required of two-thirds majority of the members present and voting. The subsequent provision of Article 65(b) elucidates that the determination of an additional category of question to be decided by a two-thirds majority, shall first have to be made by a majority of the members present and voting. Therefore, it can be deduced that the question of China’s non-compliance shall have to stand two tests: first, an affirmation by the majority, and second being an affirmation by two-thirds of the majority present and voting. Only then can the ICJ take cognizance of this matter.
Considering the global backlash against China, a high probability exists of the emergence of an anti-China lobby whose vote shall be the decisive factor at the Health Assembly. Moreover, with the tussle between US and China for global order, the allies of the USA are expected to take a concrete stand and add to the anti-China stance. Therefore, although herculean, there certainly exists a possibility of getting a majority or a two-thirds to vote at the Health Assembly.
An Advisory Opinion
An alternative remedy is to get an advisory opinion from ICJ over the liability of China for non-compliance with provisions of international law. Although an advisory opinion shall have no binding value, it shall certainly clear the ambiguity surrounding China’s liability and shall also act as a precedent with regards to state responsibility in a ‘public health emergency’.
Article 95 of the UN Charter enunciates that the General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. This decision being taken in the Security Council shall always remain an arduous task as having a veto, China shall be able to overturn any decision so achieved. However, the case would be different in the UNGA. The structure of UNGA, as reflected in Article 18, is very similar to that of the WHO and also requires an affirmation by two-thirds of the members present and voting to refer the matter for an advisory opinion to the ICJ. Also, an absence of veto ensures that every vote shall be on an equal footing and therefore, it is highly probable that an anti-China lobby may act as a decisive factor.
However, it is pertinent to note that advisory opinions generally do not have binding value. Further, any decision of the ICJ, even if delivered in its contentious jurisdiction, can be enforced only by recourse to the UNSC – where China’s veto would halt any possible action in that regard. Therefore, the advisory opinion can at best chart out the responsibilities of China but can certainly not compel it to compensate other countries.
Irrespective of the origin of COVID-19, violations of international law can certainly be imputed against China and can also be referred to the International Court of Justice for a final say. However, the issue that remains is whether or not it will be wise to take a legal action?
At issue are hundreds of loans that China has issued to less developed countries which have escaped public scrutiny and a study further shows that about 50 countries owe more than 15% of their GDP to China and therefore these countries shall have to risk their finances if they are to take an anti-China stand. Therefore, taking steps against China may prove more costly to several countries as opposed to importing vaccines. Thus, spontaneous and extemporaneous lawsuits would only add to the crisis and diplomatic attempts to find a middle-ground are the need of the hour. Where particularly, any move taken, though collectively, may have long-term repercussions like worsening of trade relations, shallowing of diplomatic ties, imposition of unprecedented taxes, and also carry a potential risk of witnessing a world-debt crisis.
Rajas Salpekar is a second year law student at National Law University, Nagpur.
Image: The Economist.