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China’s Imputability for the Pandemic

INTRODUCTION

The outburst of coronavirus has resulted in more than 5.43 million confirmed cases along with 345,000 deaths around the globe. As of May 25, 2020 there are about 139,000 confirmed cases in India. By far this is the largest infectious disease outburst in the history of mankind and all of this maps down its origin to China. China despite being the country with the largest population has less than 90,000 cases and has managed to recover almost 94% of its corona affected population. This without a doubt raises a question, if this disease was an act of god or a well planned and executed strategy?

CHINA DELIBERATELY TRIED TO SPREAD THE LIFE-THREATENING VIRUS?

Questions raised on the Bio-Lab at Wuhan-

China’s tweet on the Jan 7, 2018 discussed about a bio-safety lab in Wuhan, which was experimenting with highly pathogenic microorganisms, and the very next year corona virus, a pathogenic microorganism found in Chinese bats wreaked havoc worldwide.[1] This virus was named as the Sars-CoV-2. Though there is no concrete proof to pin the blame on this Bio-lab, inferences and circumstances as pointed out below do raise fundamental doubts.

It is to be noted that the Sars-CoV-1 outbreak in 2002-2004 was traced to Horseshoe bats found only in Yunnan province of China.[2] Scholars have stated that it is unlikely that these horseshoe bats resulting in ‘Sars’ type viruses could have travelled 600 miles from Yunnan to COVID-19 originator Wuhan and thus, the virus could have only spread from the Wuhan lab that housed 605 bats in its vicinity.[3] This in itself perturbs our mind but the fact that this report by Chinese Scholars was immediately censored by their Govt. gives a glimpse of the doubt.

Further, only Wuhan was substantially affected by COVID-19 despite there being 75 trains to Beijing and 220,000 passengers travelling via metro every day from Wuhan to other parts of China; this raises questions of China using the virus for a Bio-War with the world. If China has indeed done so, it has disregarded the Geneva Protocol, 1925[4]and BTWC, 1925[5], both of which stress on prohibition on Bacteriological forms of warfare. To boot, The Right to Life of persons is being violated by overlooking Art.3 of UDHR, 1948[6] and Art.6 of ICCPR, 1972[7]

The strengthening accusations due to Logical disparity in China’s blame on the Italian military for the spread of the COVID-19

China in reply to all accusations for creating the virus stated that the participation of the Italian military in Military World Games, 2019 conducted in Wuhan was the cause of the spread of the pandemic. There is logical disparity in such submission.

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The Games were conducted from 18th-27th October, 2019 but the disease of unknown ethology was detected only by 31st Dec. The incubation period for the novel corona virus is 2-14 days. Yet symptoms emerged in Wuhan nearly 2 months after the games proving the fact that Italian military could have had nothing to do with it. It is an anomaly that China accused Italy for the spread of the virus yet just a month later organized ‘Hug a Chinese’ initiative in Italy.  Had China acted responsibly? The spread of the virus could have been cut by 95%. Thus, this raises substantial doubt whether China’s accusations on Italy are a mere garb of shielding its own wrongful actions?

China blocked discussion about the pandemic in the UN

History is witness to the fact that countries have vetoed motions in the UN to protect their own selfish interests. Be it vetoing a motion to allow entry of Mongolia into the UN or shielding the Syrian government during the Syrian Civil War, China has done it all. The veto of a discussion on the pandemic raises questions about China’s efforts to shield itself from being internationally liable for giving wrong information and being non-cooperative with the WHO.

VIOLATION OF CUSTOMARY INTERNATIONAL LAW

The jurisdiction for taking China to court lies in Art.75 of the WHO Constitution, 1946. The only prerequisite for it is to undergo a negotiation as stated in Art.56. According to the decision in Ukraine v. Russia[8], State would only need to satisfy the negotiation condition in order to sue any country before the Court; it would not need to go through the World Health Assembly. Thus, any country has the jurisdiction to sue China at the ICJ.

The violations under the WHO Constitution include Arts.63 and 64 which states that, a State is required to communicate to WHO all reports pertaining to health published in the State. China failed to provide data about the number of infected persons, which is important in determining the contagiousness. Art.37 emphasises that the Director General and staff should not be influenced but the Director General who won the elections with China’s backing is praising China despite its violations and this clearly hints towards ‘influence’. When there is evidence on record that China has failed to share data with WHO, the shielding of China by the Director General of the body raises reasonable doubts over the ulterior motive of both the WHO and China.

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China’s act of spreading wrong information about the virus by denying human to human transmission despite proof of 2000 medical staff contracting the virus[9] invokes violation under Responsibility of States for Internationally Wrongful Acts, 2001. Under Art.6(2) of the IHR China was obligated to provide timely, accurate  information to WHO but China failed to do so by evading WHO’s questions in late January, thereby violating its international obligations. Art.7 was also flouted when evidence regarding an event which could possibly constitute a PHEIC was not brought to the notice of the WHO and neither was all public health information provided.

Reliance can also be placed on Art.18 of the VCLT, 1969[10] which lays obligation under international law not to defeat the object and purpose of a treaty. China has inadvertently defeated the purpose of ‘attainment of highest possible level of health’[11] of the WHO.

Art. 7 of the Rome Statute, 1998[12] stipulating punishment for ‘crimes against humanity’ can also be claimed for deliberately spreading the deadly coronavirus. The responsibility of China is to provide full reparation for the injury caused by its act under Art.31 of the Responsibility of States for Internationally Wrongful Acts, 2001.

Thus, a plethora of International Treaties and Conventions have been violated by China.

CONCLUSION

It’s been almost 9 months since the pandemic spread worldwide. It has claimed numerous lives, separated people from their families, and left migrant workers and poor people without any means for their living. It has induced high levels of risk for doctors, public servants and other workers. All this due to a virus that was allegedly created in one country? The government of India should take necessary steps to ensure that China, who either started this warfare or spread this deliberately by withholding information pay for their deeds and ensure

svasti prajabhyah: pari-palayantham

nyayeana margena mahim maheesah:

go-brahmanebhya: shubamasthu nityam

lokah: samasthah: sukhino bhavanthu

SUGGESTIONS

It is not disputed that proof against China is negligent at this point and it is highly unlikely we would ever get concrete proof against it and thus, India should proceed towards taking its own countermeasures against China as an act of rebellion for the deliberate spread of the disease by delaying information.

Art.43 of IHR allows measures to be taken to combat the novel disease. In furtherance of the same, Ministry of Commerce and Industry under the framework of Foreign Trade Policy (FTP) read with Foreign Trade (Development and Regulation) Act, 1992 can independently impose economic and trade sanctions on China. Chinese companies rely heavily on Indian markets and if deterrent sanctions are imposed against China, India can show its dissent as well as move towards being a self-sufficient country.

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[1] People’s daily, China (@PD China), TWITTER ( Jan 7, 2018, 1:04 PM), https://twitter.com/pdchina/status/949907021851013120?lang=en

[2]McKie, Robin , Scientists trace 2002 Sars virus to colony of cave-dwelling bats in China, THE GUARDIAN,

(Dec 10, 2017), https://www.theguardian.com/world/2017/dec/10/sars-virus-bats-china-severe-acute-respiratory-syndrome.

[3]Ross Ibetsson, The possible origins of 2019-nCoV coronavirus, DAILYMAIL, ( Feb 16 ,2020, 13:22PM), https://www.dailymail.co.uk/news/article-8009669/Did-coronavirus-originate-Chinese-government-laboratory.html

[4] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian

Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, , https://www.refworld.org/docid/3ae6b36d2.html

[5]UN General Assembly, Convention on the Prohibition of the Development, Production and Stockpiling of

Bacteriological and Toxin Weapons and on their Destruction, (Dec 16, 1971), resolution 2826 (XXVI), https://treaties.un.org/doc/Publication/UNTS/Volume%201015/volume-1015-I-14860-English.pdf

[6]UN General Assembly, United Declaration of Human Rights(UDHR), 10th Dec 1948, General Assembly

Resolution 217-A,  www.un.org

[7] UN General Assembly, International Covenant on Civil and Political Rights (ICCPR), 16th Dec 1996,

General Assembly Resolution 2200-A, www.un.org

[8] Ukraine v. Russia Federation, 2017 I.C.J Reports (Apr.19).

[9] Sarah boseley, More than 1700 health workers infected by corona virus, THE GUARDIAN, (Feb 14, 2020, 18:03GMT),https://www.theguardian.com/world/2020/feb/14/more-than-1700-health-workers-infected-by-coronavirus-in-china

[10]United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, https://www.refworld.org/docid/3ae6b3a10.html

[11] WHO Constitution, Art. 1.

[12] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, https://www.refworld.org/docid/3ae6b3a84.html


Cite this article (The Bluebook 20th ed.)-

Mansi Sethiya Jain and Jahnavi S., China’s Imputability for the Pandemic, Ex Gratia Law Journal, (October 17, 2020), https://exgratialawjournal.in/blawg/covid-and-law/china-imputability-for-the-pandemic-by-mansi-sethiya-jain-and-jahnavi-s/.

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Author

Mansi Sethiya Jain
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.
Jahnavi S.
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.