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COVID-19, a deadly disease that emerged from China, has created an unprecedented situation that has displaced and disrupted humankind and its activities globally. As of May 14 2020, COVID-19 has killed more than 300798 people and infected nearly 4413597 persons across the globe. Recently, on April 3, 2020, a complaint against the People’s Republic of China was jointly filed by the President of International Council of Jurists (hereinafter “ICJ”) and Chairman of All India Bar Association Dr. Adish C. Aggarwala before the United Nations Human Right Council (hereinafter “UNHRC”) for the violations of international obligations as provided under Article IX, Section 20 of Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violation of International Human Rights and serious violations of International Humanitarian Laws. The complaint sought UNHRC to direct the Government of the People’s Republic of China to adequately compensate the international community. This paper seeks to analyse the basis of such complaints and whether China should be held liable for breach of its international obligations and consequently make reparations for the same.
Sufficiency of evidence presented before the council
In the given submissions, the evidence that has been provided is solely based on media reports and is circumstantial, wherein the conclusion is traced from a series of facts. However, this evidence is in direct contradiction to the statements released by Chinese officials. The ICJ in the Genocide case mentioned the criterion over which probative value of such evidence will hinge, and noted that an essential part of such evidence is the source of the evidence. In the instant case, the evidence includes media reports of agencies based in the USA, such as New York Times, Washington Post, etc., which have a high probability of being partisan rather than neutral in this case due to the strained relationship between the United States and China. Therefore, the authors believe that in terms of source, the credibility of this evidence is questionable.
In the Island of Palmas Arbitration, it was iterated that the degree of proof of attribution required from circumstantial evidence would vary with respect to the seriousness of charges. Considering the seriousness of charges in the instant case, the degree of proof required for attributing the commission of these breaches from circumstantial evidence is not met as there is no concrete evidence against China and the circumstantial evidence is solely based on reports by media outlets.
Breach of International Obligations
In the submissions presented before the UNHRC, it has been alleged that China has violated its treaty obligations, which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and the International Health Regulations. Since it is necessary to establish breach of international obligations before making a claim for reparations, it becomes important to distinctly analyse the credibility of such allegations:
Right to Health
According to the complaint, China has violated Article 25(1) of Universal Declaration of Human Rights (UDHR), as the given article obligates Chinese Government to ensure that it does not interfere, directly or indirectly with the right to health of the people. A similar provision is reiterated in Article 12 of the International Covenant on Educational, Social and Cultural Rights (hereinafter ICESCR), which recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and obligates all the parties member to the covenant to maintain it.
China has been alleged of violating the said provisions on the grounds that China deliberately hid and censored information of the potential outbreak of the virus from the general public as well as health authorities. It has been submitted that Chinese government failed to create a proper mechanism to deal with the epidemic and alert the concerned authorities.
It must be taken into account that there is no objective criterion for determination of the violation of the aforementioned provisions (provisions concerning Right to Health in UDHR and ICESCR), as no concrete proof for it exists. Further, the evidence suggesting that China deliberately censored the information (which is indirect), contradicts direct evidence which maintains that by government orders, the Chinese state shared the genome sequencing to show the strain of the virus on January 10, 2020 ( much before the virus had caused any significant harm globally). The genome sequencing suggests that the trace of the virus shows its origination from wet markets, as has been previously acclaimed by China. Moreover, China also took preventive measures a long time ago as it advised all the travellers to Wuhan to avoid contact with ‘living or dead animals, animal markets, and sick people’.
With China informing the WHO about the virus as soon as it realized the dangerous nature of the virus, that is, on December 31 2019 itself, it could be concluded that China did not deliberately censor or hid information from the WHO and the international community.
Alternatively, Right to Health does not suppose extra territorial application as the State’s obligations extended under the Covenant only apply to territories and populations under its effective control. The ECHR has stated three exhaustive examples for which extraterritorial jurisdiction could be assumed, i.e., use of force by agents of a state, military action, and military occupation. The acts of China, which allegedly include withholding important information from the international community, do not fall into any of the three aforementioned categories, and therefore, Right to Health does not assume extra territorial application by the virtue of ICESCR and UDHR.
Therefore, China cannot be held liable for violation of Article 12 of ICESCR and Article 25(1) of the UDHR.
Customary International Law
The Right to Health requires the states to take necessary measures arising from legal obligations, and thus expects them to take appropriate steps towards the full realization of everyone’s right to the enjoyment of the highest attainable standard of physical and mental health. There is little domestic or international jurisprudence on the implementation of the right to health under Customary International Law, and therefore right to health does not fall within the rights protected under customary international law.
Assessment and Investigation of Unusual or Unexpected Events
In the submissions, it has been argued that there was a violation of International Health Regulations (hereinafter IHR) under Article 6 and 7 of the IHR, wherein it is required that each State party has to assess events or evidence of events within its territory that may constitute public health emergency of international concern, and notify WHO within 24 hours of assessment.
Even though the first symptom of “pneumonia like illness”, which was consequently named ‘corona virus’ was discovered much before 31st December 2019, the public health impact of the event was not seen to be serious as the nature of the virus was undiscovered and very few human cases had been identified with the population at risk not vulnerable. Consequently, with the undiscovered nature of the virus, there was no significant risk of international spread of the virus as the event was not caused by environmental contamination that has the potential to spread across international borders and the event was not in an area of intense international traffic with limited capacity for sanitary control or environmental detection or decontamination. Therefore, there lies subjectivity upon the host state in giving notification and consultation to countries that can be affected by the virus. It could therefore be said that China declared the virus as an event of public health emergency, after necessary investigations were carried out and the state felt that it had an obligation to inform the requisite authorities about the disease.
Further, considering the fact that the decision instrument for the assessment and notification of public health emergency provided under Annexure 2 of IHR is not binding in nature, there is no legal obligation on China to inform the requisite authorities about the unusual or unexpected event on an objective basis. This can arise only when China feels that the particular event may lead to an international health concern.
The Question of Reparatory Measures
Has China committed an Internationally Wrongful Act?
In the submissions, it has been provided that China is responsible for Internationally Wrongful Acts under Responsibility of States for Internationally Wrongful Acts, 2001. Article 2 of ARSIWA states that an internationally wrongful act is committed when the conduct of a State consists of an action or omission that breaches an international obligation of the state, over which, responsibility could be entailed. Article 2(b) explicitly maintains that the action or commission must constitute a breach of international obligation of the state, wherein, the state by acting through its representative and agents, engages in acts that are incompatible with its international obligations. However, as has been proven above, China has not breached its international obligations and therefore, no state responsibility could be entailed.
Is China liable to make Reparatory Measures?
Article 36 of ARSIWA maintains that compensation can be sought by an injured state for an internationally wrongful act committed against it, if reparation is not possible.
The submission before UNHRC demands China to adequately compensate other nations for the serious physical, psychological, economic and social harm that these States have suffered due to the spread of COVID-19.
However, China is not liable to make reparations in any form as it has not breached its international obligations and has not violated any human rights instrument, which is a pre-requisite to make reparations.
(This post has been authored by Rounak Doshi and Vibhu Pahuja. Rounak and Vibhu are second year law students at National Law Institute University, Bhopal.)
Cite As: Rounak Doshi and Vibhu Pahuja , ‘The Reparations Claim against China: A Proposition without a Base ‘ (The Contemporary Law Forum, 3 June 2020) <http://tclf.in/2020/06/03/the-reparations-claim-against-china:-a-proposition-without-a-base/ > date of access.