Advaita Kapoor*

Introduction

The Covid-19 pandemic has adversely damaged economic, social and health parameters of 213 countries and territories with total deaths crossing the figure of 2 lakhs. The instinctive reaction of the affected countries has been to demand compensation from China for the losses incurred, simply because the outbreak was initiated from Wuhan in the Hubei province of China.

Amid the numerous controversial theories regarding the commencement of the fatal Coronavirus, ranging from – being transferred from an animal to it being artificially created as a weapon of bio-warfare initiated by China, it is time we determine the actual liability accrued upon China and attribute responsibility in the international expanse to States who are in fact accountable for the breach of International Law.

 

State Responsibility

After the 2002 SARS pandemic caused by China’s illegal wet market that spread across 28 Asian nation-states resulting in approximately 800 casualties, the WHO released the International Health Regulation (IHR), 2005, in pursuance of Article 21 and 22 of the WHO Constitution. These articles empower the organisation to adopt and give effect to sanitary and quarantine requirements and prescribing standards with respect to a disease. According to the purpose and scope of IHR, which is a binding instrument between State parties, an obligation is imposed upon States “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade”. Hence, it becomes WHO’s prerogative to be informed about a public health emergency of international concern most efficiently.

The Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) are particular about attributing responsibility to a State on its commission of an internationally wrongful act. In the present scenario, the allegations on China breaching Article 1 of the Biological Weapons Convention by developing, producing, stockpiling, acquiring or retaining biological weapons, can still be dismissed because of many researchers and scholars remarking that the virus has a natural origin, thus refuting any claims associated with the same. However, China cannot escape from its liability of breaching the IHR for omitting to efficiently disclose and notify accurate and detailed information of the global health crisis. Had it not been for this failure on China’s part, the grave magnitude of fatalities caused by the virus could have been curtailed.

Accordingly, China assumes international responsibility which can be established by perusing the views of the ICJ in various precedents. In Interpretation of Peace Treaties (Second Phase), the Court stated that “refusal to fulfil a treaty obligation involves international responsibility.” While bearing in mind Article 2 of ARSIWA, the PCIJ in Phosphates in Morocco case expressed the existence of international responsibility when there is an “act attributable to the State and is described as contrary to the treaty right[s] of another State.” Violating the obligations imposed by the multilateral treaty of IHR, China can sufficiently be held responsible for the breach under Article 12 of ARSIWA. Moreover, China is also responsible for violating the UDHR by “censoring or misrepresenting health information.”

 

Jurisdictional Issues

The jurisdiction of ICJ to entertain this issue has been a matter of dispute. The Court can be approached under a contentious case or an advisory opinion. Procedurally, the various injured States, through the United Nations organs, can request for an advisory opinion from the Court on the moot issue urging for expedient proceedings. However, the Achilles’ heel of advisory opinions of the ICJ is its non-binding nature and it is the requesting organ itself which has to give effect to the judgement as it deems fit. Here comes the role of the veto power accorded to China as a P5 member in the UNSC which undertakes steps to give effect to the Court’s judgement in case of its non-compliance. China can choose to exercise this power in order to not act on the judgement without facing any repercussions. China has previously set precedents of misusing its veto power in numerous occasions such as being the only country among the 15 member UNSC to block the proposal of declaring Masood Azhar as a global terrorist, who had engineered the Pulwama terror attack in India 2019, as well as vetoing the fresh elections proposed in Venezuela in 2019, which only fuels this apprehension further.

This egregious situation creates uncertainty as to how exactly liability can be attributed to China. In order to refer the dispute to the Court under its compromissory jurisdiction as per Article 36(1) of the ICJ Statute, it is essential that a treaty in force specifically provides for the dispute to be referred to the Court. In the present case, Article 75 of the WHO Constitution does provide that any dispute concerning the interpretation or application of the Constitution is to be referred to the ICJ on the failure of settlement through negotiations or by the World Health Assembly. Many are likely to wonder how China’s conduct can be one that concerns the interpretation or application of the WHO Constitution. The Vienna Convention on the Law of Treaties (VCLT) provides the general rule of interpretation of a treaty in Article 31 which says that a treaty should be interpreted in the light of its object and purpose, and the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, its preamble. The preamble of WHO Constitution embarks upon various principles including one which state “the health of all people’s is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.” Article 18 of the VCLT provides that each state is under an obligation not to defeat the object and purpose of a treaty. Further the Gabčíkovo-Nagymaros Project case has stated that “the principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.” Hence, a claim can be made that China transgressed the Preamble and object and purpose of the WHO Constitution, and this “failure to comply with its treaty obligations” constitutes an internationally wrongful act. The interpretation and application of the Constitution under Article 75 would include not just the text but also the Preamble of the Constitution enabling the States to invoke ICJ’s jurisdiction.

 

International Cooperation

The famous Hobbesian anarchy in Leviathan has described the state of nature to be a state of war, however, following the neo-liberalists approach such as that of Keohane and Martin which focused on international relations and cooperation of States for their survival, seems to be more apt in today’s setting. Article 2 of the International Covenant on Economic Social and Cultural Rights is also constructed on this very principle of international assistance and cooperation between States. In this volatile phase of a global catastrophe, this principle plays an unprecedented role. The recent resolution of UNGA on Global solidarity to fight the coronavirus disease 2019 which emphasizes on “international cooperation to contain, mitigate and defeat the pandemic” aids in establishing the non-compliance on China’s part of the principle of international cooperation, which forms a part of customary international law.

The socio-economic havoc caused can only be tackled with global collaboration of States. The unparalleled power and pressure that can be created by forming a cohesive alliance of States will be immeasurable. This global backlash, supported by trade restrictions, diplomatic and political measures, will be a step towards compelling China to negotiate on fair terms with respect to the claims made against it. Only when States work together to fight for the ramifications now, will they be able to deter the happening of a similar event in the future.

 

Conclusion

China has been facing extensive pejoration for being the source of the virus. China succeeded in rejecting Estonia’s proposal in UNSC to discuss coronavirus, however since then, the International Council of Jurists has moved the UNHRC to inquire and direct China to compensate the international community through reparations. The State of Missouri has also filed a suit against China for ‘enormous’ consequences of coronavirus ‘deceit’. Around 63 countries have backed a draft resolution led by Australia and EU to find out the source of SARS-COV2, which is vehemently resisted by China. The possibility of WHO pursuing an independent inquiry will also be influenced by the fact that after the appointment of Dr. Harsh Vardhan as the Chairperson of WHO Executive Board, three key WHO positions are represented by Indians. It is only time before the U.S. also moves against China, given that it has halted funding to WHO and has announced a withdrawal from it for its non-feasance in responding to the outbreak.

China, having a geo-political edge due to its manufacturing strength and persisting global reliance of states, can manipulate this situation in its favour as a result of its considerable recovery from the virus.  It is anticipated that China will take this global downturn to its advantage with the economic demand being redirected towards it, creation of investments and maintenance of its global supply chains. A global recession is predicted by UNCTAD with the exception of China and India. The global economy will go downhill due to the ripple effect and to act in solidarity is the only way to restore it.

* Author is a student of law at the Hidayatullah National Law University, Raipur.