How China Can Indeed Be Sued In The ICJ: Here’s A Possible Case
China’s actions, or the lack of them, in the wake of the SARS-CoV-2 outbreak, can be proven to be violative of the provisions of the International Health Regulations (2005).
The Covid-19 epidemic is not an act of God, but prima facie arises from acts of omission and commission of the Chinese State. These are actionable under international law.
The past 100 years, China has been the epicentre of at least four pandemics apart from Covid-19, namely (a) ‘Spanish flu’ 1918–1919, (b) Asian Flu, 1957–58 (c) Hong Kong Flu, 1968–69 and (d) Swine Flu, 2009–10.
All of them arising out of China’s penchant for live slaughtered animals (wet market) and exotic meats. As late as 2019, Chinese scholars in a paper titled Bat Coronaviruses in China, have predicted the possibility of novel form of coronavirus emerging.
Thus, it was foreseeable for the Chinese that in the absence of proper care, a zoonotic virus can emerge and become a global contagion. China was not merely negligent, but it actually amplified the problem in the following ways:
First, the Chinese authorities failed to take timely containment measures. The first Covid-19 patient was admitted on 16 December. By 30 December, Ai fan, Director in Wuhan Central Hospital, blew whistles of it being a novel coronavirus.
By 2 January, it was genome-mapped, but the Chinese still allowed the Communist Party meeting in Wuhan (11-17 January) and the Annual Wuhan Lunar New Year banquet (18 January), thereby letting in millions of people in the city. No travel restriction was introduced till 23 January when the lockdown in Wuhan began. The virus by that time reached at least three different countries.
A study by the University of Southampton shows that if Non Pharmaceutical Interventions (disease detection, isolation of cases, quarantine and social distancing) could have been conducted one week, two weeks, or three weeks earlier, cases could have been reduced by 66 per cent, 86 per cent and 95 per cent respectively – significantly limiting the geographical spread of the disease.
Second, the Chinese authorities intentionally misled the WHO on several counts.
On 31 December, WHO was notified about an unknown form of pneumonia. At the same time, Chinese doctors warned that the contagion may be a novel form of coronavirus.
By 2 January, the Chinese mapped the virus, but this information was withheld till 9 January.
On 14 January, China misinformed WHO that the virus cannot be passed between humans. It was not before 20 January that China acknowledged that the virus can be transmitted between humans.
Finally, the Chinese authorities entered into a campaign of concealment and intimidation. It reprimanded Dr Ai Fan, and dragged several doctors to the Wuhan Public Security Bureau.
On 1 January, Wuhan Health Commission ordered labs, which had already determined that the novel virus was similar to SARS, to stop testing samples and to destroy existing samples.
The Chinese actions are in direct violation of several provisions of the International Health Regulations 2005 (IHR). These regulations have adopted under the Articles 21(a) and 22, the Constitution of WHO that confers upon the World Health Assembly the authority to adopt regulations “designed to prevent the international spread of disease”. This is binding on the nations that have chosen not to opt out. This includes China.
The Chinese actions inter-alia attract Article 6 (duty of the State to notify all events which may constitute a “public health emergency of international concern” (PHEIC) within its territory).
A PHEIC includes international spread of disease (Article 2 of IHR). It also attracts Article 7 (duty of the State to provide WHO all relevant public health information about unusual public health events that may cause a PHEIC.
Article 42 would also be attracted, that requires the State to take health measures pursuant to which IHR shall be initiated and completed without delay, and applied in a transparent and non-discriminatory manner.
Analogy can also be drawn with a transboundary pollution regime that requires ‘states to undertake due diligence to prevent significant (or substantial) transboundary environmental harm from activities within their jurisdiction or control (See the Trail Smelter Arbitration US v Canada).
Arguably, the same principles apply to the negligent spread of a contagion. Non-reporting of a contagion can be seen as potentially a form of retention of biological weaponry under Article 1 of the Biological Weapons Convention 1972.
The International Court of Justice (ICJ) will have jurisdiction under Article 75 of the WHO Constitution. The judgment will probably not be enforceable since China would not participate in the proceeding and likely block any adverse judgment in the Security Council (Like the US did in Nicaragua v USA 1986).
Even then, a legal challenge to China would hold a mirror up to the regime and show the world what it is - an antithesis of global rule of law.
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