China’s Responsibility for COVID-19 Outbreak: An International Law Perspective

Author’s Notes: This article is a pure works of research and do not have any intention to undermine certain racial group

Introduction

The existence of the Coronavirus Diseases (COVID-19) was previously acknowledged on an early stage by 33 year old ophthalmologist at Wuhan General Hospital, Li Wenliang. He was credited as the first medical professionals who discovered the indication of the virus on December 30th from an unusual cluster of pneumonia cases that was originated from patients who simultaneously worked at the same place and was immediately aware towards the spectre of the SARS virus of 2002-03 which resulted victims of more than 700 people.[1] An instant announcement was made towards his college alumni addressing the odd medical case even though it wasn’t identified yet. The post went viral and on January 3rd, he was summoned by the police station who rebuked him for spreading rumours online and he allegedly had to sign a statement acknowledging his “misdemeanor.”[2] Unfortunately, Li Wenliang was contracted by the virus itself after handling a patient which without any of his concerned was also contracted by the virus itself. It came to a surprise where weeks later, China's Supreme Court defended him and other "rumormongers" by saying, "It might have been a fortunate thing ... if the public had listened to this 'rumor' at the time.”[3] To clarify this issue, the outbreak was originated in Wuhan, China where most likely they started from a poorly regulated wet market specifically the Huanan Seafood Wholesale Market in Wuhan which allegedly selling wildlife products,[4] similar to the type of location the pneumonia patients sited at for their work. In order to dissect this situations, we shall relied on old maxim by Roman law called “sic utere tuo ut alienum non laedas,” meaning that every States has an obligations for not knowingly allowed its territory to be used for a conduct which may resulted harm to the other States.[5] This maxim later developed to the modern world as “no-harm principle” and it is evident in several international law cases and instrument.[6] Accordingly, the Chinese government is responsible for internationally wrongful acts due to the conduct abuse of rights regarding human rights and wildlife protection in its territory, which eventually violates the “no-harm principle” since its negligence contribute to the spread of COVID-19 around the world.

Violations on Human Rights

In regards with the attitude of the Chinese government, there are certain violations on human rights namely against the freedom of expressions and the rights to health. Quoting from Olivier De Schutter, State has an obligations to respect, protect and fulfil the enjoyment of human rights and freedom each people.[7] As described in the case of Center for Economic and Social Rights v. Nigeria, this three obligations requires States to refrain from interferring the people, protect the right-holders by enforcing the law and provision of effective remedies, facilitate real actualization of rights and freedom.[8] In regards with freedom of expressions, it is not only politically useful but is indispensable to the operation of a democratic system.[9] It is also important to ensure an individual has the freedom not only to express his or her own thoughts, but also to seek, receive and impart information and ideas of all kinds.[10] Consequently, there is a dual aspect to freedom of expression, which requires no one be arbitrarily limited or impeded in expressing his own thoughts and it implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.[11] Given the occupation of Li Wenliang itself, amplified special responsibilities for him to exercise his freedom of expressions in order to warned people about the unknown diseases (later identified as COVID-19) and this acts shall be protected by the government.[12] Moreover, the Chinese government also has the obligations to ensure the enjoyment of rights to health by taking any steps to prevent and control of epidemic, endemic or other diseases[13] as reasonable foreseeable threats to society.[14] However, the government conduct by silencing Li Wenliang’s crucial information and played down the threat that was caused by the diseases reflected that China has failed to respect, protect and fulfil freedom of expression and the rights to health due to lack of due dilligence handling the situations.[15] Therefore, the Chinese government shall be held responsible since has failed to comply with their international obligations.[16]

Violation on Protection of Wildlife and Biodiversity

The goals of “no-harm principle” is enunciated in Article 3 Convention on Biological Diversity (CBD).[17] In order to achieve this goals, CBD obliges State Parties to conduct identification, monitoring and environmental impact assessment (EIA) in order to conserve the surrounding nature.[18] However, Huanan Market in Wuhan, the likely source of the COVID-19 is publicly known and viewed for selling, trading and slaughtering animals for consumption or perhaps other uses, including endangered species which needed wildlife and biodiversity protections. The market conditions is very appaling since they put people with live and dead animals in constant close contact for daily trade consumption and this has created a chain of infectious diseases it causes an outbreak. From this it is suffice to say that the Chinese government did not comply with its treaty obligations, since failed to identify and monitor the effects of processes and activities having or likely to have significant adverse impact on the nature that should be maintaned and organised.[19] Moreover, the Chinese government also failed to conduct EIA since did not promote exchange of information and notification about possible transboundary harm to neighbouring States in regards with the outbreak.[20]

In addition to this issue, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is aware within the commentary given by the media that suggests the possible links between human consumption of wild animals (from the market) and COVID-19. Accordingly, the Secretariat has issues a Notification to Parties No. 2020/018 concerning China’s urgent measure regarding wildlife trade regulation on 5 March 2020.[21] It stated that China’s Standing Committee of the National People’s Congress adopted a decision to eliminate the consumption for food of wild animals to safeguard people’s lives and health. Afterwards, the Secretariat continues to work with source, transit and destination countries through compliance assistance and enforment activities, including with the partners of the International Consortium on Combating Wildlife Crime (ICCWC).[22]

A Call for International Litigation

The missteps that has been done by the Chinese government had resulted into a severe outbreak where reported cases of their citizens from many States in relation with COVID-19 where “public health emergency of international concern” was officially declared by the World Health Organization (WHO).[23] Therefore, it could be concluded that China has conducted internationally wrongful acts by abandoning its international obligations mentioned above and rises China’s responsibility to provides reparation for injured States.[24] There are three form of reparation in international law namely restitution, compensation, and satisfaction.[25] In this case, compensation is suitable form of reparation to be applied since it is materially impossible to restore the conditions of other States affected by the spread of COVID-19[26] considering different number of deaths and economical impacts of each States. In this troubling times, we need to enforce international legal system against China since they already playing “blame-game” on how and where the virus was composed from and this has portrayed an underlying diplomacy with other States (in this case United States of America).[27] This eventually worsen the situation because when seen logically, both States have the broadest chance rationing the aid that each nations that are affected by the pandemic to withstand the fundamental of every nations. The most appropriate forum to settle this issues is International Court of Justice (ICJ). As seen at its Statute, ICJ has ratione materiae jurisdiction to settle a breach of international obligations between States.[28] It is proven to be effective to enforce State responsibility as evident in ICJ cases between Myanmar v. Gambia which successfully suspend (at least temporarily) military opression for acts of genocide against Rohingya until the judgment of the Court are given.[29]

Conclusion: An Advice to Chinese Government

Overall the government should be more transparent towards the truth regardless if massive shock and panic is going occur,[30] but the society has the rights and the needs to know the current situation coherently since the information delivered by Wenliang itself are intended to bolsters social need for health,[31] the people wouldn’t take an immediate precautionary step in order to protect themselves from the outbreak and this may lead to the number of cases to outburst and even worse, immortality rate may fatally rise. Secondly, the government has to immediately deal with the likely source of the outbreak to create prevention for the outbreak to worsen, one of the crucial action that the Chinese government has shut down thousands of wet-markets and temporarily banned wildlife trade.[32]

Furthermore, the Chinese government needs to consider the inputs that have been given by organizations around the world that urges China to make the ban towards the wildlife trade to be permanently banned considering that Chinese social media, in particular has been flooded with petitions to ban it for good this time. Regarding the petitions and the inputs that have been given, China reportedly amending the Wildlife Protection Law that encouraged wildlife farming decades ago and unless these actions lead to a permanent ban on wildlife farming, chances for outbreaks like this are mostly likely to occur again. If further actions in handling the wildlife farming and trading are not being executed ethically and fairly, even with the most powerful measures, it will be a tough job to combat the impact of the virus outbreak towards the State’s economy where unemployment is expected to rise sharply and it is the government’s duty to mitigate such issues by temporarily reinforce unemployment insurance in order for the citizens who aren’t working in the medical industry (considering that the medical industry is the industry that is currently rapidly moving compared to the other industries that has their activity to be alleviated in order to stop the spreading of the outbreak) to survive the outbreak itself. Lastly it is also subsequently crucial for the government to hear the voice of the people and at least accommodate their voices because this may also give the government clues in withstanding a strong powerful mechanism in managing such situations.

[1] https://www.economist.com/obituary/2020/02/13/li-wenliang-died-on-february-7th

[2] https://edition.cnn.com/2020/02/08/opinions/coronavirus-bociurkiw/index.html

[3] Ibid.

[4] https://www.businessinsider.sg/wuhan-coronavirus-chinese-wet-market-photos-2020-1?r=US&IR=T

[5] Brunnée, Jutta. Sic utere tuo ut alienum non laedas. March 2010. Max Planck Encyclopedia of Public International Law [MPEPIL].

[6] Corfu Channel Case (United Kingdom v. Albania). Merits. International Court of Justice (ICJ). (9 April 1949). p. 22; Trail Smelter Arbitration Award (1941). p. 1964. Convention on Biological Diversity. 1760 UNTS. (1993) [hereinafter: CBD]. Art. 3; Charter of United Nations. Art. 74

[7] De Schutter, Olivier. International Human Rights Law.Cambridge University Press. (2019). p. 242

[8] African Commission on Human and People’s Rights. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria. Comm. No. 155/96 (2001) A.H.R.L.R. 60 (ACHPR 2001) (15th Annual Activity Report). para. 44-48

[9] Bennett Coleman & Co v. The Union of India. Supreme Court of India. (1973). 2 SCR 757. p. 811.

[10] International Covenant on Civil and Political Rights. 999 UNTS 171 (1966). [hereinafter: ICCPR]. Art. 19

[11] Jayawickrama, Nihal. The Judicial Application Of Human Rights Law: National, Regional And International Jurisprudence. Cambridge University Press. (2003). p. 666

[12] Hertzberg v. Finland. Human Rights Committee. Communication No.61/1979, 2 April 1982

[13] International Covenant on Economic, Social and Cultural Rights. 999 UNTS 3 (1966). [hereinafter: ICESCR]. Art. 12(1)

[14] UN Human Rights Committee (HRC). General comment no. 36, Article 6 (Right to Life). 3 September 2019. CCPR/C/GC/35. para. 18

[15] Koivurova, Timo. Due Diligence. February 2010. Max Planck Encyclopedia of Public International Law [MPEPIL]

[16] International Law Commission (ILC). Articles on Responsibility of States for Internationally Wrongful Acts. December 2001. UN. Doc (A/56/83). [hereinafter: RSIWA]. Art.1; 2; 12.

[17] CBD. supra note 6. Art. 3

[18] Ibid. Art. 7-8; Art. 14

[19] Bowman, M., Davies, P., & Redgewell, C. Lyster’s International Wildlife Law. Cambridge University Press. (2010). p. 604

[20] CBD. supra note 6. Art. 14(1)(c)(d); P. Okowa, Procedural Obligations in International Environmental Agreements. (1996). 71 BYIL 275; Xue, Hanqin. Transboundary damage in international law. Vol. 27. Cambridge University Press. (2003). p. 3.

[21] https://cites.org/sites/default/files/notif/E-Notif-2020-018.pdf

[22] https://www.cites.org/eng/CITES_Secretariat_statement_in_relation_to_COVID19

[23] https://www.nytimes.com/article/coronavirus-timeline.html

[24] RSIWA. supra note 16. Art. 31

[25] Ibid. Art. 34 - 37

[26] Factory at Chorzów. Merits. Judgment No. 13. P.C.I.J. Series A. No. 17. (1928). p. 48

[27] https://www.theguardian.com/commentisfree/2020/mar/31/us-china-coronavirus-diplomacy

[28] International Court of Justice Statute. Art. 36(2)

[29] Application Of The Convention On The Prevention And Punishment Of The Crime Of Genocide. (The Gambia v. Myanmar). Provisional Measure. Order, General List No. 178. International Court of Justice (ICJ). 23 January 2020

[30] Rangarajan v. Jagjivan Ram. Supreme Court of India. LRC (Const) 412 (1990). at 427.

[31] Vogt v. Germany. European Court. 21 EHRR 205. (1995).

[32] https://www.youtube.com/watch?v=TPpoJGYlW54&t=172s