Where does China lie on the Liability Ladder?

There is no doubt that the ongoing pandemic of COVID-19 has caused severe damage to people and economies of various countries across the globe. States such as Missouri and Texas in the US have moved to the courts for compensation for inflicting this “bioweapon” on the world[1]. U.S. Secretary of State Mike Pompeo stated, “there will be a time when the people responsible will be held accountable.”[2] The US, however, is not the only country that considers China to be the culprit for the outbreak. Germany’s largest tabloid ‘Bild’ has presented a Corona Bill, a literal bill slapping a whopping $162 Billion that China is “required” to pay for the losses the country has experienced[3], Even in India, a Mumbai based lawyer has moved to the court seeking a $2.3 trillion compensation from China.  Now, the questions people seek answers to are – Does China owe reparations? Can China be sued? Can the country be held liable for the losses experienced by countries of the world?

Firstly, we must establish that the lawsuits filed within the legislations of various nations do not have a jurisdictional basis. This is because, under the doctrine of sovereign immunity[4],  states are immune from foreign municipal courts. However, there is a jurisdictional basis under the International Court of Justice (ICJ) – under Article 75[5]. In case the dispute is not settled by the WHO, it shall be referred to the ICJ. It is considered that this issue will not be settled by the WHO because many countries feel that China has an undue influence over the agency. This is proved by the country’s increasing contribution to the WHO.

China’s contribution to the WHO has increased by over 52% since 2014 to roughly around $86 million. Though this pales in comparison to its American counterpart, experts predict that the increasing contributions of China increase its grip over the organisation, especially at a time when the US is seen to be losing hope in international organisations and announcing cuts in funding. It should be noted that the Court has stated that a jurisdictional clause like Article 75 of the WHO Constitution would not be able to cover a claim based on this obligation under general international law but can be discerned that jurisdiction is also over any “question” concerning the interpretation or application of the WHO Constitution.

Now the question is what violations can be claimed by the member states? The International Health Regulations[6] were adopted in 2005 by the WHO to prevent irregularities during public health crises.  Under Article 6 of the regulations, it is required to efficiently assess and notify WHO, within 24 hours, the assessment of the public health emergency. Following notification, the State is required to continue to notify the WHO with timely, accurate, and sufficiently detailed public health information available to it on the notified event.

Article 7 further purports that in ‘If a State Party has evidence 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, the provisions of Article 6 shall apply in full’. Once the event is determined to be a public health crises, and provisions under article 6 and 7 have been fulfilled, it is necessary for the WHO under Article 11 to make available to the member states the information regarding the health emergency.

To prove that the violations of articles 6 and 7 have occurred, the chain of events ought to be traced back to as early as December 31st, when Taiwan’s Central Epidemic Command Centre (CECC)  had warned WHO about the possibility of human to human transmission of this virus. However, due to the exclusion of Taiwan to the committee as China has repeatedly blocked its entry to the organisation and the WHO acknowledging the island nation to be a part of China, the WHO stated that this warning had been acknowledged and transferred to the relevant department.

Since Taiwan does not possess membership, it has to rely on the health department of China with regard to information about the outbreak. As for the violation of Article 11, it occurred when the WHO did not notify State-parties about the gravity of this virus. Even though the number of cases were drastically increasing, the WHO notified that there was no human to human transmission[7]. On the 23rd of January, the emergency committee of WHO was at odds on whether or not to declare this outbreak as a Public Health Emergency of International Concern (PHEIC). When the committee disagrees, the DG of WHO has the final authority. In this case, the DG, although admitting that “this is an emergency in China”, opted to wait. By this time, COVID-19 cases were on the rise with more than a 1000 new cases each day.

Another claim that can be put forth would be the violations of Article 63 and 64 of the WHO constitution which state, ‘Each Member shall communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health which have been published in the State concerned’ and ‘Each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly’ respectively. This, however, was not done by China. China did not share adequate information and data in regard to this pandemic. It was only on 14th February, more than a month into the crisis, that China disclosed that about 1,700 front-line medical workers were infected at the time[8]

Moreover, it has recently been reported by US intelligence that China has concealed the extent of the outbreak by a large percentage[9]. U.S. Secretary of State Michael Pompeo urged China to be transparent about their outbreaks. He accused China of covering up the extent of the problem and being slow to share information, especially in the weeks after the virus first emerged, and blocking offers of help from American experts. Although China has challenged the authenticity of these reports, if proven to be true this will amount to a serious violation of Article 63 and 64.

Finally, there is a nonbinding dispute resolution mechanism within the WHO where states can first pursue to settle a dispute through negotiation. If negotiation fails, states may raise complaints to the WHO’s director-general. However, given that Director-General Tedros Adhanom Ghebreyesus has been praising China instead of criticizing its government, it is doubtful that the WHO will handle the issue efficiently.   Another setback would be the lack of authority the WHO holds in enforcing compliance to judgements. The responsibility would lie with the domestic legal system of the country in dispute, in this case, China. If this case is taken up before the ICJ, and assuming that China does lose, Beijing may refuse to comply with the decision. If so, the UN Charter allows the Security Council to take all necessary measures to enforce the judgment. One should, however, bear in mind that China being a permanent member can veto any resolution.

Before concluding it must be stated, due to the rise in xenophobia, it is essential to comprehend that though there is a substantial liability on the Chinese government, it does not mean that the blame should be shifted towards innocent Chinese people. Thus, to sum up, it can be said that the masses would agree that China does owe reparations due to its negligence. Though pursuing a legal case in a public forum such as the ICJ may not be successful, it can lead to significant developments in the socio-political atmosphere.

[1] US State files lawsuit against China on Covid-19 handling, The Economic Times (2020), https://economictimes.indiatimes.com/news/international/world-news/us-state-files-lawsuit-against-china-on-coronavirus-handling/articleshow/75286051.cms

[2] Victor Garcia, Rep. Mike Johnson on holding China accountable for coronavirus: ‘We need to take decisive action’ Fox News (2020), https://www.foxnews.com/media/rep-mike-mike-johnson-china-coronavirus-pandemic

[3] Revathi Krishnan & Abhay Mishra, German daily sends $165 bn bill to China as Covid-19 damages, Beijing calls it ‘xenophobia’ ThePrint (2020), https://theprint.in/world/german-daily-sends-165-bn-bill-to-china-as-covid-19-damages-beijing-calls-it-xenophobia/405311/ .

[4] Paschal Oguno, The concept of state immunity under international law: An overview, 25 Int. J. Law 10–24 (2016).

[5] WHO CONST. art. 75

[6] International Health Regulations, 2005

[7] Nick Givas, WHO haunted by January tweet saying China found no human transmission of coronavirus Fox News (2020), https://www.foxnews.com/world/world-health-organization-january-tweet-china-human-transmission-coronavirus .

[8] Emily Rauhala, World Health Organization: China not sharing data on coronavirus infections among health-care workers The Washington Post (2020), https://www.washingtonpost.com/world/asia_pacific/world-health-organization-china-not-sharing-data-on-health-care-worker-coronavirus-infections/2020/02/26/28064fda-54e4-11ea-80ce-37a8d4266c09_story.html (last visited May 17, 2020).

[9] Nick Wadhams & Jennifer Jacobs, China Concealed Extent of Virus Outbreak, U.S. Intelligence Says Bloomberg.com (2020), https://www.bloomberg.com/news/articles/2020-04-01/china-concealed-extent-of-virus-outbreak-u-s-intelligence-says (last visited May 2020).

 Aditi Nemakal from  Tamil Nadu National Law University

editor – vatsala sood

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