Y. Manasa.
'History Repeats Itself.'
In 2002, SARS spread from Guangdong province of China. The total human casualty was 774 from the disease at that time. The world realized this human loss could have been avoided, had China not suppressed the happenings and vital public health information for several weeks which led the World Health Organisation (WHO) to bring in the New International Health Regulation (IHR), adopted in 2005.
Although the measures imposed to control the spread of the Covid-19 have varied across countries, it is evident that they have and will continue to hit us hard, whether it is the psychological toll of social distancing and self-isolation, or the unprecedented economic impact of this health crisis. World wide a total 32,429,965 confirmed cases of COVID-19, including 985,823 deaths, reported to WHO (as of 26th Sept, 2020). The doctors, health workers, sanitisation workers, police personnel, have been running against the time to save thousands of lives.
In the midst of this disarray, the most widely circulated theory is that the origin of the virus is widely considered to be Wuhan, China. It is claimed that China knowingly as well as deliberately, failed to adhere to international health regulation in preventing novel Coronavirus (Convid-19) and therefore, China should be held responsible for the Convid-19 outbreak.
While the USA claims that China unleashed the Coronavirus as a “biological weapon in violation of China’s agreements under international law”. Several governments and NGOs have blamed China for failing to control the trade in wild animals that could host the virus, as well as for covering up initial warnings of the disease in Wuhan.
State Responsibility and Due Diligence
In the practice of international law, it is generally accepted that the principle of State Sovereignty is the most important and is in fact the pillar of international cooperation and one of its important facets id due diligence. ‘Due diligence’ is a standard of conduct measuring whether a state has employed its best efforts to address certain risks, threats or harms. It is a standard of good governance, assessing whether a state has done what was reasonably expected of it when responding to harm or danger.
In particular, the higher the risk of a certain harm and the graver the potential impact of the related situation, the greater is the effort required of States to prevent, mitigate or stop it from occurring. There are four different provisions wherein due diligence duties are relevant to this outbreak:
a) Non - Harm Principle
The origins of the obligation lie in the old principle expressed by 'sic utere tuo ut alienum non laedas,' which essentially means that states are obliged to use their resources without inflicting damage on, or violating the rights of other states. Although the no-harm principle has gained importance specifically in the environmental realm, where there has been a growing emphasis on prevention and precaution, it also applies generally in international law (ILA Study Group on Due Diligence in International Law, Second Report).
This principle has been applied in several cases including Alabama, Trail Smelter, Nuclear Weapons and Pulp Mills, as well as in the work of the ILC on the 2001 Draft Articles on the Prevention of Transboundary Harm. This obligation arises from the moment States know or should
have known about the harm or the risk thereof (Draft Articles on Prevention). It has been time and again proved that the spread of Covid-19 outbreak has not been curtailed by the origin State by exercising their best efforts or to the extent permitted by their capabilities.
b) Duty to Protect the Right to Life and Health
‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’ - the International
Covenant on Civil and Political Rights.
States not only have the ontological function to protect their citizens from entities or events that may harm them but also a binding legal duty to do so, codified in international treaties and crystallized in customary
international law. States have a positive (‘due diligence’) duty to protect and ensure the right to life, i.e. adopt the measures necessary to safeguard the life of individuals under their jurisdiction, and thus to do all they can to prevent such individuals’ life from being ‘avoidably put at risk’ (ECtHR, L.C.B. v UK, § 36; cf. also IACtHR, Ximenes-Lopes v Brazil, §§ 89-90).
Appropriate measures to address the general conditions in society not only includes the basic necessities for survival but also the positive duty to protect human life involves advance planning and immediate responses to prevent, stop or at the very least mitigate the spread of life-threatening diseases like COVID-19.
Article 12(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that, ‘[t]he steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for […] (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.’
Although the duty to ensure the right to health is one of ‘progressive realization’, it presupposes, an obligation to behave proactively and to put in place an effective system of urgent medical care which could cope with life-threatening situations such as an epidemic of the proportions we are experiencing now (General Comment n° 14, § 16).
c) Obligations Under the 2005 International Health Regulations (IHR)
The IHR specifies various due diligence protocols that a State needs to adhere to. The most relevant ones with respect to Covid-19 comprise of the duty to ‘develop, strengthen and maintain’ (the capacity) -
i) to detect, assess, notify and report’ manifestations of diseases or occurrences creating a potential for diseases (Article 5);
ii) to respond promptly and effectively to public health risks and public health emergencies of international concern’ (Article 13);
iii) the duty to assess whether the events described above may potentially constitute a ‘public health emergency of international concern’ and, if so, to notify — efficiently and in any case within 24 hours — the World Health Organization (WHO) of such assessment (Article 6(1)); and
iv) the duty to continuously share all relevant public health information with the WHO (Article 6(2)), even in case of unusual or unexpected public health events, as may be the case of the COVID-19 outbreak (Article 7).
Significantly, Article 44 establishes a general obligation to collaborate with other States to the extent possible in order to, among other things: detect, assess and respond to public health emergencies; develop, strengthen and maintain public health capacity; and mobilize financial resources. China’s delay in reporting this outbreak is in violation of its
obligation under the IHR and China could possibly be held liable for the same in the international regime.
d) Duties to protect persons in the event of disasters.
The rules under ILC’s 2016 Draft Articles on Protection of Persons in the Event of Disasters generally associated the concept of ‘disaster’ with environmental catastrophes such as a tsunami or a volcanic eruption, but nothing in the text of the Articles suggests that an epidemic is beyond their scope, provided that it satisfies the definitional requirements under Article 3(a) of seriously disrupting the functioning of society by resulting in widespread loss of life, great human suffering and distress, mass displacement or large-scale damage, regardless of its natural or man-made source.
It calls for an action to ensure preparedness, in particular, concerning
‘activities as contingency planning, stockpiling of equipment and supplies, the development of arrangements for coordination, evacuation and public information’ (UN Terminology definition, partly cited in the ILC Commentary, § 16). Particularly in the case of pandemics, the early notification can prevent the unrestricted movement of the infectious disease. China has been criticized by several countries for their delay in informing the international community about the Covid-19 cases on their
territory, which resulted in the delays in much necessary measures.
Conclusion
International law has not kept pace with the exponential growth in the
interdependence of nations. While acts or omissions of one State have immediate and concentrated impacts on others, as witnessed in the COVID-19 pandemic, international legal systems have not simultaneously evolved to address rights and responsibilities arising from these inter-linkages between nations.
Generally, international dispute adjudication is a consent-based system. The parties must agree that the dispute between them shall be submitted and adjudicated by an international tribunal, without which bringing in an international claim is onerous.
With COVID-19 the focus thus far is less on the question of whether what the State is doing amounts to a breach of an international obligation – the objective element of the internationally wrongful act. But the question is still one of proof. Therefore, it is only prudent to initiate an action against China when with authenticated evidence and substantial corroboration.
Sources
1. WHO Coronavirus Disease (COVID-19) Dashboard.
2. The Prohibition of Transboundary Environmental Harm: The ICJ and the No-Harm Rule, https://www.jus.uio.no/pluricourts/english/publications/2014/transboundary-environmentalhar.html#:~:text=The%20essence%20of%20this%20obligation,protection%20of%20the%20global%20environment.
3. Chris Buckley & Steven Lee Myers, As New Coronavirus Spread, China's Old Habits Delayed Fight, NY Times (Feb. 7,
4. Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak, Written by Talita de Souza Dias and Antonio Coco. https://www.ejiltalk.org/part-i-due-diligence-and-covid-19-states-duties-to-prevent-and-halt-the-coronavirus-outbreak/
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