COVID-19 Outbreak: Can China be Legally Made to Pay ‘Damages’?

It’s unlikely that China would voluntary consent to participate in proceedings before any international court.

COVID-19: Calls from across the world for China to pay compensation to the affected countries.

Photo: iStock

In the wake of the novel corona virus outbreak, recurring questions have been raised about the legal responsibility of China for its role in the spread of the virus. As the virus continues to wreck havoc across the globe, many have questioned the Chinese government’s actions in the initial weeks following the outbreak of the novel virus in Wuhan.

There have been repeated calls from many across the world for China to pay compensation to the affected countries. In the US alone, two class action suits have been filed against China, for suppressing information about the virus in its early days and seeking billions in compensation for the damages caused by the outbreak of the virus.

• There have been calls from across the world for China to pay compensation to the affected countries.
  
• Actions before domestic courts against China are unlikely to be successful.
  
• The alleged actions/omissions, albeit of local state officials, remain attributable to China under international law.
  
• It may be practically difficult to establish that Chinese authorities were aware at the relevant time of the potential of a virus to be a “public health emergency of international concern”.
  
• A more plausible international law obligation can however be made out under the “no-harm” principle.
  
• Even though the actions/omissions of China may implicate its international legal responsibility, the prospect of holding it accountable before an international court or tribunal do not appear encouraging.
  

Can China Be Tried in Domestic Courts?

At the very outset, however, it is necessary to appreciate the distinction between domestic law and international law remedies. Many of the claims against China have been made before municipal courts and are rooted in domestic law, such as the US class action law suits.

The inherent limitation with such actions before domestic forums is the availability of sovereign immunity to China before domestic courts. Most countries including the US and India have legislative provisions granting sovereign immunity to foreign States before domestic courts.

Although, over the years, courts have curtailed the availability of such immunity for commercial functions of a foreign State, the immunity continues to remain available in respect of its sovereign functions.

In these circumstances, actions before domestic courts against China for its actions in suppressing information about the virus are unlikely to be successful.

This raises the question of whether China is responsible under international law for its alleged actions and the remedies available to affected States against China for any such infractions of international law.

Can China Be Held Responsible Under International Law?

Under international law, every internationally wrongful act or omission of a State entails the international responsibility of that State. However, in order for an act or omission to be considered internationally wrongful, two constituent elements need to be met.

• First, the act or omission, in question, must be attributable to the State under the relevant rules of attribution in international law.
• Second; the act or omission must constitute a breach of an international obligation in force for that State at that time.

Even where both these elements have been satisfied, a State may nevertheless avoid international responsibility, if it can establish one of six specific circumstances (consent, self-defence, countermeasures, force majeure, distress or necessity) that preclude the wrongfulness of the actions and/or omissions on the part of the State.

In the present case, not much controversy exists over the attribution of the alleged acts or omissions to China.

The allegations pertain to the actions or omissions of local Chinese government officials in suppressing critical information about the novel corona virus in the early weeks following the outbreak. Even though such officials may belong to the local/provincial government, from the vantage point of international law, a State is unitary, and no differentiation can be sought to be made between provincial and union governments. Accordingly the alleged actions/omissions, albeit of local state officials, remain attributable to China under international law.

Practical Difficulties in Proving China’s Culpability

However, the question of whether such acts or omissions constitute a breach of an international obligation binding upon China at the relevant time is more problematic and challenging.

In terms of treaty law, the International Health Regulations, 2005 (IHR), adopted by the World Health Assembly, the plenary body of the World Health Organisation (WHO), is the sole binding legal instrument dedicated inter alia to the prevention, protection and control of “international spread of diseases”.

Article 6 read with Article 7 of the IHR obliges States to assess events occurring within their territory and notify the WHO within 24 hours of any event, including any “unexpected or unusual public health event” within its territory, regardless of its origin, which may constitute a “public health emergency of international concern”.

Since China is a member of the WHO, it is bound by this reporting obligation, and by the actions/omissions of its officials in allegedly suppressing information from the WHO about a highly contagious virus despite having necessary information, may arguably be seen as breaching its international obligations.

Having said that, it may be practically difficult to establish, particularly in view the lack of scientific information on the virus, that Chinese authorities were aware at the relevant time of the potential of a virus to be a “public health emergency of international concern”.

The ‘No Harm’ Principle

Under customary international law, there appears to be no direct obligation upon States to report an epidemic outbreak. However, international law scholars have tried to argue for such an obligation under the general principle of state co-operation espoused in a number of international instruments, read in the context of an emerging “human right” to health.

However, the legal effectiveness and customary status of such an obligation under international law at present remains uncertain. A more plausible international law obligation can however be made out under the “no-harm” principle, recognised and articulated in a number of significant international law decisions from the Trail Smelter Case (United States v. Canada) to the more recent Pulp Mills on the River Uruguay (Argentina v. Uruguay).

The no-harm principle requires States to prevent and minimise any significant transboundary harm originating from any territory within their authority or control. Although these decisions have recognised the no-harm principle in cases of transboundary environmental damage, the principle can also be extended to cover harm arising from the outbreak of highly contagious infectious diseases such as COVID-19. By suppressing information about the virus and allowing the spread of the virus overseas to continue unchecked in its crucial early weeks, China can arguably be said to have breached the no-harm principle.

Limited Scope of Reparation Claims

In the present case, it appears unlikely China will be able to press into existence any of the general defences available under international law, such as state of necessity, force majeure or distress, to preclude its international wrongfulness. Accordingly the actions and/or omissions of China, in suppressing information about the virus would arguably entail its international responsibility.

The consequence of such determination, as held in the Case Concerning the Factory at Charzow, would oblige China to make “full reparation”, in the form of compensation for any injury caused by its internationally wrongful conduct. The injury, in this context, would however be limited to that which is ascribable to the wrongful act, rather than any or all consequences flowing from the internationally wrongful act.

In other words, reparation would be limited to the damage caused as a result of China’s delayed reporting, and not damage inflicted as a result of delayed public health response in many of the affected countries to curtail the spread of the virus.

However, even though the actions/omissions of China, may implicate its international legal responsibility, the prospect of holding China accountable for such actions/omissions before an international court or tribunal do not appear encouraging.

China’s Track Record is Not Encouraging

As is well known, it is a fundamental principle of international adjudication, that jurisdiction of an international court or tribunal is derived from consent of the participating States. Even in the context of the IHR, consent is separately required, for a specific dispute thereunder to be brought to arbitration. In such a scenario, and given China’s earlier track record of non-participation before international tribunals—illustrated in the South China Sea Arbitration—it appears unlikely that China would voluntary consent to participate in proceedings before any international court or tribunal on this issue.

Nevertheless, despite the bleak prospect of enforcing international law through judicial means, the factum of breach of international law by China is, of itself, significant. The affected counties can always seek to hold China accountable under international law through non-judicial means, including by raising the issue diplomatically, either bilaterally or at an appropriate international forum.

(Jay Manoj Sanklecha is a lawyer specialising in international law. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)