Viability of the Liability Claim against China for the Spread of COVID-19

INTRODUCTION

In the recent past, COVID-19, a deadly disease that emerged from China, has caused havoc in the lives of many; it has displaced humankind and its activities globally. Till 31st May 2020, more than 376885 people had lost their lives due to coronavirus, and nearly 6318040 people were infected across the globe. Lately, on April 3 2020, a complaint before the United Nations Human Rights Council (hereinafter UNHRC) was jointly filed by the President of International Council of Jurists (hereinafter ICJ) and Chairman of All India Bar Association Dr. Adish C. Aggarwala. The complaint was filed against the People’s Republic of China accusing it of the violations of international obligations as provided under Article IX, Section 20 of Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violation of International Human Rights and Serious Violations of International Humanitarian Laws. The complaint sought UNHRC to direct the Government of the People’s Republic of China to adequately compensate the international community. This article seeks to assess and analyse the basis of complaints made against China and whether China should be held liable for breach of its international obligations and should make reparations for the same.

SUFFICIENCY OF EVIDENCE PRESENTED BEFORE THE COUNCIL

In the given submissions, media reports have been used to provide evidence against China’s actions. This evidence is circumstantial in nature, wherein the conclusion is traced from a series of facts. Nonetheless, the evidence provided is in direct conflict with the statements released by Chinese officials. Concerning this, in the Genocide case, the ICJ mentioned the criterion over which the probative value of such evidence will depend and an essential part of which is the source of the evidence. In this case, the evidence includes media reports from news agencies based in the USA, such as the New York Times, Washington Post, etc., which are partisan rather than neutral.

In the Island of Palmas Arbitration, it was iterated that the degree of proof of attribution required from circumstantial evidence would vary with respect to the seriousness of charges. The degree of proof required for attributing the commission of these crimes from circumstantial evidence is not met as there is no concrete evidence against China in this case, and the circumstantial evidence is solely based on reports by media outlets.

BREACH OF TREATY OBLIGATIONS

In the complaint presented before the UNHRC, China has been accused of violating its treaty obligations, which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the International Health Regulations. The analysis of violations of the given instruments has been provided below.

Universal Declaration of Human Rights

In 1948, the Universal Declaration of Human Rights (hereinafter UDHR), a common standard of attainment for all peoples and all nations, was adopted by the United Nations General Assembly (hereinafter UNGA). It sets out that fundamental human rights are to be universally protected and it was considered as a declaration marked with paramount importance as it set out that all human beings are free and equal, regardless of colour, creed, or religion.

According to the complaint, China has violated Article 25(1) of UDHR. The given article obligates a state to ensure that it does not interfere directly or indirectly with the right to health of the people. According to the complaint, China has deliberately hidden and censored information relating to the Novel Coronavirus and its COVID-19 strain.

Nonetheless, as has already been mentioned above, there is no valid source of evidence that says China has deliberately withheld important information from the international community. Moreover, direct evidence suggests that as per the genome sequencing shared by China with the international community, the trace of the virus shows its origination from wet markets. Consequently, China did not deliberately hide or censor any information. In furtherance, at the time of the UDHR’s adoption by the General Assembly in 1948, states did not consider imposition of any legal obligation through it. Even the United Nations consider the UDHR as a manifesto with primarily moral authority. This leads us to consider the fact that UDHR is a soft law. Therefore, even if media reports were considered to be true, China would not be liable for violations as UDHR does not impose any legal obligations.

International Health Regulation

In the submissions, it has been argued that there was a violation of International Health Regulations (hereinafter IHR) under Article 6 and 7 of the IHR. Article 6 of the IHR requires each state party to assess events occurring within its territory and to notify WHO within 24 hours in case of a public health emergency of international concern. Article 7 demands that a state party must provide the evidences of unexpected or unusual public health event to the WHO within the same time frame as specified in the article previous to it.

Notwithstanding that the first symptom of Coronavirus, considered as a ‘pneumonia-like illness’ by then, was discovered much before 31st December 2019, the public health impact of the event was not seen to be serious as the nature of the virus was undiscovered and very few human cases had been identified with the population at risk not vulnerable. Consequently, there was no significant risk of international spread of the virus as there was no environmental contamination of the virus. Moreover, environmental contamination has the potential to spread across international borders but the event was not in an area of intense international traffic with limited capacity for sanitary control or environmental detection. Furthermore, the nature of the virus was also undiscovered. Therefore, there lies subjectivity upon the host state in giving notification and consultation to countries that can be affected by the virus. It could be therefore said that China declared the virus as an event of a public health emergency only after fundamental examinations were completed and the state felt that it had a commitment to illuminate the requisite authorities about the infection.

In furtherance, the Annexure 2 of IHR explicitly provides that examples in Annex 2 are not binding and are for indicative guidance purposes to assist in the interpretation of the decision instrument criteria. Thus, there is no legal obligation on China to inform the requisite authorities about the unusual or unexpected event on an objective basis, but, only when China feels that the particular event may lead to an international health concern.

International Covenant on Educational, Social and Cultural Rights

In the submission, it has been alleged that China has violated Article 12 of the International Covenant on Educational, Social, and Cultural Rights (hereinafter ICESCR). ICESCR is a multilateral treaty adopted by the UNGA in 1966. Article 12 of the covenant recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. It has been claimed that China hid information about the potential outbreak of the virus from the general public as well as health authorities. It is also purported that the Chinese government has failed to create a proper mechanism to deal with the epidemic and alert the concerned authorities.

However, it must be taken into account that there is no objective criterion of determination of so and there is no hard evidence to show that China deliberately did so. According to what the immediate proof indicates, it must be noticed that China did not just share the genome sequencing to show the strain of the virus on January 10 2020, much before the infection had caused any critical damage universally. In addition, China also took preventive measures quite a while back as it exhorted all the travellers to Wuhan to maintain a social distance from contact with ‘living or dead animals, animal markets, and sick people’.

In furtherance, China did not hide any information as it informed the WHO about the virus on December 31 2019 itself and complied with the requisite international instruments. China informed the WHO as soon as it recognized the menacing nature of the virus. Therefore, China cannot be held liable for the violation of Article 12 of ICESCR.

Moreover, the complaint also sought to consider the Right to Health as a part of Customary International Law (CIL) and held China liable for its violation. But this argument does not have any basis as there is little domestic or international jurisprudence on the implementation of the right to health under CIL, and therefore right to health does not fall within the rights protected under CIL. Further, for anything to be considered as a part of CIL, the ICJ has maintained through various judgments that customary law is constituted of ‘state practice’ and ‘opinio juris’. The states which urge acceptance of the right in toto as customary law are in a clear minority, and thus there is insufficient state practice to support such a wide-ranging proposition at this date.

IS CHINA LIABLE TO MAKE REPARATORY MEASURES?

According to the complaint, China has been considered responsible for Internationally Wrongful Acts under the Responsibility of States for Internationally Wrongful Acts, 2001 (hereinafter ARSIWA). According to Article 2 of ARSIWA, an internationally wrongful act is caused when the conduct consists of an action or omission that breaches an international obligation of the state, over which, responsibility could be entailed.  However, in light of the reasons given and authorities cited above, China has not breached its international obligations and therefore, no state responsibility could be entailed.

Conclusively, China cannot be held liable to make reparations under Article 34 of ARSIWA in any form as it has not breached its international obligations, which is a precondition to make reparations.

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