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Author - Advocate Akash Sinha, Partner, Vera Causa Legal

While we were busy celebrating the dawn of a new decade and making new year resolutions, the world that we lived in, was undergoing its most tumultuous change in the last hundred years or so. We just did not realise, or were we hoodwinked into believing that all was hunky dory while the world was rapidly being plagued by a disease which has belittled all the scientific advancements made by mankind and has brought the most powerful and richest countries to their knees. 

I have attempted to explore legal possibilities in light of this deadly disease and the global mayhem that the same has unleashed upon on the world which may be on a scale that none of us still have foreseen. Regardless of whether it was a bio weapon, an unintended leakage, or a naturally precipitated unnatural virus strain, responsibility has to be fixed and perpetrators shall have to be made to pay, or the United Nations Organisation would be remembered to be equally effective as was the League of Nations in preventing the World War II. The legal community will have a very important role in the post covid19 era, and our success or failure will determine much about the direction in which the world moves ahead.

History is never kind to people and countries who refuse to learn from their mistakes. The League of Nations was created with the best of intentions in order to protect the world from a war like the First World War. However, the international body lacked the power needed to maintain international peace and the result was an even deadlier war in the form of World War II. United Nations Organisation was a much more powerful international body and is often credited with being successful in stopping the world into getting a into a war of similar scale, ever since. However, it is imperative to note that the Third World War has been avoided largely due to a multi polar world and globalisation which has made Modern Nation States so intricately intertwined and dependent upon each other that a War is often avoided due to severe economic consequences for the nations at large. However, the inadequacies and ineffectiveness of United Nations to deal with a powerful perpetrator has never been more exposed than the present situation. 

The Peoples’ Republic of China is a repeat offender and the international powers that be, are walking on egg shells, wary of upsetting the mighty dragon, while people all over world are scared to even step out of their homes to earn their daily bread. In the year 2002-2003, China was the breeding ground for deadly SARS disease. It was aware for months that a new deadly type of pneumonia was spreading rapidly in Guangdong Province, but it concealed the sensitive information from the rest of the World, which resulted in spread of the deadly disease to 29 countries, infected thousands of people and more than seven hundred people had succumbed to the deadly disease before the same could be controlled. Despite the international powers, being aware of China’s callous and reckless behaviour bordering on criminal negligence, no action could be taken against China. However, a need was felt that responsibilities of member states must be fixed to avoid such casualty in future and accordingly the International Health Regulations were amended under the aegis of the World Health Organisation in the year 2005 and it provided for a detailed reporting mechanism which even a school going child can understand. The pictorial representation is as follows.

 Source: International Health Regulations, 2005¹

The First reported case of the novel coronavirus in Wuhan Province of China was reported as early as December 11, 2019. By mid-December, there were scores of corona virus patients in Wuhan itself, yet it was business as usual in China. Wuhan province being one of the most developed provinces of China, it is almost always full of foreign tourists, who were rapidly playing a role unwittingly, in rapid contagion of the deadly disease to far off places. Even if we proceed on the premise that Covid19 is not a bioweapon but it happened on its own, still, deafening silence about magnitude of the deadly disease for almost two months is almost criminal in nature. The first doctor who tried to warn the world about a deadly new virus Dr Li Wenliang, was gagged, discredited and shunned (who since then, has unfortunately succumbed to the disease) and all reports on Chinese social media about spread of a deadlier virus than SARS were clinically scrubbed by the Chinese authorities. The magnitude of concealment and deceit can be gauged from the fact that China went ahead with Lunar New Year Celebration late in the month of January 2020 and the same resulted in further global transit and contagion of the virus. 

Ideally China should have apprised the international community and the World Health Organisation as per the International Health regulations by second week of December. Experts believe that the extent of damage could have been mitigated by 95%. The last pandemic to cause such heavy casualties was a hundred years ago. Its not as if new and serious viruses and communicable diseases did not crop up over the last century, but it was the prompt action by member states of the WHO, expedited steps taken by international community which helped nip the problem in its bud, so to speak. The world faced serious threats in the form of Ebola, H1N1 and Nipah virus and while all the diseases said were deadly, they were not allowed to turn into a global pandemic. While nations have a right to tend to affairs of their territories in the manner, they deem fit, the world today is different than a century ago. Due to globalisation and technological advancements, countries and their citizens are mingling like never. Every large country has its hands in the other’s cookie jar. Large nations cannot act in isolation, especially when they act as the world’s factory or manufacturing base. 

While unarguably the most developed nation has had casualties in excess if 4500 in the last twenty fours itself with total number of infected cases in excess of 11 lacs, China, surprisingly kept its total number of deaths around 4600 and number of covid19 patients around 82,000 despite being the ground zero for the virus being in Wuhan province. There are only two possible explanations to this, one being that China knew and was well prepared in advance to deal with the situation and withheld the information from rest of the world. The other explanation is that China is once again lying which wouldn’t be surprising at all. The number of mobile phone subscribers has gone down by more than 15 million in only the first two months in China, yet surprisingly the numbers remain surprisingly low. Even in the aftermath of its “purported” victory against the deadly disease, conduct of China remains highly deplorable and circumspect. Chinese testing swab kits exported to United Kingdom were found already contaminated with covid19 virus. PPE kits exported France were made of such shabby materials that they came apart while being taken out from the bags. Spain and Portugal had to reject the sub-standard testing Kits, so did Canada. China shamelessly sold back the free aid Italy had given to China during peak of covid19. However, the worse is just starting to unravel now, with the Chinese Government on a shopping spree, looking to undertake hostile takeovers left right and centre in Australia, Europe and other countries, seeking to buy stressed businesses at dirt cheap rate. It is pertinent to mention that the global economic meltdown has been precipitated by China with its concealment/misadventure.

Prior to the limited ways in which actions of China can be called into question at international fora, analysis of China’s actions through spectrum of basic tenets of Torts Law has been discussed hereafter in different scenarios. 

If virus was leaked inadvertently from the lab in Wuhan:

In case there was a leakage in the Wuhan Virus Bank and the strain travelled from there to the Wuhan wet market resulting the global pandemic, China can and must be held tortuously liable. The landmark case of Ryland v Fletcher² doctrine of Strict Liability had evolved and as Chinese lab was holding on to something which was dangerous and likely to wreak havoc if the same escaped confinement and the Chinese government still failed to prevent leakage of the said virus. In this scenario, China can be strictly held liable for the loss of human life, trade and commerce, the world over due to its leakage. Even in case, China seeks to cite some flimsy defence, international community must hold China responsible under the Doctrine of Absolute liability as expounded by Indian Supreme Court in the case of M. C. Mehta v Union of India³. 

If virus was not leaked and it started from the Wuhan wet market on its own:

The first covid19 case was diagnosed as early as December 1, 2019 but despite being aware of the risks from the disease, China went about things as though nothing was wrong. China was aware of the facts that there is no cure to covid19 affected patients as well as the fact that contagion rate of the disease was extremely high. Concealment of facts from the international community is clear violation of almost all principles of Tort Law we learnt as young Law students. China had a duty of care towards the rest of World which it is in clear breach of. China could have reasonably foreseen the result of its actions (rather inaction and concealment) and breached the neighbour principle as expounded in the celebrated case of Donoghue v Stevenson⁴. Even though culpability of China cannot be denied under the Law of Torts, sadly, there is no mechanism whereby a claim can successfully be brought against a sovereign state under Law of Torts. While a suit seeking $ 20 Trillion from China in compensation has been filed in United States of America. Missouri has become the first state in the United States of America to sue China officially for suppression of information about the deadly corona virus which has caused irreparable injury and damage to countries globally. While undoubtedly, China is going to be sued in domestic courts the world over, extra territorial nature of the case and disputes pertaining to jurisdiction would be major stumbling blocks. Even if a favourable verdict is given by the local courts in any such case, execution of such decrees is going to be extremely difficult as China would claim the same as an affront to its sovereignty. The only feasible scenario then appears to be International Bodies, namely, the International Court of Justice and the International Criminal Court and a brief attempt has been made to ascertain possibilities of success before these two judicial bodies.

International Court of Justice, Hague

The world had realised that we were ill equipped to deal with a global pandemic and that better regulatory mechanism had to be devised to deal with such a situation in the year 2005. Interestingly, it was after China’s less than acceptable handling of the SARS outbreak. This resulted in culmination of International Health Regulations, 2005 which provided a detailed mechanism for the manner in which any pandemic situation is to be handled. Reporting of any unknown disease having potential to infect people globally is one of the most crucial provisions of the Regulations. However, the most disappointing part of the aforementioned regulations is that it does not have any punitive provisions in the Regulations; in case there is a violation of International Health Regulations by any member state of the World Health Organisation. Article 56 of the Regulations provides for resolution of inter member disputes regarding interpretation of the regulations by submitting to arbitration. However, such a process can be initiated only with consent of the member states involved in the dispute. It is highly unlikely that China would agree to submit itself to any arbitration to be conducted under the aegis of WHO Director General.

While it goes without saying, that at the very least, China is guilty of contravention of reporting mechanism laid down in Article 6 and 7 of the International Health Regulations read with Article 64 of the World Health Organisation Constitution which put obligations of prompt reporting of any disease outbreak or potential pandemic disease which may have an international impact, without any delay to the WHO and international community. Article 75 of WHO Constitution provides for jurisdiction of the International Court of Justice pertaining to any dispute concerning interpretation and application of the aforementioned constitution⁵.

A solid argument can be made that Article 64 of the WHO constitution⁶ read with Article 6 and 7 of the regulations⁷ as discussed in detail in foregoing paras, are vital and critical in achieving the purpose of the world health organisation and hence China’s contravention of the same can and must be adjudicated upon by the International Court of Justice (ICJ hereafter for the sake of brevity). While China can be sued before the International Court of Justice under the aforementioned provisions, there is no punitive provision in the constitution or health regulations of WHO, and in such a scenario, even if the ICJ hold China culpable and adjudicates against it, China, being a permanent member of UN Security Council can veto execution of any such order passed by the Hon’ble ICJ.

International Criminal Court (ICC)

This section is based solely on the premise that there was wilful and deliberate delay on part of the Chinese dispensation in reporting outbreak of covid19 to the international community in order to wreak havoc the world over and cause mass casualties. Such form of mental element is known as dolus directus⁸ and crimes perpetrated under such mens rea can be adjudicated upon by the ICC as per Article 30 of the Rome Statute. However, elements of crime on which the ICC adjudicates upon are either genocide, war crimes and armed aggression as per the Rome Statute⁹. Perhaps when the Treaty was entered, a scenario of wilful leakage of biological weapon or virus and suppression of facts by state or non-state actors was not foreseen by the global policy makers. Another problematic factor with this course of action is that ICC is extremely dependent upon UN Security Council for referral of cases and even if the ICC takes suo moto cognizance of case or a complaint by any member state, execution of its orders are also dependent upon co-operation of UNSC. It is a safe conclusion that any action before ICC would be strongly opposed by China and it would veto any attempt to implicate Chinese President or any other personnel responsible.

Conclusion

The Covid19 virus has exposed the world to its inefficiencies like never. While, even the most developed countries have struggled to manage covid19 successfully and international community’s lack of commitment to development of a strong pandemic deterrence has come to fore, international organisations and the World Health Organisation, both are not equipped to deal with challenges of twenty first century. There must be a thorough system to resolve plethora of disputes that are going to arise due to covid19 pandemic, and if the international community cannot resolve the same legally, consequences will be devastating for the entire world. Need of the hour is to make the UNSC more inclusive and democratic so that any permanent member of security council cannot use its veto power to virtually shield itself from submitting international judicial bodies. 

Most importantly, the international legal position vis-à-vis pandemics, biological weapons, cyber attacks and other emerging challenges of this century wherein more damage can be wreaked upon the world due to a virus than perhaps weapons of mass destruction; is woefully underprepared and grossly inadequate to meet the challenges of the twenty first century. International legal community will have to stand up and ask the questions which are relevant. The world deserves to know what led to covid19 progressing into the worst pandemic in the last century. China needs to be held accountable; and a proper investigation must take place against its alleged complicity or negligence or wilful default which endangered the entire world population and there must be reparations for unprecedented world economic crisis. The global dynamics will have changed by the time the world gets back on its feet and nations will be compelled to ask some tough question from the Chinese government. What the world lacks right now is a legally binding mechanism and platform where such questions can be asked to China can be held accountable for its role in the Global Pandemic Covid19.

1-  International Health Regulations, 2005.
2-  [1868] UKHL 1.
3-  1987 SCR (1).
4-  [1932] UKHL 100.
5- Peter Tzeng, “Taking China to International Court of Justice over Covid 19, EJIL: Talk, available at:
https://www.ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid-19/
6-  Article 64 of the World Health Organisation, available at:
https://www.who.int/governance/eb/who_constitution_en.pdf
7-  Article 6 &7 of the International Health Regulations, 2005
8-  Johan Van der Vyver, “The International Criminal Court and the Concept of Mens Rea in International Criminal Law”, University of Miami International & Comparative Law Review, Vol. 12, p. 57, 2004
Emory Public Law Research Paper.
9-  Rome Statute, available at:
https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf