China, international law, and COVID-19

There is mounting evidence, from whistleblowing doctors to official studies, that the Chinese government withheld from the world for weeks key information about the COVID-19 outbreak in Wuhan—until it was too late.

As early as Jan. 2, the Chinese government already knew that a new coronavirus was responsible for a treatment-resistant illness among a rising number of patients, and that it may be transmitted by humans. Yet it chose to keep that under wraps until Jan. 21, when it finally informed the World Health Organization of its true nature. That delay cost many countries time they needed to prevent the deadly contagion from spilling over into their own borders.

Under the law on state responsibility, China’s suppression of crucial information about COVID-19 is a violation of its international obligations under the 2005 International Health Regulations (IHR), a treaty established under the auspices of the WHO.

The treaty was drafted to help the international community combat the spread of infectious diseases. It applies to any illness “that presents or could present significant harm to humans,” or to any “public health emergency of international concern.” The latter refers to any “extraordinary event” that may pose a “public health risk to other States through the international spread of disease” and that may “potentially require a coordinated international response.”

Under Article 6 of the treaty, China — a member state — has the duty to inform the WHO about the viral outbreak within 24 hours of determining its nature. Article 7 also requires China, after notification, to continue to provide “timely, accurate and sufficiently detailed and available public health information” about it.

In the Corfu Channel case (1949), the International Court of Justice (ICJ) held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other states.” China is duty-bound to ensure that individuals within its territory do not cause harm to the rights of other states. Moreover, where the harmful acts were committed by persons exercising public authority, the acts are attributable to the state.

China is responsible for its public officials who censored doctors about the virus—a repeat of its immediate response to the SARS epidemic in 2013, in which, in the words of the Smithsonian magazine, “Chinese apparatchiks initially tried to cover up the epidemic, creating a worldwide scandal.”

As it is, the COVID-19 pandemic has already spread to more than 157 countries and regions around the world, with at least 217,247 confirmed cases and 8,784 deaths, causing unprecedented disruptions in the economic, political, and social life of billions of people.

Whenever a state commits internationally unlawful conduct, it must pay reparations to the injured parties for the damage they suffered. Thus, China may be liable to pay reparations over its failure to promptly notify the WHO about the outbreak.

Reparations involve restitution, and where that is no longer possible, the offending state pays compensation “for loss sustained which would not be covered by restitution in kind or payment in place of it” (Chorzow Factory,1927). Such assessment of damages may also come with an award of satisfaction, or a formal apology and an assurance that its unlawful conduct will not be repeated (LaGrand Case, 2001).

A claim for damages requires a causal link between the alleged breach of an international obligation and the damage suffered by the injured states. Under the “sufficiently direct and certain causal nexus test” established by the ICJ in the Bosnian Genocide Case (2007), an injured state must establish from the case as a whole and with a sufficient degree of certainty that the pandemic would have been averted had China complied with its treaty obligations.

Article 56 of the IHR (2005) requires an injured state to first explore good offices, mediation, or conciliation, to settle any dispute involving treaty interpretation and application. Failing that, the parties may refer the dispute to the WHO director general.

Or, parties to the dispute may agree to compulsory arbitration. Which injured state will dare to be the first to hale mighty China to the arbitration court? To begin with, will China accept compulsory arbitration? Nevertheless, an injured state may make the necessary first step to claim reparations from China through good offices, mediation, or conciliation.

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Romel Regalado Bagares, is an alumnus of UP and the Vrije Universiteit Amsterdam.