(The views expressed by the respective individual do not reflect that of the School of Public Policy or the London School of Economics and Political Science).
As a way of seeking reparations for the enormous loss caused by the Covid-19 pandemic, lawyers from all across the globe have dragged the People’s Republic of China to court in an attempt to hold the nation guilty on account of gross negligence by causing a delay in informing the World Health Organisation. The root cause of China’s alleged negligence comes from when WHO’s country office was informed by the Chinese government about the outbreak. At that point, the Chinese officials reported no possibility of human-to-human transmission, and this negligence is what helped turn a small outbreak into a global pandemic, urging the global community to seek an apology from China. However, China provided a simple explanation for this omission: the unpredictability of the virus. WHO had been informed by China’s Health Commission on 11th January about the forty cases that were found within mainland China. Since the number of symptomatic patients was relatively lower at the time, it was unforeseeable that the virus would turn out to be this fatal. Prior to the Covid-19 outbreak, several other diseases too, have spread. But not all of them turn out to be so dangerous. Also, the fact that the virus’s symptoms only start to appear after ten days makes its patterns highly random, thus hindering its predictability. With all these factors added together, it was impossible for Chinese officials to study the virus so closely, as to be able to aware the world of its method of transmission.
Even if we consider these allegations to be true, China’s government has no obligation to issue an apology or provide reparations to those affected by the virus. Nowhere in the history of the civilised world has a nation ever been compelled for being unable to curb the spread of a disease, so why should China be held liable? The underlying principle behind this notion is the idea that no country would deliberately spread a disease in the territories of another, on simple humanitarian grounds that are respected by all states of the world.
If the above is not satisfactory, looking at the allegations against China through a pre-Columbian perspective – back in 1492, the Old World exposed the American population to a variety of diseases, leading to the decimation of nearly 95% of the population. Prior to this, the indigenous people of America had never experienced any such diseases. The European explorers, instead of issuing an apology for almost causing the extinction of a race, continued to reside in the American territory for years. It is to be noted that no form of assistance or relief was provided to the natives for polluting their land with a myriad of undesirable diseases.
Coming to modern times, in 2009, when the H1N1 outbreak took place, it was only proven after seven years that its origin was Mexico. The outbreak claimed about 18,000 lives, but Mexico was not obligated to issue an apology. Now if Mexico, a country whose guilt has explicitly been proven, did not apologise for its acts, then why does the world expect China to pay for the damage caused by Covid-19?
Several critics across the globe have formed conspiracy theories, accusing China of deliberately spreading the coronavirus as a bioweapon, in order to take an economic lead over the global leaders. However, they fail to realise that just like other countries, China too has suffered a horrifying loss from this pandemic. Its urban unemployment rate surged to 6.2%, the industrial output came down by 13%, while the private sector investment fell down to 26.4%, and the retail sales shrank to 20.5% only in the first two months of the year. Now, how can a country suffering such extreme monetary losses be expected to take a global lead? How can one expect China to surge past other economies, when China itself is one of the worst sufferers of the pandemic? Such baseless claims are only published to defame China on a global scale, since this is a great opportunity to do so, considering the misery the country is undergoing.
Further, the origin of 2019-nCov is still unknown. Initially, the virus was believed to have originated from a seafood market in Wuhan, however, this claim was soon refuted by researchers who extinguished China’s liability, proving that the virus was rather imported from elsewhere to China. Considering the correctness of this authority, the circumstance has made a U-turn. If we follow the principles applied behind the lawsuits framed, China, instead of being held guilty for negligence, deserves reparations from countries where the virus originated.
If with further developments, it is presented that the virus originated from China, it must be noted that it is impossible for a country to single-handedly transform a mere outbreak into a global pandemic. For a disease to travel to other nations, it needs to be carried to other territories physically. Since Covid-19 does not travel through air on its own, the virus could have only been taken to countries outside China by physical carriers. If someone visited China and contracted the virus, and returned to their homeland, how can the Chinese government be blamed? Since Covid-19’s symptoms only appear after about ten days, it was practically impossible for the officials to identify the carriers before they had left the country. Any person of reasonable prudence would refrain from visiting public places in case they feel symptomatic. However, there have been several cases in which persons already infected with the virus have visited sites that hold large crowds, spreading the disease. Based on the principles of international law, such matters are totally out of the jurisdiction of the Chinese government, since China has no claim in preventing foreigners from going back to their countries.
Now, once these travellers return to their homeland, it is the responsibility of their own governments to ensure that citizens returning to the country, after visiting regions that have been suffering from contagious diseases, must be examined thoroughly in order to prohibit its spread. Considering the huge number of people who travel globally every year, it is important for countries to set up their own disease prevention teams at their emigration points in order to prevent the spread of such pandemics. However, it was only after the virus had reached a certain death toll, that the international community took the issue seriously.
Coming to the litigations that have been filed in several municipal courts, claiming damages from China, such actions are likely to fail, owing to the doctrine of sovereign immunity that has been widely accepted by judiciaries around the world. The principle that shall be followed, is that no country shall allow another country to be sued in its own courts, considering that the same immunity would be provided to it in return, when the need arises. Respecting the doctrine, Section 86 of the Indian Civil Procedure Code is formed in such a way, as to prohibit citizens from filing lawsuits against foreign nations without seeking prior approval from the central government. The United States too does not permit individuals from seeking reparations from other countries in its courts under its Foreign Sovereign Immunities Act. Even though there are exceptions to such provisions, such permissions are unlikely to be granted by governments, in order to protect their diplomatic relations with China.
Assuming that most countries would not allow their citizens to claim damages (if at all they exist), the next resort that the world populace deems correct, is approaching the ICJ. Under Articles 21 and 22 of the WHO Constitution states could enforce ICJ’s jurisdiction into the matter in order to prosecute China. But the court can only ask China to provide reparations to other States when its guilt can actually be proven. Based on the ambiguity of the origin of the virus and the negligence of the international community as a whole, it seems unlikely that China may be held guilty of causing damage to other nations.
But before approaching the ICJ, it must be established the court has jurisdiction in this matter. Since the jurisdiction of international tribunals is absolutely consensual, China cannot be forced to undergo a trial at the Hague, unless it voluntarily surrenders itself before the court. Although in such matters, the Security Council may pass a resolution to compel a state to submit itself to the court and give a binding effect to its judgment, the fact that China is a permanent member, vested with veto powers makes it invulnerable.
Though numerous claims are raised against China for being negligent in controlling the spread of Covid-19, such allegations have no effect without a solid proof.. As far as lawsuits are concerned, owing to the doctrine of sovereign immunity, China is de facto insusceptible to municipal courts, whereas the ICJ has no direct jurisdiction in the issue.