By Punsarani Jayawardhana
Since the outbreak of Covid-19 as a pandemic proliferating the number of patients, casualties and the menacing effects on global economy, China has been accused of not complying with principles of state responsibility in terms of pandemics and contagious health problems and in regard to International Health Regulations (IHR).
These accusations have primarily been raised in the United States (USA) but have been proclaimed even by other Western countries like France and its neighboring rivalries like Japan. In the event of the US President Trump being quite resolute in his stance on China being responsible for the wide spread of the virus and with six American states preparing for legal actions against China for the responsibility it failed in, it is worth considering if China can be made legally liable for neglecting its responsibility in the face of such easily contagious virus and its concomitants, on theoretical underpinning of International Law.
Allegations on Beijing failing to fulfil the international legal principle of State responsibility and IHR rise from the alleged facts that Beijing authorities suppressed the early whistle blower doctors like Li Wenliang who ultimately succumbed to the disease. As the world leaders emphasize, not only raising their accused fingers against China, but also against World Health Organization (WHO), the spread of the virus could have been controlled if China (and WHO) had revealed the easily and speedy contagious nature of the virus.
Lewis Libby and Logan Rank dictate that the simple justice requires Beijing to accept consequences facing any other wrong doer. They emphasize that this may include an end to menacing ways and even partial compensations to the grave harms caused outside China. Stressing on how China failed to comply with international law on infectious diseases and with the principle of state responsibility, James Kraska proclaims that China should bear the full compensation that would amount to trillion dollars. Nevertheless, despite these allegations, a pragmatic and theoretical perception needs to be thrown into the legal basis of these allegations in order to understand how International Law works in a crisis of this nature.
Allegations pertaining to violations of Article 6 and 7 of International Health Regulations rise from the requirements that are expected to be complied with by the member states. Article 6 (2) of the IHR requires the member states to apprise the WHO of an event that has the potential of being a public health emergency of international concern (PHEIC) and to communicate to the WHO on timely, accurate and scientifically detailed public health information available to it. Article 7 enunciates that if member states have evidence of an event of a PHEIC, it needs to deliver all the relevant information to WHO.
As per Article 63, Member states are obliged to communicate promptly to the WHO on the important laws, regulations, reports and statistics pertaining to such grave health issue. Along with the provision in IHR, potential claims lie in allegations on the violation of Article 64 of the WHO Constitution. It states that “each member state shall provide statistical and epistemological reports in a manner to be determined by the Health Assembly”.It’s amidst these well-established laws and regulations that China is alleged to be withholding the early reports of the infection.
This want of transparency and authentic information made WHO to believe that the virus does not cause human to human transmission and it caused the asymptomatic patients to be gone unobserved. This allegation brings the claim of China defeating the object and purpose of the WHO, by not obliging the general international law of not to defeat the object and purpose of international treaties as embedded in Article 18 of the Vienna Convention on Law of Treaties.
Article 31 of Articles for State Responsibility states that the states are requires to make full reparations for the injury caused by intentionally wrongful acts. International Court of Justice held in Corfu Channel case (1949) that no state may knowingly allow its territory to be used for acts contrary to the rights of other states. This legal underpinning brings to the fact that If China has evidently misguided the WHP and had intentionally kept the grave nature of the virus hidden, these legal provisions establish the fact that China can be held accountable.
Nevertheless, the recent speeches of the US President makes it axiomatic that China’s liability on the spread of the virus and its consequences seem less about the international law and more about an apparent geopolitical rivalry which was on the set of international system for last couple of years. The rivalry between the USA and China has now started to shape the politics of the pandemic. As Libby and Rank observe, the Covid-19 outbreak is now shaped into the US- China rivalry that has spasmodic outbursts in arenas of intellectual property, international trade, proliferation of nuclear technology etc…
This was vehemently criticized by the UN General Secretary António Guterres commenting on how the world leaders have started to be engaged in a power struggle taking the most of the situation created by the Covid-19. Absence of clear cut power rivalry during the SARS (2003) and H1N1 (2009), made them never to have been perceived in the eyes of geopolitics. However, the outbreak of AIDS (1980s) never did escape the then US-Soviet rivalry.
How Trump keeps blaming the Beijing authorities in spite of the fact that intelligence service declaring that the virus is not artificially created, and how he encourages the law suits against China, seems to be bringing the politics of this into play. The fact that gets proven day by day with attempts to seek relief in International Law in these kind of crises is the conundrum as to the real effect of International Law on China’s alleged behavior in the face of this virus.
Treaties dating back to the 19th c. and IHR has no provision on an obligation to compensate. No discernible role in disease outbreaks lie on Customary International Law either. As per Fidler, fulfilling the treaty obligations to report the disease outbreaks involves challenging scientific and public health questions and difficult political calculations. It is this reality that hits in real time governance in any state which overshadows the international treaty / customary obligations.
Hence it is evident that despite the presence of established international legal underpinning against a wrongdoer in the event of such global health problem, a concoction with both geopolitics and legal basis as to how International Law plays its role is inevitable. This hybrid of geopolitics, power struggle and International Law would ever be present as the difficulty lies on how a state is enabled to frame its complaint over China’s conduct as one concerning the international application on the WHO Constitution and on (any) potential reparation that China would face in the event of such legal action.
This understanding of the pragmatic nature of the role of International Law hand in hand with geopolitics, makes it a discernible fact that the soft power of China with its controversial financial aids would be quintessential for a world rising in the aftermath of Covid-19; and thus it is needless to say that this implanted ideology on China specially throughout the developing world would make China secured even against any potential allegation on International Law.
Author: Punsarani Jayawardhana L.L.B.(Hons)(UoL), B.A. (International Relations)(Hons)(UoC), Attorneys-at-Law(reading)(Sri Lanka Law College)
(The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of World Geostrategic Insights)
Image Credit: Pang Xinglei/Xinhua via AP, File)