C-19 damage: does international law hold any answers?

1 June 2020 by Rosalind English

What is international law for, if it cannot be enforced against the country responsible for breach? That is the question raised by a recent report documenting a series of steps by the Chinese Communist party to conceal from the World Health Organisation and the rest of the world the outbreak and human-to-human transmission of coronavirus. If we want a rules-based international order to mean anything, the authors of the report point out, it must be upheld.

In a world in which authoritarian states often act with impunity, it is tempting to forget that the rules-based international order places obligations on everyone. The Peoples’ Republic of China (PRC) is no exception to this rule. International law – in the form of Treaties, Covenants and Charters – places obligations on China, just as much as it does on the democracies of the West.

This paper identifies a number of possible legal avenues by which the wider world can pursue the PRC for the damages inflicted by its response to the COVID-19 outbreak.

I will attempt a summary of the report in the following paragraphs.

The WHO and the International Health Regulations 2005

The International Health Regulations (IHR) were adopted by the World Health Assembly, the decision-making body of the World Health Organisation (WHO). The IHR were designed to prevent the international spread of disease by placing obligations on states to prevent certain highly-transmissible diseases that were named and notifiable. The IHR were revised in 2005, in response to the 2003 SARS 1 outbreak, and entered into force in 2007.

Grounds for legal action

The censorship imposed on the “whistleblower” doctor Li Wenliang, now deceased, has received much press around the world, but that was just one incident in a series of acts of suppression and obfuscation set out in detail in the report, which documents the CCP’s negligence in the early stages of the outbreak and analyses how this contributed to the spread of the virus.

As a direct consequence of the CCP’s decision to not share information about the initial stages of the outbreak of COVID-19 from December 2019 – January 2020 the disease spread far faster than it would otherwise have done and reactions by countries globally were hampered. It is possible that – had accurate information have been provided at an early juncture – the infection would not have left China.

So what are the specific obligations under the International Health Regulations which China is said to have breached?

The IHR consist of ten parts, the second of which concerns information sharing and public health responses to emerging health events. They require that states monitor health events, notify the WHO of unexpected or unusual events, share full information, consult with the WHO, and continue to provide up to date information throughout an incident.

In particular, Articles Five to Seven in Part II of the Regulations place particular obligations on states with potential outbreaks.

Article Five requires that states maintain and implement the capacity to monitor “disease or death above expected levels”. Details that must be monitored and recorded include “clinical descriptions, laboratory results, sources and type of risk, numbers of human cases and deaths, conditions affecting the spread of the disease and the health measures employed”.

Article Six requires that States first notify the WHO of any health incident that satisfies a prescribed risk indicator mechanism. It then requires the State to provide “timely, accurate and sufficiently detailed public health information available to it” including each of the pieces of information set out in Article 5.

Article Seven extends the data-sharing obligations required under Article Six to any circumstances in which a State “has evidence of an unexpected or unusual public health event within its territory… which may constitute a public health emergency of international concern.”

A “public health emergency of international concern” is earlier defined by Article One as:
an extraordinary event which is determined, as provided in these Regulations:
(i) to constitute a public health risk to other States through the international
spread of disease and
(ii) to potentially require a coordinated international response.

Put simply, the IHR require a State to monitor and share data related to the spread, severity, and transmission of any pathogens that are potentially transmissible internationally.

These rules were revised and rendered more stringent after the outbreak of SARS 1 (caused by a pathogen similar and related to COVID-19) in South China in 2003.

China’s failure to report the SARS outbreak fully and in a timely manner in 2003 was directly responsible for its spread within the country and overseas. By the time it was contained, the virus had spread to over 8,000 people worldwide and killed almost 800.

At this stage, SARS was a new pathogen and not listed among notifiable diseases under the existing IHR. In response, a new set of International Health Regulations were implemented in 2005; these were intended to increase the level of reporting detail on an outbreak of disease that WHO member states were obliged to provide.

It might be possible, the authors of this report suggest, that a case may be made that in its handling of the COVID-19 outbreak, China deviated from its obligations under the IHR. There is one major obstacle to such a step. At this stage the WHO, which is of course the international body responsible for enforcing the IHR, has given no indication of an intention of taking such measures.

The authors of the report acknowledge that levelling a claim of dispute under the 2005 International Health Regulations would be “unprecedented”. In any event China is one of the few countries, along with the US, which have not accepted the jurisdiction of the International Court (ICJ), so it would always be open to the CCP to reject that court’s intervention. The authors suggest that in the event of such a rejection, a possible avenue would be Article 75 of the WHO constitution that provides that any dispute concerning its rules could itself be referred to the ICJ.

[News just in – not in the report – is that anyone doing editing or language work for the United Nations has been given a new practice direction when discussing the pandemic. “Covid-19” is an ellipsis of “Coronavirus disease 2019”. The new UN practice is to drop the reference to the year 2019 so that it is thought of as a phenomenon of 2020.]

Other legal avenues for holding China to account

The glacial pace of ICJ litigation probably makes it is a bad fit for the current crisis. Another avenue suggested by the report is the World Trade Organisation (WTO). Its mechanisms are not limited to trade related disputes and they are relatively expedient.

Other avenues of binding dispute resolution to which China is subject are those created by Bilateral Investment Treaties (BITs). BITs are bilateral agreements made by nations in order to facilitate mutual investment. Many of them contain compulsory dispute resolution mechanisms. Although China has no BIT with the US, its Bilateral Investment Treaty with the UK contains a dispute resolution under provisions which lead to compensation

The treaty includes provisions against preferential treatment for domestic entities and requires compensation for destruction inflicted by states. In order to make use of such a treaty with respect to the COVID-19 outbreak, any prospective plaintiff would first need to establish either damage by the state such that it is precluded by the Treaty language or that Chinese firms had – without good cause – preferential treatment to them.

The United National Convention on the Law of The Sea – prospective plaintiffs would need to argue that China’s failures in responding to Covid-19 breached some aspect of maritime law. China refuses to recognise any ruling by UNCLOS, but it “offers a possible route to draw attention to China’s negligence”.

Chinese Courts: unlikely, since litigation that runs against the interests of the CCP is generally unsuccessful. There are some Hong Kong Special Administrative Region cases for breach of health rights that could “form the backbone of a claim made in the Hong Kong Courts”. These could form the basis for many lawsuits across the world against regional and national governments, again with little prospects of success but with the important goal of identifying institutional failures in this pandemic:

the Clean Air Foundation Ltd brought suit against the government of the Hong Kong Special Administrative Region for failure to adequately improve air quality. The claimants argued that the government’s alleged failure breached both Hong Kong Basic Law and the “Right to Life” under the International Covenant on Economic and Social Civil Rights. While the case was dismissed, the Court did rule that it was arguable that the right to life as provided for in Article 28 of the Basic Law (Hong Kong’s written constitution) and Article 2 of the Bill of Rights could extend to air pollution and impose a governmental duty to combat air pollution. Similarly, the Court held that it was arguable that the provision for the right to health in Article 12 of the ICESCR could create the same governmental duty.

English and Welsh courts: it seems far fetched, but in principle a case could be made vis a vis disinformation in the UK that led to personal injury or damages that would be justiciable within the UK courts. The PRC would first need to submit to the jurisdiction of the UK courts by written agreement (as per the State Immunity Act 1978).

US Federal Courts are a far more promising route, note the authors, as they have long been used by individuals and corporation; indeed the report cites a class action lawsuit that was filed challenging the Chines government’s handling of the Covid-19 outbreak at the Florida District Court.

Interesting though this is, there are state immunity obstacles that will almost certainly stop this lawsuit in its tracks.

ICJ advisory opinion: a referral premised upon accepted facts to the ICJ could be made to ascertain whether a breach of international law had occurred.

The report’s conclusions

Together, the G7 will spend more than £3.2 trillion (US$4 trillion) tomeet the direct economic cost of COVID-19, including health and social security, as well as underwriting loan guarantees and broader financial support to prevent the global economy from entering a period of deep recession.

And, as the authors remind us, given how many countries other than the G7 (and Australia and Poland) will be affected by COVID-19, the figure of £3.2 trillion may be eclipsed several times over.

The report emphasises that it is vital for the future of the rules-based international system that China is not able to escape the consequences of its actions in response to this pandemic.

If the IHR were designed to prevent such an eventuality and the WHO’s role is to ensure that this happens, neither seems fit for purpose.