As the coronavirus continues to consume lives, communities and economies, the proverbial blame game over the pandemic is steadily turning into a shrill call for the world community to hold those responsible to account.
Given its origin in Wuhan and reports of alleged Chinese misconduct in suppressing crucial information about the infection, it is not surprising that people, organisations and governments the world over are showing an inclination to initiate action against China for what they perceive is its grossly irresponsible conduct.
Some overly zealous parties like the American state of Missouri have already filed lawsuits claiming reparations from the Chinese State. Yet, any such proceedings would fall within the complex framework of Public International Law, and given the nature of relief being sought and China’s status as a sovereign entity, would seem to be outside the purview of national laws and the domestic courts of a country.
Resultantly, claims of such a nature would have to be based on china’s failure to fulfil its obligations under international law and legal instruments, the most significant of which, given the context, can be found in the World Health Organisation’s International Health Regulations of 2005.
These Regulations cast clear obligations upon State parties (including China) for timely reporting of international public health emergency risks and contain provisions for effective and comprehensive information sharing, as well as for proper surveillance, consultation and cooperation among States and with the WHO noncompliance with which would be the basis of a case against China.
Furthermore, alleged failure to comply with its international obligations could also arguably amount to China having committed an internationally wrongful act, falling foul of the principles of state responsibility codified in the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, thereby giving rise to a right of affected countries to claim reparations.
Although the same does not constitute a binding legal instrument, violations of such a soft law can significantly buttress any legal action that may be taken against China in this regard. Similarly placed are the Draft Articles on the Prevention of Transboundary Harm, which are often invoked in international environmental issues, and which provide that no country shall permit the use of its territory so as to risk causing harm to another.
In fact, inherent in the principle of territorial sovereignty itself is the obligation of a sovereign State to not disrupt the rights of others, and as such, china’s actions may come under heavy scrutiny on this count. Interestingly, claims about the virus being a Chinese biological weapon are also being made, and violations of the Biological Weapons Convention are thus being alleged as well.
However, despite its seemingly promising legal basis, a fruitful outcome from any such legal action against China does not seem nearly as probable. Parties consent is at the heart of dispute resolution at the international level, and it is unlikely that China will ever willingly submit itself to the jurisdiction of any fora, judicial or otherwise.
While some experts have suggested creative ways out, including getting the WHO to mount a challenge for violation of its Constitution by China, the success of the same would ultimately depend on a host of other factors, including the world’s political and economic realities.
Moreover, even legally proving that the pandemic is a consequence of china’s misdeeds may not be easy, especially given the lack of clinching scientific data as well as the fact that the best evidence to establish the same continues to be with China itself.
The precise extent of damage directly attributable to China and the consequent quantum of reparations due is also something that courts may have a hard time ascertaining. In any case, given the lack of effective enforcement mechanisms under international law (as evidenced by the recent South China Sea arbitration), even if a ruling against China were to be given, its implementation could prove to be a bigger roadblock, especially in light of the Veto Power that China enjoys in the UNSC, which is arguably the most powerful international body.
Resultantly, while the law does seem to offer a way to hold China accountable, the ultimate outcome would depend highly on diplomacy, on international cooperation as well as on the approach taken by the economic and geopolitical giant that China is today (which though, going by recent trends, does not seem very promising).
