With the ongoing COVID-19 pandemic, the world is witnessing many firsts: closed cities, grounded flights and government-imposed lockdowns have become the new normal. As countries continue to navigate this rapidly evolving crisis, analysts have increasingly called for the need to hold China responsible for the pandemic, and seek reparations for the damage done to countries. In a way, this would also be a first; no country has been held responsible under the international legal framework for an infectious disease outbreak.
To be sure, countries — in their official capacity — are yet to invoke any international judicial body, or issue a statement framed under international law to condemn Beijing. Individual lawyers, however, have come forth to file actions against China, while international law experts have extensively written about this. Most of these claims are based on China’s cover-up of the virus, and rely on theories that incorrectly label it as a biological weapon. In this backdrop, this commentary aims to analyse each of these grounds and will attempt to assess whether they are legally tenable or not.
Suing China in domestic courts will not work
Class action lawsuits have been filed against Chinese authorities across various states in the US (Nevada, Florida, California and Texas) to hold it liable for operating bio-weapon laboratories and carrying out “ultra-hazardous activities” in Wuhan. While the Nevada, Florida and California complaints seek unspecified monetary damages, the Texas lawsuit seeks $20 trillion in damages — an amount that is more than the entire GDP of China.
A fundamental problem that strikes at the root of these complaints is that the named defendants, such as China, are — evidently — a foreign government. Under international law, the customary rule of state immunity establishes that one sovereign state cannot exercise jurisdiction over another. This rule is based on the principle of the sovereign equality of states, which is fundamental to the basis of the existing international order. It is also embodied in the US’s 1976 Foreign Sovereign Immunities Act (FSIA), which recognises a few limited exceptions to this rule — none of which have been established in the complaints.
The UN Human Rights Council is the wrong forum
In April 2020, the International Council of Jurists, headed by Indian jurist Adish Aggarwala requested the UN Human Rights Council (UNHRC) to make China pay “exemplary damages” for its “grave offences against humanity.” The complaint alleges that China violated human rights laws (right to health), its authorities where negligent and incompetent, and that the coronavirus is primarily a biological warfare conspiracy to catapult Beijing to power.
The UNHRC, however, is not a judicial body and cannot order Beijing to pay exemplary damages. The 47-member inter-governmental body is “responsible for strengthening the promotion and protection of human rights” and has powers to issue non-binding recommendations and undertake capacity building initiatives across countries. The UNHRC complaints procedure invoked here, gives it limited powers to review and monitor a situation, and recommend technical cooperation and advisory services to the state concerned.
For seeking a remedy, the complaint relies on a document that prescribes basic principles and guidelines on the right to remedies and reparations for victims of gross human rights violations. These guidelines are non-binding, and are meant to function as a guide for governments to adopt appropriate mechanisms in their domestic systems. It does not create new international or domestic obligations, and does not empower the UNHRC to grant damages.
COVID-19 was not engineered, and can’t satisfy jurisdiction requirements of ICC
The International Criminal Court (ICC) is an international judicial body that has the jurisdiction to prosecute individuals charged with grave crimes of concern to the international community. Two communications by a US national (here) and an Indian national (here) have been put forth to the ICC. The former argues that COVID-19 “was engineered in the Chinese military's laboratory or laboratories,” and its release is a crime against humanity and an act of genocide. The latter, aims to hold Xi Jinping responsible for criminal negligence, willful suppression of information and “treason against humanity.”
Two issues arise here: first, whether ICC’s jurisdiction can extend to Jinping when China is not a party to its foundational Rome Statute, and second, if the pandemic satisfies the ICC’s definitions of genocide and crimes against humanity. With respect to the former, the US complaint relies upon a March 2020 judgment of the ICC’s Appeals Chamber, which allowed Fatou Bensouda — the ICC’s prosecutor — to investigate war crimes in Afghanistan. This investigation extended to examining the abuses committed by US military forces and the Central Intelligence Agency — a move, which Washington condemned as overreach since the US is not a party to the ICC.
However, the ruling of the ICC’s Appeals Chamber on the matter was more nuanced. While allowing the investigation, it only sought to overturn the faulty reasoning adopted by the pre-trial chamber before it. In its order, the pre-trial chamber had readily acknowledged that the investigation request met all requirements as to jurisdiction and admissibility, but turned it down stating that it would not “serve the interests of justice” since the “prospects for a successful investigation and prosecution were extremely limited.” Since an investigation is a pre-trial procedure, the question of whether the ICC will have jurisdiction over nationals of non-member states, would be bound to come up during the trial stage.
On the second issue, it is highly unlikely that claims of suppression of COVID-19 could satisfy the strict definition criteria of genocide (acts committed to destroy whole national, ethnical, racial or religious groups), or crimes against humanity (attacks such as murder, enslavement and torture directed against civilians). The assertion that COVID-19 is engineered is dubious at best, since its natural origin has been scientifically proven, and endorsed by members of the US intelligence community. The ICC, again, is not the right forum for this action.
WHO rules violated by China But what of state responsibility, reparations?
The 2005 International Health Regulations (IHR) is a legally binding document adopted by WHO member states and aims to provide a public health response to the international spread of disease. It calls on states to notify the WHO within 24 hours of events that constitute a public health emergency of international concern (Article 6). Analysts (here and here), argue that due to China’s deliberate inaction to notify the WHO, it has breached an international obligation and committed an internationally wrongful act, under the 2001 Responsibility of States for Internationally Wrongful Acts. Since the “wrongful act” is attributable to China’s state functionaries, Beijing should bear legal responsibility and pay full reparation to injured states.
A crucial question to the success of this claim is whether the breach of the IHR amounts to a breach of an international obligation. International obligations cover both treaty and non-treaty obligations. The IHR was adopted by the WHO’s World Health Assembly and differs from a “treaty”, which comes into force through a rigorous process of signature and ratification. Even if it is not a treaty, countries — through state practice — have demonstrated a lack of capacity and political will to implement IHR obligations. By 2012, only 21% of WHO members states had fully implemented the positive commitments under it. Without compliance from countries, the IHR’s lofty goals remain a paper tiger at best.
David Fidler, in his analysis argues that states have not been keen on invoking state responsibility for infectious disease outbreaks. Pathogens can originate in any country, thus creating a reciprocal interest in refraining from adversarial legal processes. Should another country find itself in China’s position in the future, they would not want to face trillion dollar lawsuits for volatile, deadly and invisible pathogens.
The requirement of causality is perhaps the biggest impediment to linking China’s acts and omissions to state responsibility. Despite the declaration of COVID-19 as a public health emergency of international concern by January end, the responses of several countries to the pandemic were tardy and delayed. Because of this, it becomes difficult to untangle the consequences of Beijing’s actions from those attributable to the inaction of respective national governments.
On the question of whether China can be taken to an international adjudicatory body over violating the IHR is, again, difficult to establish. The IHR does not contain any provisions to enforce compliance, monitoring or supervision of its obligations. Article 56 of the IHR contains a dispute settlement provision, but invoking this mechanism will require Beijing’s consent to proceed. Under the WHO’s Constitution, Article 75 gives jurisdiction to the International Court of Justice to decide on any question or dispute concerning the Constitution. However, it is unclear if this can be extended to apply to the IHR.
Looking beyond legal action
What interest does a lawsuit against China serve in this case? Because, a negative fallout of setting such a precedent under state responsibility will disincentivise countries from sharing information regarding future disease outbreaks. States are the primary international actors, and they naturally prioritise their national interests over global ones. Any action that could invite harm to their national priorities — either through travel bans or lawsuits — would be swiftly abandoned to protect their sovereignty and integrity.
In this context, rather than legal action, it may be more useful to discern the outstanding issues with global health governance, and revamp WHO’s powers to improve surveillance and compliance with reporting obligations. More importantly, China’s initial cover-up is telling of how the existing mechanism fails to incentivise countries to be more forthcoming in notifying disease outbreaks. If Beijing’s suppression is established beyond reasonable doubt, statements to censure its conduct should be made; but they need to be complemented with efforts to build a more transparent, cohesive and collaborative model to monitor and respond to disease outbreaks.
The article first appeared in ORF.