Written by Fatema Lightwala [i] and Yashvi Maru [ii]
[i] Second Year, B.L.S L.L.B. SVKM's Pravin Gandhi College of Law, Mumbai [ii] Second Year, B.L.S L.L.B. Government College of Law, Mumbai
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The world order is witnessing an unprecedented meltdown due to the rapid spread of the novel coronavirus. The virus has exacerbated pre-existing political tensions emerging from China's exponential rise as a global superpower strong enough to threaten the pre-existing hegemony of the United States. The virus has brought the world to a standstill, with most countries under a lockdown. Nations have witnessed a high rate of pandemic-induced deaths that have severely burdened their health care systems and weakened their economies. As of 15 July 2020, 582,672 have fallen victim to the virus with 13,520,403 globally infected.  Even the Great Powers of the world are unable to counter the blow inflicted on the virus, as they continue to stand on shaky ground. The world economy has plummeted, with a global loss to the tune of 8.8 trillion USD as estimated by the Asian Development Bank (Reuters, 2020). Such colossal loss of life and capital raises one pertinent question: who is to be held accountable for this pandemic?
Chronology of events
The first case of the novel coronavirus was officially confirmed on 8 December 2019, when a seafood merchant from a wet market in Wuhan, China fell sick and displayed symptoms of “pneumonia of an unknown cause (PTI, 2020). Reports, however, suggest that signs of the spread of the virus had come to light in November, but this information was suppressed by Chinese authorities. The government categorically denied the existence of a newly emerging strain of the virus and destroyed the initial samples of testing conducted, rendering it impossible to track the source of the virus.
China did not notify the World Health Organization (WHO) until a few weeks had elapsed, nor did it take prompt domestic measures to curb the initial spread of the disease.
In an attempt to silence the whistleblowers, the Communist Party of China (CPC)threatened Dr. Li Wenliang, who provided the first alert on the development of the virus with legal consequences (Su, 2020). Eight other doctors were muzzled from issuing warnings (Griffiths, 2020). The State carried out extensive press censorship to downplay the number of infections, while simultaneously discouraging Chinese citizens to talk about the Wuhan virus on social media thereby limiting the information available in the public domain. The Chinese Government changed its narrative time and again to save its political reputation globally.
In early January, despite the spread of the virus throughout Wuhan, the WHO did “not recommend any specific health measures for travelers to and from Wuhan (World Health Organisation, 2020). It also advised nations against the application of any travel or trade restrictions on China so as to not hurt the trade ambitions of China. By mid-January, the virus had traversed across Thailand, South Korea, Vietnam among others, way before it lingered in the cities of Shanghai and Hong Kong. China had effectively curtailed domestic travel, while international travel remained operational, letting 5 million passengers go through unscreened (Pinghui, 2020). was only on 23 January 2020 that Wuhan, the epicenter of the virus, was put under a state-imposed lockdown.
On 14 January 2020, the WHO denied the possibility of human-to-human transmission despite mounting evidence, while simultaneously snubbing the Taiwanese government-issued government-issued warning from 31 December 2019 (Givas, 2020). After causing a gross delay of 7 weeks, on 30 January 2020, the WHO finally decided to declare the novel coronavirus a ‘public health emergency’, after negligently letting the virus spread across 25 countries, confirming more than 120 cases outside the borders of China. Yet again, WHO heavily condemned any travel restrictions enforced against China by several countries like India, Australia, and the United States. The international body criticized the restrictions by stating that they would arouse "unnecessary fear and stigma, with limited benefits to public health."
The month of February witnessed an upsurge of cases throughout Europe and the Middle East, with the number of infections surpassing 82,000 globally. Even at this point, no social distancing norms were advised by the apex international health agency.
It was only after a month on 11 March 2020, that the WHO broke its silence and declared COVID-19 to be a global pandemic. However, by then the virus had already found its way into the most remote corners of the world — putting an end to 4000 lives and leaving 1,18,000 infected (Sharma, 2020).
The People's Republic of China, a signatory to the WHO's International Health Regulations (IHR) 2005, was obligated under Article 6 of the IHR to notify the WHO within 24 hours about any event likely to endanger international public health at large. Article 7 further requires signatories to disclose all relevant data concerning the health crisis to the body, on a continuous basis. China not only concealed information about the virus and the extent of its severity from the WHO and the world community but also compromised the status of health experts who wanted to alert the world about the virus hence, flagrantly violating Article 6 and 7 of the IHR. Article 11 in turn imposed responsibility upon the WHO to disseminate such information received by it to the other nations so that necessary measures could be taken by them at national and regional levels to mitigate the damage (World Health Organisation, 2005). The WHO in connivance with China withheld the extent of the outbreak acting in contravention to Article 11.
The ‘no-harm’ rule is a widely recognized principle of customary international law whereby a state is duty-bound to prevent, stop and redress significant transboundary harm to other States or their populations originating from or crossing their territory or any other area under their jurisdiction or control (Coco, Dias, 2020).
Various health experts have shown concern over China's "wildlife markets" wherein exotic animals such as porcupines, snakes, rats, etc. are butchered for sale. These animals are kept in cramped, unhygienic conditions like cages, where viruses spread easily through customers and vendors. Reports suggest that various infectious diseases seen in the past such as the SARS epidemic have also originated due to close contact between humans and wild animals (Maroon, 2002). The operation of such open wet markets created conditions conducive to the breakout of the novel coronavirus, that is transmitted to humans through bats The occurrence of the coronavirus disease has taken place in less than twenty years after the SARS epidemic of 2004. This clearly shows how China has failed to learn lessons from its own past. Nevertheless, these markets have been reopened with similar unsanitary conditions, under which similar virus outbreaks are inevitable. Thus, China violated the ‘no-harm’ principle by not establishing sufficient health standards, food regulation, public health, and safety norms, leading to the breakout of the virus.
The willful omissions on the part of China and the WHO turned the pandemic from a mere possibility to a reality. thus they should be made answerable before the International Court of Justice (ICJ). A clear case of malafide conduct has been made out making them accountable to pay for the injuries.
The question that lies before the Court is that of causal nexus which has been established in the case of Tehran hostages (1980) and Corfu Channel (1947).  The ICJ held that once it had been proved that the state had failed to avert the damage by not taking necessary measures, in violation of its duty, all the damages are ascribable to the state in their entirety unless they cause was too removed from the event. In both these cases, the perpetrators were held liable due to failure on their part to mitigate the damage.
The running of the wild wet markets under potentially hazardous conditions made China prone to the outbreak of the disease. It is, therefore, imperative for the ICJ to rule a judgment holding China and the WHO to pay reparations and set a precedent if the world is to be saved from the scourge of such future pandemics at the behest of a nation.
An alternative would be to impose heavy economic sanctions, tariffs, and trade embargos on China as a consequence of its negligence.
In fact, reports have suggested that Japan is already encouraging its companies to move their manufacturing units outside mainland China by providing stimulus packages to domestic businesses of amounts up to $2.2 billion (Gupta, 2020).
Additionally, countries need to formulate new long term and short term economic policies to tackle the anticipated changes in global supply chains post-COVID-19. They need to focus on reducing dependency on China, and in turn, create self-sufficient economies or rely on other trade-partners. This can be achieved by increasing employment and productivity, promoting the development of indigenous technologies, encouraging investments in domestic infrastructural projects, and improving research and development.
“A person may cause evil to others not only by his actions but by his inaction, and in either case, he is justly accountable to them for the injury.”
China's opacity for the sake of saving its global reputation has led the world to suffer an enormous plight in terms of loss of lives, economic downfall, and mental agony. The blunders committed by the government, ranging from burying crucial information and intimidating the frontline doctors to delaying imposing a lockdown, have thwarted the efforts of other nations to curb the spread of the disease. Several questions have also been raised on WHO's credibility in discharging its duties as an international health agency, accusing the body of being overly sympathetic towards China and playing along with its malicious campaign.
However, the harsh truth remains that for now, the nations of the rely upon China and WHO for masks, antibody kits, and safety gears as well as routine updates on the global status of the pandemic. China is one of the largest exporters of medical supplies including drugs for Alzheimer's, HIV/AIDS, cancer as well as birth control pills. It is also the largest exporter of intermediary goods that help importing countries turn raw material into finished goods. If a vaccine is ever developed, China and the WHO will be vital players in its invention, production, distribution, and hence dependence on the two becomes inevitable. However, when the dust settles, nation-states should make sure that China faces suitable consequences, with the possibility of making appropriate reparations to the international community.
 Worldometers. https://www.worldometers.info/
 See Corfu Channel Case, (United Kingdom v Albania), Merits,  ICJ Rep 4 https://www.icj-cij.org/files/case-related/1/001-19490409-JUD-01-00-EN.pdf
Coco Antonio. Dias, Talita de Souza (2020, March 24) Part I: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak. EUROPEAN JOURNAL OF INTERNATIONAL LAW. https://www.ejiltalk.org/part-i-due-diligence-and-covid-19-states-duties-to-prevent-and-halt-the-coronavirus-outbreak/.
Givas, Nick (2020, March 20) WHO haunted by an old tweet saying China found no transmission of coronavirus. New York Post. https://nypost.com/2020/03/20/who-haunted-by-old-tweet-saying-china-found-no-human-transmission-of-coronavirus/.
Griffiths, James (2020, February 7) China's censors tried to control the narrative on a hero doctor's death. It backfired terribly. CNN. https://www.cnn.com/2020/02/07/asia/china-doctor-death-censorship-intl-hnk/index.html.
Kaplan, Fred (2020, April 17) The China Problem. Slate. https://slate-com.cdn.ampproject.org/v/s/slate.com/news-and-politics/2020/04/china-dependence-trade-coroanavirus.html
Lahmann, Henning (2020, May 7) Does China Really Owe the World Trillions of Dollars. LAWFARE. https://www.lawfareblog.com/does-china-really-owe-world-trillions-dollars.
Maron, Dina (2020, April 15) 'Wet markets' likely launched the coronavirus. NATIONAL GEOGRAPHIC. https://www.nationalgeographic.com/animals/2020/04/coronavirus-linked-to-chinese-wet-markets/.
Mathur, Somesh. Paul, Anusree (2020, June 2013) COVID-19 and India's trade dependency on China: should we continue our ties? The Economic Times. https://economictimes.indiatimes.com/news/defence/covid-19-and-indias-trade-dependency-on-china-should-we-continue-our-ties/articleshow/76351547.cms?from=mdr
Pinghu, Josephine Ma Zhuang (2020, January 26) 5 million left Wuhan before lockdown, 1000 new coronavirus cases expected in the city. South China Morning Post. https://www.scmp.com/news/china/society/article/3047720/chinese-premier-li-keqiang-head-coronavirus-crisis-team-outbreak.
PTI (2020, June 13) Countries prod firms to reduce dependency on china but find few takers. Business Standard. https://wap-business--standard-com.cdn.ampproject.org/v/s/wap.business-standard.com/article-amp/international/countries-prod-firms-to-reduce-dependence-on-china-but-find-few-takers.html
Reuters (2020, May 15) Coronavirus could inflict $8.8 trillion in global losses. The Economic Times. https://m.economictimes.com/news/international/business/coronavirus-could-inflict-8-8-trillion-in-global-losses-adb/articleshow/75749622.cms.
Sharma Mukesh (2020, March 21) How a global pandemic took shape, Hindustan Times. https://epaper.hindustantimes.com/Home/Index?htepaper=mobile&tstmp=1204202004&htepaper=mobile&tstmp=1204202004&eid=1&edate=21/03/2020&sedId=0
Su, Alice (2020, February 6) A doctor was arrested for warning China about the coronavirus. Then he died of it. Los Angeles Times. https://www.latimes.com/world-nation/story/2020-02-06/coronavirus-china-xi-li-wenliang.
The United States Diplomatic and Consular Staff in Tehran. (United States v Iran),  ICJ Rep 3. https://www.icj-cij.org/en/case/64
World Health Organization (2020, January 12) Novel Coronavirus- China. World Health Organization. https://www.who.int/csr/don/12-january-2020-novel-coronavirus-china/en/
World Health Organization ( 2020, January 12) Novel Coronavirus- China. World Health Organization. https://www.who.int/csr/don/12-january-2020-novel-coronavirus-china/en/.