Coronavirus Pandemic: China can be sued in the International Court of Justice – Suvrajyoti Gupta

Dr Ai Fen

Suvrajyoti GuptaChina’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). – Prof Suvrajyoti Gupta

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 Fen, Director in Wuhan Central Hospital, blew whistles of it being a novel coronavirus.

By 2nd 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 World Health Organization (WHO) on several counts.

On 31st 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 2nd January, the Chinese mapped the virus, but this information was withheld till 9 January.

On 14th January, China misinformed WHO that the virus cannot be passed between humans. It was not before 20th 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 Fen, and dragged several doctors to the Wuhan Public Security Bureau.

On 1st 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. – Swarajya, 30 March 2020

Prof Suvrajyoti Gupta is an Assistant Professor of Law at the O.P. Jindal Global University, Sonipat, Haryana.

Universal Justice


 

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  1. Xi & Ghebreyesus

    China and the WHO’s Chief: Hold them both accountable for pandemic – Bradley A. Thayer & Lianchao Han – The Hill – Washington – 17 March 2020

    The World Health Organization (WHO) last week finally declared the coronavirus from China that rapidly spread across the world a pandemic. Now, with more than 150,000 confirmed cases globally and more than 5,700 deaths, the question is why it took so long for the WHO to perceive what many health officials and governments had identified far earlier.

    We believe the organization’s director-general, Tedros Adhanom Ghebreyesus, like China’s Xi Jinping, should be held accountable for recklessly managing this deadly pandemic. Tedros apparently turned a blind eye to what happened in Wuhan and the rest of China and, after meeting with Xi in January, has helped China to play down the severity, prevalence and scope of the COVID-19 outbreak.

    From the outset, Tedros has defended China despite its gross mismanagement of the highly contagious disease. As the number of cases and the death toll soared, the WHO took months to declare the COVID-19 outbreak as a pandemic, even though it had met the criteria of transmission between people, high fatality rates and worldwide spread.

    When President Trump took a critical step to stop the coronavirus at U.S. borders by issuing a travel ban as early as Jan. 31, Tedros said widespread travel bans and restrictions were not needed to stop the outbreak and could “have the effect of increasing fear and stigma, with little public health benefit.” He warned that interfering with transportation and trade could harm efforts to address the crisis, and advised other countries not to follow the U.S. lead.

    When he should have been focusing on global counter-pandemic efforts, Tedros instead was politicizing the crisis and helping Xi to shirk his responsibility for a series of wrongdoings in addressing the outbreak. Tedros used the WHO platform to defend the Chinese government’s gross violation of human rights. For example, from its first case discovered in November to its Wuhan lockdown, and even until today, China has been dishonest about the coronavirus’s origin and prevalence. People who tried to uncover it were detained or disappeared, their online reports and posts deleted. China has misinformed and misled the world, and Tedros joined this effort by publicly praising China’s “transparency” in battling the spread of the disease.

    When Xi ordered Chinese health officials to speed up the development of drugs by using “integrated Chinese traditional herbal medicine and Western medicine,” the WHO’s official publication, “Q&A on coronaviruses (COVID-19),” made a subtle change. Chinese netizens found a discrepancy between the Chinese and English versions of a list of measures deemed ineffective against COVID-19. The English version listed four items — smoking, wearing multiple masks, taking antibiotics, and traditional herbal remedies. The fourth item was not included in the Chinese version. (Today the English version also has deleted that item.)

    China recently pledged $20 million to help the WHO fight the COVID-19 outbreak, for which Tedros thanked Xi. But we note China’s connections to Tedros’s homeland of Ethiopia, now called East Africa’s “Little China” because it has become China’s bridgehead to influence Africa and a key to China’s Belt and Road initiative there. Indeed, China has invested heavily in Ethiopia.

    Tedros was elected to his position with the WHO in 2017, despite the fact that he was not trained as a medical doctor and had no global health management experience. A former minister of health and minister of foreign affairs for Ethiopia, Tedros is an executive member of the Tigray People’s Liberation Front (TPLF) political party, which came to power through a struggle in 1991 and has been listed as a perpetrator in the Global Terrorism Database. After he became the WHO’s chief, critics questioned Tedros’s attempt to appoint then-Zimbabwe dictator Robert Mugabe as a WHO goodwill ambassador.

    The coronavirus pandemic has shown that Tedros is not fit to lead the WHO. Because of his leadership, the world may have missed a critical window to halt the pandemic or mitigate its virulence. The world is now battling rising infections and many countries have imposed restrictions. As leader of the WHO, Tedros should be held accountable for his role in mismanaging efforts to control the spread of the virus.

    > Bradley A. Thayer is professor of political science at the University of Texas-San Antonio and the co-author of “How China Sees the World: Han-Centrism and the Balance of Power in International Politics.”

    > Lianchao Han is vice president of Citizen Power Initiatives for China. After the Tiananmen Square Massacre in 1989, he was one of the founders of the Independent Federation of Chinese Students and Scholars. He worked in the U.S. Senate for 12 years, as legislative counsel and policy director for three senators.

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