Consideration about Chinese responsibility under international law for the spread of the COVID-19

08/06/2020 bezpečnost, China, Covid19, security

The unprecedented exposure and the spread of the virus COVID-19 affected almost every place in the world, and apart from the pressure on health services, it brought some additional challenges into the global economy. This article outlines a legal assessment from international law perspective.

The unclear explanation of origins, the initial slow reaction and warning to stop the spread of the virus worldwide, fuelled theories about the man-made kind that was done on purpose. The atmosphere of fear in the air provided a fertile solid for the spread of different conspiracy theories. The US says it possess „enormous evidence“ about virus coming from Chinese lab; however, no such evidence has been officially presented or published (US says ‚significant evidence‘ coronavirus came from China lab, 2020).

In addition to this, there have been mounting calls by other states for an independent probe into Chinese handling of the out-brake (China refuses international probe on Covid-19 source until ‘final victory’ over disease, 2020). Leaving aside all conspiracy theories and question whether the virus comes from the lab or not, the relevant question remains; Is there any legal entity responsible for the COVID-19 outbreak? Would the international community face lighter consequences of the out-brake if there are early warnings from China? Who is responsible for suppression of the information in December and warning by Dr Li Wenligiang (Doctor Who Sounded Early Alarm on Coronavirus Dies at 34, 2020)?

Are affected states by the virus eligible for a compensation?

Recent damn estimate from the University of Southampton estimates that Chinese government could have reduced its number of COVID-19 cases by 95 percent if it had acted to mitigate the disease three weeks sooner and banned international flights from China (To Hold China Accountable for Delayed COVID-19 Action, Target the ‘Great Firewall’, 2020). Such emerging studies arises possible Chinese responsibility under international law.

International law regulates relations between states, and by its rules, it gives rights and poses obligations on states. In the context of arising rights and obligations on states, those are carried out by organs of state or state agents (Brownlie, 2003).

Therefore, the international legal perspective provides us view how Chinese official authorities could be held responsible for potential mishandling over the virus information if any allowed independent investigation or leaked information confirms such misconduct.

Required conditions for international responsibility

The first of all, contrary to many internal legal systems, international law does not define or differentiate between delict and criminal conduct, it instead takes an approach towards international responsibility. According to the objective theory in international law; a breach of an international obligation entails the responsibility of the State that is set as the general principle of international law (Brownlie 2003). The responsibility for the internationally wrongful act of a State can occur as a result of a breach of an international obligation through an act or omission committed by State organs and without any need to prove the existence of any additional psychological element—culpa or dolus (intentionally or unintentionally) (Palmisano 2007).The responsibility for the internationally wrongful act is followed by consequences of an unlawful act that represent all forms of reparation for loss caused for injured State (s).

Such a breach of obligation coming out from treaty or customary law is classified as an internationally wrongful act. Article 2 of ARSIWA recognizes international wrongful act as an act or omission that meets the criterion of attribution of conduct to a State (Responsibility of States for Internationally Wrongful Acts, 2001). In a commentary on Draft Articles, the International Law Commission explained; Whether there has been a breach of a rule may depend on the intention or knowledge of relevant State organs or agents and in that sense may be ‘subjective’ (Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2020).

And therefore, how China can be held accountable for the breach of an obligation?

a) obligation under the WHO

Firstly, the arising question is about the breach of its duty coming out from the World Health Organization. In the preamble of the constitution, WHO states principles to promote and protect the health of all peoples. Besides, violations are particularly concerning violation of accepted Interim protocol to International Health Regulations (IHR) to contain the initial emergence of pandemic (WHO Interim Protocol (2007). And one of the critical provisions of the IHR includes rapid notification and communications such as Following early detection, effective, transparent, and timely communication are critical pre-requisites for the launching of a time-sensitive containment operation WHO should be notified if there is evidence of a new human influenza subtype with or without human-to-human transmission. The national health authority should also provide WHO relevant information and biological materials in a timely and consistent manner (WHO Interim Protocol: Rapid operations to contain the initial emergence of pandemic influenza).

The Executive director of WHO’s health and emergencies programme learned first about the out-brake in Wuhan not directly from Chinese authorities but from the program for Monitoring Emerging Diseases (ProMED) (COVID-19 virtual press conference – 20 April, 2020). The second day on 31^st December 2019 China alarmed about the virus in Wuhan with regards to cases of pneumonia of unknown etiology (unknown cause) detected in Wuhan City, Hubei Province of China. On 1st January Chinese health authorities reported 40 cases with infections with alarm on growing numbers (Timeline: How the new coronavirus spread, 2020).

However, some sources, including Dr Li Wenliang previously issued “urgent notices” to city hospitals about cases of atypical pneumonia linked to the city’s Huanan Seafood Wholesale Market earlier in December (COVID-19 and China: A Chronology of Events – USNI News, 2020). Two days later, after he published the notice, Dr Li Wenliang was reprimanded by local Wuhan police for spreading allegedly false statements about the outbreak online. This is the crucial point, which potentially questions about the willingness to report so far unknown disease in a timely and consistent manner. If any evidence or proof confirms that China was resistant and reluctant initially to notify WHO about the outbreak of the virus, it satisfies the breach of an obligation under the IHR protocol. Article 12 of ARSIWA defines breach of international obligation as an act of State that is not in conformity with what is required of it by that obligation followed by the responsbility for the international wrongful act (Responsibility of States for Internationally Wrongful ActsResponsibility of States for Internationally Wrongful Acts, 2001).

b) Act of omission

Secondly, in this instance, China may bear responsibility for its passive conduct at the beginning of the outbrake of COVID-19 virus. Some international lawyers consider an act of omission as an element of international responsibility. A classic example often represents the Trail Smelter arbitration (Trail smelter case (United States, Canada), [1941]), cited for the proposition that under international law a State is responsible for private activities originating within its territory passing into the territory of another State and causing harm (Christenson, 1990).

The logic behind is that a State has both internal obligations towards its citizens (for example, security) and external obligations towards the international community (treaties, customs). And if a state is not able to secure and comply with obligations, it may reflect impotence and loss of any effective power to control, which if not attributed to the State has consequences for those under the State’s protection (Christenson, 1990).

On the other hand, Chinese authorities, in this instance, possess strong political power. Therefore, non-compliance with arising obligation, in this case, may instead point out to the act of omission and negligent conduct.

From this point of view, a situation with the out-brake of COVID-19 is different from Trail Smelter arbitration. On the one hand, the disease represents an unprecedented situation when exploration of so far unknown virus took time to medical scientists to identify. On the other hand, if Chinese authorities were previously warned by scientific advice and knew about the potential spread and the high-speed of infection and decided to do not pass the warning message to the international community, then the negligent approach, and inaction resulted in preventable severe damages to other states.

Arising consequences

Injured states that are affected by the breach of obligation may invoke compensation for caused damages. Therefore, the international community in some form of alliance or as separate states may raise claims for caused damages over the act of omission and at the same time breach of obligations by China. In the Factory Chorzow case, the court confirmed that it is a principle of international law and a general principle of law that any breach of an engagement involves an obligation to make reparation (1928) PCIJ Ser A No 17, 29).

Article 42 of ARSIWA (Responsibility of States for Internationally Wrongful Acts, 2001) defines such invocation as: “A group of States including that State, or the international community as a whole, and the breach of the obligation that specially affects that State; or is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation”.

Taking into account consequences, economic and social impact largely affected nations around the world by the non-transparent, non-effective initial communication in a timely inconsistent manner. Then Article 46 ARSIWA recognize that each injured State by the same international wrong may separately invoke the responsibility of the State which has committed the internationally wrongful act.

What also may follow?

Considering the international legal means, some members of WHO as injured states may raise claims reparation over Chinese breach of obligation towards the international community and violation of WHO regulations. It may also depend on strength and number of evidences they possess. However, if China persists on its current position and denies responsibility for the international wrongful act, the whole dispute may lead to unprecedented legal adjudication. Article 75 of the WHO Constitution suggest that any question or dispute concerning the interpretation or application of this constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice (ICJ) in conformity with the Statute of the Court unless the parties concerned agree on another mode of settlement. On the other hand, a journey towards judicial means of dispute settlement is long, and it might take a long time for parties to agree to approach to the court.

Sources

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Aljazeera.com. 2020. US Says ‚Significant Evidence‘ Coronavirus Came From China Lab. [online] Available at: <https://www.aljazeera.com/news/2020/05/trump-threatens-action-china-covid-19-200503101120358.html> [Accessed 3 June 2020].

Brownlie, I., 2003. Principles Of Public International Law. Oxford: Oxford University Press.

France 24. 2020. China Refuses International Probe On Covid-19 Source Until ‘Final Victory’ Over Disease. [online] Available at: <https://www.france24.com/en/20200506-china-refuses-international-probe-on-covid-19-source-until-final-victory-over-disease> [Accessed 3 June 2020].

Christenson, G., 1990. Attributing Acts of Omission to the State. Michigan Journal of International Law, [online] 12(2). Available at: <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1646&context=mjil> [Accessed 3 June 2020].

Palmisano, G., 2020. Fault. In: Max Planck Encyclopedias of International Law.

Thediplomat.com. 2020. To Hold China Accountable For Delayed COVID-19 Action, Target The ‘Great Firewall’. [online] Available at: <https://thediplomat.com/2020/04/to-hold-china-accountable-for-delayed-covid-19-action-target-the-great-firewall/> [Accessed 3 June 2020].

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U.S. 2020. Australia Welcomes Growing Support For COVID-19 Inquiry At WHO Meeting. [online] Available at: <https://www.reuters.com/article/us-health-coronavirus-who-australia/australia-welcomes-growing-support-for-covid-19-inquiry-at-who-meeting-idUSKBN22U0OP> [Accessed 3 June 2020].

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(1928) PCIJ Ser A No 17, 29, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, ICJ Reports 1950 p 221

Written by Andrea Prokeszová

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