In the past few months, since the outbreak of the COVID-19 pandemic, the globe has turned into an emergency zone. Lives have been lost, businesses are being impacted, and individuals being affected by unemployment. Responsibility will be strictly dispensed and fingers will be pointed when this storm finally settles. Had China complied with International Health Regulations, in particular Articles 6 (obligation of timely notification) and Article 7 (information sharing), there would have been exponentially fewer cases today. Under the immense human loss and economic depression, some nations have already started whispering about China’s accountability and devising strategies to seek reparation for economic harm. Scholars have already claimed that China can be brought before an International Court over the COVID-19 pandemic and to warn China that “the lawyers are coming.” 

In this context does there exist any legal basis for a lawsuit against China and the disreputably stubborn problem of enforcing international law?

The chain of events

No matter how much China uses its political leverage to cover up, there is a basis. Just before the Lunar New Year celebrations, China started misrepresenting the outbreak in the form of false assurances to the people. This was followed by putting Li Wenliang and other Chinese medics, who sounded the alarm about the virus, to jail. The New Year started with Xinhua News Agency calling out all netizens to not spread fake news and believe in rumours. While Chinese media suppressed key information, Li was made to sign a letter accusing him of disturbing social order by making false comments. By then, China had more than 570 infections. Li died, weeks later, from the virus. Even as cases climbed, officials chose to put a lid of secrecy instead of openly confronting it, and the Wuhan Municipal Health Commission simply stated that there was no human-to-human transmission.

The government’s inept handling allowed the virus to get a firm hold, while China failed to share this crucial information with the World Health Organisation (WHO), and waited until February 14 before it disclosed about the 1,700 health care workers getting infected. China’s omissions and commissions are part of its political system, a repeat of what it did 18 years earlier about the SARS spread from China’s Guangdong province.

ICJ or ICC can be moved 

As per the established fundamental principles of international law, every internationally wrongful act of a state entails responsibility. Wrongful acts are those attributable to the state that cause a breach of an international obligation. (Article 2) This conduct is attributable to the state when it comes from any ‘branches/organs’ of the government. In China, responsibility flowed from local authorities to President Xi Jinping, who is also the general secretary of the Communist Party of China (CPC). Additionally, the failure to transparently share information with the WHO under International Health Regulations, which is a legal obligation, entails state Responsibility. (Article 14)

Filing a lawsuit in domestic courts would do no good since domestic courts are incompetent to resolve a dispute of international nature between two states. The doctrine of “sovereign immunity” comes into play in such a peculiar situation and the Chinese government, its political subdivisions or departments cannot be sued without China’s consent in any country.

A lawsuit could be brought before the International Court of Justice (ICJ). The court must obtain ‘consent’ from counter countries to resolve any disputes. In the instant case, China does not recognize the jurisdiction of ICJ, making it incompetent to render a judicial decision for a possible lawsuit.  However, the ICJ may be called upon to provide an advisory opinion on this issue by the United Nations. Such an opinion provides a fairly authoritative evaluation of any legal liability and accordingly, the governments can later adjust their political response. This strategy was effectively used to assess the legal consequences of constructing the wall in the occupied Palestinian territory and also, in determining the validity of Kosovo’s unilateral declaration of independence.

The International Criminal Court (ICC) might be another recourse. However, ICC prosecutes individuals for genocides, crimes against humanity, war crimes, and crimes of aggression. China has not ratified the Rome Statute, in turn, making ICC, incompetent for a nation to bring up a suit against China. However, the United Nations Security Council (UNSC) under Article 13 of the Rome Statute can refer cases to ICC or adopt a resolution against China based on its primary responsibility for the maintenance of international peace and security. Though China can evade this claim by using veto power, the United Nations General Assembly Resolution 377A can be invoked. The Uniting for Peace resolution states that in case the UNSC, due to lack of unanimity amongst its five permanent members is not able to act, to maintain international peace and security, the General Assembly may issue necessary recommendations as it did during the Korean crisis.

Basis for legal action

In international law, ‘sanctions’ are a major hindrance. Proclaiming that United Nations member states are responsible for their actions is easy. However, sanctioning them is challenging. Legally, the UN Charter, under Chapter XIV recognizes that states may bring disputes to ICJ and other international courts; however, the principle of state sovereignty makes it difficult. This does not mean that action cannot be taken against China. The injured states can always take lawful ‘countermeasures’ which are not wrongful and lopsided, such as suspending any legal obligations or duties owed to China to permit the resumption of performance of China’s obligations to address damages it has wreaked on the world (Article 49). The countermeasures can be used proportionately (Article 51), setting aside a few careful limitations such as ‘use of force’ or ‘violation of human rights’ (Article 50).

China can use all their political leverage and strength if they have to. However, it cannot do much to protect the state entities and government officials from legal action. As per Article 39, while determining reparation, “account shall be taken off the contribution to the injury by the wilful or negligent action or omission of the injured state or any person or entity in relation to whom reparation is sought.” This means that, even if the principle of state sovereignty saves China, a claim can always be brought against ‘the contributors’, i.e. the CPC and/or the President himself.

When all of this comes to an end and the dust settles, China may find itself bombarded with heavy state action for their reckless conduct caused to the whole world.

(The lead writer is a lawyer. He can be contacted at behl.tushar96@gmail.com. Medha Patil is a penultimate year law student at Maharashtra National Law University, Nagpur, India. The views expressed are personal)