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COVID-19 Pandemic And The Response Of International Law

Professor Arvind Jasrotia
5 Jun 2020 1:40 PM GMT
COVID-19 Pandemic And The Response Of International Law
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  1. Backgrounder

COVID-19 pandemic has become an existential crisis apart from being a health, social and economic crisis. The latest figures reveal the sordid saga of human suffering with over 6 million cases of infection and over 3.7 Lakh deaths spread over 216 countries of the world, and as scientists predict, the peak is yet to come. The exponential rise of the virus, SARS-CoV-2, unknown to science until December, 2019, has bewildered governments worldwide as to how to combat this pandemic while simultaneously taking care of their shattering economies. The capacity of medical healthcare and health infrastructure has been severely breached in majority of the countries, even as scientists passionately search for the vaccines.

The theory that COVID- 19 was bioengineered in a lab facility in the city of Wuhan has been refuted by scientists as they trace its origination through a zoonotic source, by comparing the available genome sequence data for known coronavirus strains and the illness being traced to workers and customers of city's Huanan Seafood Wholesale Market dealing with exotic and wild animal species. Precedents point towards the origination of other viruses too, like HIV, SARS, Ebola, et.al, in a similar fashion. As humans' unwarranted encroachment into animal habitats grows more widespread, the spillover events lead to virus spread. The likely distant source in the case of SARS-CoV-2, has been bats.

B. Conduct of China:

China's conduct has come under scanner. In the year 2002, the Guangdong province of China became the epicenter of the first wave of virus spread in the form of Severe Acute Respiratory Syndrome (SARS) that affected 28 nation-states by the year 2003 with human fatalities numbering around 774. The international community realized that this loss of human lives could have been averted had China acted with 'due diligence' and not suppressed, for several weeks, the vital public health information, so essential, to contain further spread of the disease. This forced WHO to amend International Health Regulations in 2005 whereby an obligation was cast on member states to share relevant information to the WHO within 24 hours.

In case of COVID-19 pandemic, China's silence in the initial days of the crisis made the matter worse. Chinese authorities suppressed crucial information and delayed informing the world about the severity of a deadly disease spreading its tentacles within the country's borders. Instead, sinister efforts were made to silence whistleblowers, like the ophthalmologist at Wuhan Central Hospital, late Dr. Li Wenling who was accused by the police authorities for making false comments to his fellow colleagues about the novel coronavirus which eventually took his life on February 7, 2020. On December 31, when China first announced the outbreak of a mysterious pneumonia, officials there emphasized few things, inter alia, that most of the patients had been to a food market in Wuhan, the city that was still the epicenter of the outbreak and that there was 'no clear evidence' of human-to-human transmission. Instead, they suggested, an animal-to-human transmission and that the earliest cases had shown symptoms only recently, on December 12. However, independent evidence as well as Trump's open letter to WHO suggested otherwise and pointed out that infection was visible in early December and even earlier. While eventually China did share 2019-nCoV's genetic sequence shortly after WHO announced the outbreak as a Public Health Emergency of International Concern on 30 January, 2020, it has not been forthcoming with additional information so vital to understand the pattern of virus mutation and its transmissibility. The repeated offers from the US Center for Disease Control and Prevention and WHO to send experts to China met with refusal. It was only on February 9, 2020 that WHO announced the departure of a mission to China but it was not going to Wuhan yet. Due to the secrecy, delay and intentional misrepresentation on part of China, the World had less time to prepare and react to the COVID-19. Estimated over 5 million people left Wuhan in the weeks before the city was quarantined on January 22, thereby facilitating the transportation of the virus all over the country and overseas.

A public interest petition in the Supreme Court of India, Class Action Law Suits in the US and petition to UNHRC has been filed accusing China of deliberately created biological weapon in the form of COVID-19 as well as suppressing important facts, denying crucial evidence, destroying research and willfully allowing millions to be exposed to the virus. However, the customary rule of state immunity, which is based upon the foundational premise of sovereign equality of states, clearly carves an exception that one state cannot exercise jurisdiction over another state.

C. International Health Law

International Health Law or more popularly, Global Health Law is primarily anchored in International Health Regulations that focus on 'infectious diseases' and the WHO's Framework Convention on Tobacco Control, 1969 that focus on 'chronic diseases' but also draws elements from International environmental law, International humanitarian and human rights law, International trade and labour law, international laws relating to arms control, et.al.

China's conduct relating to COVID-19 outbreak violated IHR regulations as China knowingly and deliberately, failed to adhere to international health regulation in preventing Covid-19, in particular, the obligations of 'timely notification' and 'information-sharing' outlined in Articles 6 and 7. Had China expeditiously shared the information with WHO on the novel coronavirus, there would have been exponentially less cases of COVID-19 today. Article 6 talks about the Public Health Emergency of International Concern (PHEIC) which enjoins the States to communicate through National IHR Focal Point, most efficiently, all the public health-related information and events taking place within its territory to the WHO within 24 hours of the assessment. Article 7 imposes an obligation upon States to share all relevant public health information with WHO of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern. However, complexity lies in identifying a jurisdictional basis for an international court or tribunal to hold China responsible for these violations. Article 56 of the IHR does provide mechanism for arbitration only in the event that China consents, which, needless to say, is very unlikely given the fact that China is powerful and influential militarily and diplomatically, besides being permanent member of the UN Security Council, which enables China to invoke veto power to block events once its interest is at stake.

Scholars have located another jurisdictional basis in Article 75 of the WHO Constitution that provides: "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 ICJ. In few cases, ICJ has acknowledged that Article 75 of the WHO Constitution provides for the Court's jurisdiction but framing a complaint over China's conduct as one concerning the interpretation or application of the WHO Constitution is an arduous task.

Claims of States against China may also find basis in violation of Article 37, which provides in relevant part: "Each Member of the Organization undertakes to respect the exclusively international character of the WHO and her staff and not to seek to influence them. Evidence suggest that China, by withholding information or by providing inaccurate information, sought to influence certain conduct of the WHO Director-General and staff, such as their deferential support towards China initially and alleged delayed announcement of PHEIC on 30th January, excluding notably travel and trade restrictions, notwithstanding independent evidence of virus spread from credible sources including communication from Taiwanese authorities.

Finally, a claim can be made that China has defeated the object and purpose of the WHO Constitution which as per Article 1 is 'the attainment by all peoples of the highest possible level of health' based upon the obligation under general international law not to defeat the object and purpose of a treaty as per Article 18 of the Vienna Convention on the Law of Treaties

D. Draft Articles on State Responsibility

There are certain scholars who assert that a careful analysis of factual circumstances lead one to the inevitable conclusion that conduct of China is wrongful and violated international law, in particular, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001 and that injured states can demand reparation for the injury caused by internationally wrongful act of china. These draft articles, though not legally binding on the States, does have authoritative and persuasive value as most of the provisions have attained the status of customary international law. The ICJ too has taken recourse to the principles in interpreting international law and solving disputes between States. Article 1 states that that every internationally wrongful act of a State entails international responsibility of that State. Under Article 2, the wrongful acts are those actions or omissions which constitute breach of international obligation and can be attributable to the State under international law. The conduct is 'attributable' when a State organ commits it through the legislature, executive, and judiciary or any other functions irrespective of position it holds in the organization of the State or character of as an organ in the central government or in a territorial unit of the State. In the spread of COVID-19 pandemic, responsibility emanates from the local Wuhan authorities to the Chinese central governments which encompass all the State organs whose alleged wrongful conducts could be attributable to China. Further, China's alleged willful and intentional failure to share information expeditiously with WHO in the event of PHEIC in accordance with IHR constitutes breach of international obligations under article 12 as well as article 14 for the continuing breach of obligation. However, a counter argument could be made about the lax attitude of the states in taking necessary precautions' once WHO announced PHEIC.

E. Concluding Observations

Taking a State to the ICJ or any other international tribunal is a formidable challenge before an aggrieved State since international adjudication is consent-based. Given the fact that China is an significant power, militarily and diplomatically, as well as holds permanent membership of the UN Security Council, it is not surprising that even a resolution tabled at recent World Health Assembly by the European Union called for only an 'impartial, independent and comprehensive evaluation' of the international response to the pandemic. It is thus not surprising that voices are being raised for an international commission of inquiry, whose findings and recommendations would be non-binding that provides an alternative to adversarial litigation focused response that may not be fit for the purpose or to seek an advisory opinion of the ICJ to establish a narrative and gain traction on some of the issues and uncertainties that the pandemic raises under international law
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