By muzzling information China aided corona, can nations sue?

The world is petrified, paining and peeved. For, good people, there is a spectre, to paraphrase Karl Marx, haunting the world. All metropolis, hamlets and villages are reeling under the weight of this invisible adversary with a cold name - Covid-19. At the time of writing, over two million people had been infected by the virus; 135,230 deaths. The International Monetary Fund (IMF) had predicted a -3 percentage contraction of the global economy. The world - under the great lockdown.  

Covid-19, caused by coronavirus, originated from Wuhan City in China and started like a joke. Like the usual sneeze which is sneered at. But, one doctor, Li Wenliang, raised the alarm. He was concerned that the disease appeared strange, behaving like Sars. Contagious and had no cure. Chinese police arrested the doctor and demanded he retracts his “rumour mongering” statements. He did. He later died of the disease. It’s like a stuff of legend.

But then, China sought to calm the world. The system said it was a common flu which will go away and had no human-to-human transmission. Still, when WHO requested for information about coronavirus, China dilly-dallied and played hard ball. When the US Centre for Diseases Control (CDC) offered to assess the situation on the ground, China declined. China also suppressed information about the new virus.

Yet, in 2005 China was signatory to a WHO instrument called International Health Regulations (IHR). These regulations, a review of the 1969, were designed to tackle cases like coronavirus at the source. In this framework, state-parties are under obligations to alert the WHO if a “disease is unusual or unexpected and may have serious public health impact…”

Further, Article 6 and 7 of the regulations require of a State Party to alert WHO about “… public health information, of all events which may constitute a public health emergency of international concern within its territory…” within 24 hours.

China did not conform. Nor did she cooperate when the US CDC offered to assess the situation in Wuhan. The opacity with which China handled corona in January is reminiscent to the 2003 Sars pandemic where she withheld information from WHO.

Epidemiologists contend that had China cooperated early enough, about 90 per cent of the spread of Covid-19 would have been contained. By every measure, China’s behaviour contravenes norms expected of a responsible actor in the international system. Now the world is in a great lockdown never seen even during war. The world is dying in tens of thousands.

The legal question: Is China culpable? Can China be sued for reparations?

This is an interesting development for observers of international relations. In the US, citizens are lodging class action against China (though national courts may not have jurisdiction over other states) based on the doctrine of sovereignty.

Still, the IHR through Article 56, provide room for arbitration by WHO. But arbitration requires admissibility of culpability on the part of China. A China that has vehemently denied any wrongdoing.

However, Article 70 of the WHO Constitution may offer a window, an opportunity probably to take China to the International Court of Justice (ICJ). Article 70 states: “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 International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.”

Now, by breaching Article 6 & 7 of the IRH, China, by extension offended Article 21 & 22 of the WHO Constitution. By refusing to share epidemiological data and statistics, it also breached Article 64 of the WHO Constitution.  

Article 6 of IHR obliges a State Party to assess and communicate with WHO within 24 hours “of all events which may constitute a public health emergency of international concern within its territory…”  In this case, according to the regulations, China was supposed to respond within 24 hours with the most transparent information to afford WHO an opportunity to assess the risks of Covid-19.

That is why states are justified to seek reparation from China for the losses they have suffered. The Charter of the UN is clear in Article 14 that states can seek reparations against others in the event of “wrongful acts”. It will be interesting to see if states will pursue justice through the ICJ as the Charter of the UN spells out.

The International Law Commission Report, A/56/10 of August 2001 outlines measures states can take against a state that commits wrongful acts. According to Article 2 (b) China breached her international obligations in relation to Covid-19 and therefore, in pursuit of such reparations, Article 31 (1) states that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”

China may not have manufactured the pandemic, but she aided its spread. She lied. She suppressed information. She was uncooperative with international bodies. Will China own up and pay this emotional, psychological, economical debt? Who will bell the cat? One thing for sure, African countries, which are beholden to China, will never bother.

The writer is a communications consultant. He analyses and comments on international affairs.