By Romel Regalado Bagares
A novel coronavirus
On December 30 last year, Dr. Ai Fen, Director of medical emergency at Wuhan Central hospital in Hubei province, received the lab results of a patient with flu-like symptoms that had proved to be resistant to prescribed treatment.
The lab results turned up a dreaded note: “Sars coronavirus,” according to an interview she gave with the Chinese magazine, Renwu, or “People,” translated into English by the British newspaper The Guardian and published on March 11.
It made her break into a sweat. After making sure she read the note correctly, she snapped a photo of the report using her smartphone and sent it to a colleague at another hospital in the city of around 11 million. By day’s end, that photo would circulate in chat groups, and reached another doctor at her hospital, Dr. Li Wenliang. It was the latter who would shortly blow the lid on the true nature of the virus.
But Chinese authorities, instead of immediately warning the public about it, censured Dr. Ai, she said in her Renwu interview. Her superiors even instructed her to tell staff not to wear protective gear when treating patients, which she disobeyed, for the sake of her colleagues.
The authorities also allegedly caused the arrest of Dr. Li, forcing him to sign a declaration that he will stop talking publicly about the virus. Dr. Li, after treating many of the patients himself, would later on die of the disease now known as “Coronavirus 2019” (COVID-19), which arose from the virus identified as “SARS-CoV-2,” a new coronavirus suspected but not proven to have come from bats or pangolins.
His subsequent death would spark a rare and massive online outburst of anger among Chinese citizens, who looked to him as a martyr.
The South China Morning Post also reported on March 13 that another doctor, Zhang Jixian, of the Hubei Provincial Hospital of Integrated Chinese and Western Medicine, had reported to China’s health authorities at an even earlier date – on December 27 last year – that the flu-like disease that had stricken a rising number of patients was caused by a new coronavirus.
However, by January 2, 41 patients admitted into hospitals in Wuhan “had been identified as having laboratory-confirmed 2019-nCoV infection,”according to a crucial study made by Chinese medical scientists and published by The Lancet, a noted British medical journal, on January 24.
More importantly, only 27 of the patients (or 66 percent of the patient population in the study) had links to the Huanan seafood market, the suspected “ground zero” of the outbreak. The rest of the patients, because they had no connections to the market, indicated human to human transmission. This latter set included one of the earliest cases, from December 1 last year.
Interestingly, this study was funded by a cluster of high-level Chinese national institutions – the Ministry of Science and Technology, Chinese Academy of Medical Sciences, National Natural Science Foundation of China, and Beijing Municipal Science and Technology Commission.
This makes the study official, being sanctioned by the highest echelons of China’s central government. Yet, despite this officially-sanctioned research results, on January 19, in their very first public statement to the World Health Organization (WHO), Chinese officials insisted it was a “preventable and controllable” animal-to-human disease, saying available evidence only connected it to the seafood market in Wuhan, where the new virus emerged.
The officials would finally confirm human to human transmission only two days later, as the number of sick residents coming to hospital emergency rooms in the city reached 1,523 a day – or three times the normal rate. This was already 19 days – or nearly three weeks – after The Lancet study’s confirmation of a novel coronavirus outbreak in Wuhan.
And now, nearly three months later, the world as we know it is gone; global supply chains – many of them dependent on China-based factories – grind to a halt, putting in deep doubt the seamless globalization they had underwritten all these years; airline and tourism industries worldwide falter; stock markets crash; universities abruptly shift classes online; offices adopt virtual or work from home arrangements; and entire cities or nations go on lockdown for extended periods, as governments try to “flatten the curve” on the deadly virus, which has already spread to more than 168 countries and regions around the world, with 378,679 cases and 16, 508 deaths as of March 24, according to the Johns Hopkins University Center for Systems Science Engineering.
Too, it has made the closure of borders a necessity, even in the Eurozone, a region premised on the free movement of goods and peoples. A global recession – defined as economic growth rate below 2.5 percent from the normal range of 3.5 to 4 percent – has arrived, according to the Financial Times on March 15.
COVID-19 and the Law of State Responsibility
The question is: assuming the allegations of an official coverup are true, is the Chinese government liable in some way for it under international law?
Under the law of state responsibility, China has certain international obligations it should have dutifully observed in dealing with the COVID-19 disease. The law of state responsibility defines the conditions and consequences of wrongful conduct of states under international law.
The determination of state responsibility involves two correlated grids: one, primary rules, which prescribe a certain conduct, depending on the legal regime in question; and two, secondary rules, which define the conditions under which an act is wrongful in international law and spells out the consequences of such internationally wrongful act.
Secondary rules are expressed in the 2001 Draft Articles on the Responsibility of States for Wrongful Acts (ARSIWA), a landmark document developed by the International Law Commission to codify customary norms of state responsibility, as well as in relevant case law, and general principles of law.
Generally, state responsibility is raised whenever a state commits an internationally unlawful act or conduct that breaches its international obligations regardless of whether an injured state at all seeks reparations for the damage it suffered as a result of such an internationally unlawful act.
This is known as the “objective interpretation of state responsibility”, which protects the integrity and stability of the international legal order. Thus, an international wrong done by a state does not become a right simply because no one complained against it.
The IHR (2005) as the applicable primary rule
China’s alleged suppression of information on COVID-19 is a violation of the 2005 International Health Regulations (IHR) established under the auspices of the World Health Assembly, the decision-making body of the World Health Agency (WHO), to deal with diseases of an international nature.
The IHR (2005) is an interesting species of international law, because it is a set of regulations established by an international organization. Nevertheless, the parties to it are states, and the WHO treats it as a treaty binding on member-states.
The purpose of the IHR (2005) is “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
China, when it became a party to the treaty in the same year, declared that it “applies to the entire territory of the People’s Republic of China, including the Hong Kong Special Administrative Region, the Macau Special Administrative Region and the Taiwan Province.”
First drafted in 1969, it covered six “quarantinable” diseases, but was later amended in 1973 and 1981 to cover only three infectious diseases – cholera, plague, and yellow fever – thus reflecting the WHO’s success in fighting infectious diseases. However, when the first coronavirus epidemic – the Severe Acute Respiratory Syndrome ( SARS) – broke out in 2003 in China, the IHR could not be invoked for that reason.
At that time, China’s response to the outbreak in Guangdong province as early as November 2002 left many countries reeling from its after effects, as Chinese officials shunned transparency and cooperation, thus contributing to global spread of the coronavirus.
On May 23, 2005, the IHR was again amended to now apply in general to any “illness medical condition, irrespective of origin or source, that presents or could present significant harm to humans.” It also now covers any “public health emergency of international concern.” Such public emergency is now defined as “an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response.”
The new regulations took effect on June 15, 2007.
It is undeniable that COVID-19 is one such public health emergency of international concern, as it has been declared a pandemic – or “the worldwide spread of a new disease” – by the WHO on March 11, the very first to be called by the international body of a coronavirus. So far, it has wrought untold havoc on the world economy, aside from already affecting the right to life and the right to health of nearly four hundred thousand people globally. The IHR (2005) comprises the primary rules of state responsibility that prescribe conduct – international obligations– on a pandemic like the COVID-19 disease.
China’s Duty to Notify under the IHR (2005)
A WHO briefer explains that upon the first reports of a potential public health emergency of international concern, within its territory, a state is required to assess within 48 hours by applying a specific algorithm contained in Annex II of the IHR(2005), called the decision instrument. It is to use four decision criteria for the purpose – (1) the seriousness of the event’s public health impact; (2) the unusual or unexpected nature of the event; (3) the risk of international disease spread; and (4) or the risk that travel or trade restrictions will be imposed by other countries.
“In essence, the events which must be assessed are those that may fulfil one or more of the four decision instrument criteria, and the events which must be notified are those that meet at least any two of the criteria therein,” according to a WHO briefer.
The earliest report appears to have been made on December 27 last year by Dr. Shang, followed three days later by Dr. Ai and Dr. Li. So, on the basis of the IHR (2005) protocol, China had 48 hours to assess whether this “unusual event” is of the nature of an public health emergency of an international concern.
Then, under Arts. 6 and 7 of IHR (2005), China had the duty to inform the WHO within 24 hours of determining the nature of the virus, using a prescribed checklist, as well as any measure it has deployed to deal with its outbreak.
The Smoking Gun?
The critical date here appears to be January 2 , when 41 patients “had been identified as having laboratory-confirmed 2019-nCoV infection,” in the words of the Lancet study. This Lancet study could be the proverbial “smoking gun” in any international litigation.
And it is baffling that the study – with the names of a stellar cast of Chinese medical scientists appended to it – was at all allowed to be published in an independent and reputable foreign medical journal by the Chinese government.
Given the official nature of this research study, this amounts to a direct admission by the Chinese government that they knew early on about the nature of the contagion in Wuhan. And within 24 hours of this determination, China, through its designated National IHR Focal Point, should have already alerted the designated IHR Contact Point.
After such notification, China also had the duty to communicate to the WHO “timely, accurate and sufficiently detailed public health information available.” This includes “case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed.” China was also expected to report the challenges posed by the virus, and any assistance it may need to respond to the potential public health emergency of international concern.
As the available facts show, Chinese authorities allegedly quarantined information and any public discussion about the COVID-19 for nearly three weeks, when early containment to prevent its spread beyond Chinese borders was supposed to be the order of the day.
They also reportedly refused offers of assistance from the WHO and from the US Center for Disease Control and Prevention (CDC) in those early stages of the outbreak. A US CDC report would later say that the “sequences from U.S. patients are similar to the one that China initially posted, suggesting a likely single, recent emergence of this virus from an animal reservoir.”
Worse, China’s provincial officials even allegedly prosecuted whistleblowers.
In the Corfu Channel Case (1949), the International Court of Justice (ICJ) held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other States.” Such a general principle of law means that China is duty-bound to ensure that individuals do not cause harm to the rights of other states. Moreover, the acts of persons exercising public authority are attributable to the state. This is consistent with the principle of the unity of the state, where the conduct of any of its organs, whether in the exercise of legislative, executive, or judicial functions, are considered its own acts in international law.
Thus, ultimately, China is responsible for the decisions taken by its public officials to keep under wraps crucial information on the virus for nearly three weeks when, under the IHR (2005), it had the duty to inform the world of the public health emergency within 24 hours of assessing its dangers.
That long delay may have caused many countries the only window of opportunity they had to prevent the contagion from spreading worldwide.
The Guardian reported on March 11 about scientific simulations showing that if the interventions could have been brought in a week earlier, 66 percent fewer people would have been infected, and if the same interventions could have been implemented three weeks earlier, it would have reduced the cases by 95 percent.
Breaches and Reparations
What are the remedies available under international law for the injury suffered by other states as a result of China’s alleged mishandling of the COVID-19 pandemic?
China may be liable to pay reparations to injured states over its failure to promptly notify the world of the outbreak of the SARS-CoV-2 virus as required by the WHO’s International Health Regulations (2005).
Whenever a State commits an internationally unlawful conduct, it must pay reparations to the injured parties for the damage they suffered . It is a principle of international law that the breach of an agreement involves an obligation to make reparation in an adequate form,” as the landmark Chorzow Factory Case (1927) would put it.
Reparation, per Chorzow, “must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”
If restitution is no longer possible, “payment of a sum corresponding to the value which a restitution in kind would bear” will suffice, along with an award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”
According to the 2001 LaGrand Case, an assessment of damages may also come with an award of satisfaction, or a formal apology and assurance from the offending state that its unlawful conduct will not be repeated.
Both the apology and the pledge of non-repetition are important, because if that same state once again violates the same obligations in the future, these may be taken in evidence in another proceeding for reparations for purposes of ascertaining punitive damages, the repetition being a doubly flagrant and morally reprehensible violation of its international obligations.
Causal link requirement
As the obligations in question involve a positive duty that must be discharged to prevent the spread of an infectious disease or a public health emergency of international concern, reparations may involve a determination by an international tribunal of a causal link between the alleged breach of an international obligation and the damage suffered by the injured States.
One applicable model of causation is the “sufficiently direct and certain causal nexus test“ established by the International Court of Justice in the Bosnian Genocide Case (2007). This means that an injured state must establish from the case as a whole and with a sufficient degree of certainty that the pandemic would have been averted had China complied with its treaty obligations under IHR (2005).
Or, it may be a simple test of an obligation of conduct as in Corfu Channel, where the failure to discharge a positive duty to notify under customary international law was enough to assess damages against the offending state, Albania, which failure was deemed a form of negligence. In fact, in the Rainbow Warrior Arbitration (1986), it was held that mere violation of an obligation, “irrespective of material damage, can cause moral or legal damage.”
Indeed, it may be argued that the duty to notify codified in the IHR (2005) is not only a treaty norm but also a rule that, since the treaty was established in 1969, has crystallized as well as a norm of customary international law considered binding on all states, given the scale and effects of the dangers it addresses.
Moreover, the unprecedented spread of the deadly disease may yet give rise to a recognition that the failure to notify the world on public health emergencies of international concern now involves a fundamental and common interest of the international community of nations.
In such a case, even an uninjured State may bring a claim against China on behalf of the international community, under Art. 48 (1)(b) of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In any case, the liability for damages assessable against China for its alleged breach of international obligations would almost certainly involve staggering amounts.
Dispute settlement under the IHR (2005)
Art. 56 of the IHR(2005) provides member states with a graduated procedure for settling any dispute on the interpretation or application of the regulations.
Firstly, the provision requires parties to a dispute to settle it peacefully according to an agreed mechanism, including good offices, mediation, or conciliation. Secondly, if it fails, they may then refer it to the Director General, “who shall make every effort to settle it.”
However, the current WHO Director General, Tedros Adhanom Ghebreyesus, an Ethiopian, may not be the best person to settle it, having been repeatedly criticized by various sectors for his lavish praise of China’s response to the Wuhan outbreak.
Or a member state party may also declare in writing to the Director General that it accepts compulsory arbitration to settle such dispute. In such case, the arbitration will be conducted under the Permanent Court of Arbitration’s Optional Rules for Arbitrating Disputes between Two States applicable at the time a request for arbitration is made.
Any award made pursuant to the arbitration will be binding and final on the parties. Member states are also allowed to agree to settle their disputes using other dispute settlement mechanisms. However, if the dispute is between a member state and the WHO itself, it will be submitted to the Health Assembly.
China has not made any reservation on, or rejection of, any provision of the IHR (2005). However, it has not submitted a written declaration accepting compulsory arbitration.
Shifting the narrative?
But already, China is beginning to shift the narrative away from its alleged responsibility over the pandemic.
In early March, the Xinhua News Agency, a government mouthpiece, published an editorial claiming that “the world should thank China” for the huge sacrifices and extreme measures it had undertaken to fight the new coronavirus, which supposedly bought the rest of the world time, Asian Nikkei reported on March 11.
The Guardian also reported on March 13 that the Chinese Foreign Ministry now accuses the United States Army of having actually brought the virus to Wuhan, and Chinese diplomats and state media are echoing the allegation.
Also, the Chinese government just published a book, A Great Power’s Battle Against Epidemic, which praises Chinese Premier Xi Jinping’s “strategic foresight and outstanding leadership ability” in fighting the outbreak in Hubei province, according to the Asian Nikkei.
But the book was quickly withdrawn from circulation when Hubei residents protested that it was inappropriate to distribute the book when the battle against the virus not yet over.
President Donald Trump would not be outdone, saying China should be held to account for the “Chinese virus.”
On March 21, Time magazine quotes Czech Interior Minister Jan Hamacek as saying that China is “the only country capable of supplying Europe with such amounts.” The magazine also quotes a noted China expert Julian Ku, professor of international law at Hofstra University in New York as saying that the Chinese government hopes to leverage its experience in bringing the new coronavirus under control.
“The Chinese government’s failures … will be less harshly viewed in light of the failures of other governments to respond effectively as well,” he told Time.
WHO: the weakest link?
Even the WHO Director General Tedros Adhanom Ghebreyesus had praised the Chinese efforts to combat the pandemic, and even called on countries to avoid travel bans to and from China.
“We reiterate our call to all countries not to impose restrictions that unnecessarily interfere with international travel and trade, Tedros said in an official WHO statement on February 4. “Such restrictions can have the effect of increasing fear and stigma, with little public health benefit.”
Tedros’s praise for the Chinese response to the virus baffled some experts, according to a Washington Post report on February 8. These experts think that the international body’s positive appraisal of the Chinese handling of COVID-19 early on may have given other nations a false sense of security that the disease has not spiraled out of control.
“We were deceived,” Lawrence Gostin, a professor of global health law at Georgetown University who also provides technical assistance to the WHO told the Washington Post. “Myself and other public health experts, based on what the World Health Organization and China were saying, reassured the public that this was not serious, that we could bring this under control.”
Others are more caustic in their criticism.
On March 17, The Hill, a conservative American online magazine, published an opinion piece by Bradly A. Thayer, a professor of political science at the University of Texas and co-author of the book How China Sees the World: Han-Centrism and the Balance of Power in International Politics, and Lianchao Han, vice president of Citizen Power Initiatives for China. The two said Tedros and China’s XI Jinping “should be held accountable for recklessly managing this deadly pandemic.”
They accused Tedros of helping China “play down the severity, prevalence and scope of the COVID-19 outbreak” after meeting Xi on January 28 in Beijing.
They also noted China’s connections to the WHO Director General’s country of origin Ethiopia, which, they say, is now called East Africa’s “Little China” with heavy Chinese investments. Indeed, it has become “China’s bridgehead to influence Africa and a key to China’s Belt and Road initiative there.”
They also provided little known facts about Tedros, who, they say, was elected to his position with the WHO in 2017 “despite the fact that he was not trained as a medical doctor and had no global health management experience.” Instead, he was a former minister of health and minister of foreign affairs for Ethiopia before going to the WHO, where one of his first official acts was to propose to appoint then-Zimbabwe dictator Robert Mugabe as a WHO goodwill ambassador.
If so, we may see for the first time a suit for “complicity” of the WHO, an international organization – an area in international law that is admittedly still in development.
“Capable of repetition, yet evading review…”
In November 2017, an article in the Smithsonian Magazine asked whether China is going to be ground zero for a future pandemic. The author, Melinda Liu, argued that the country “is uniquely positioned to create a novel flu virus that kills people.” Why so?
“On Chinese farms, people, poultry and other livestock often live in close proximity. Pigs can be infected by both bird flu and human flu viruses, becoming potent ‘mixing vessels’ that allow genetic material from each to combine and possibly form new and deadly strains. The public’s taste for freshly killed meat, and the conditions at live markets, create ample opportunity for humans to come in contact with these new mutations.”
In addition, in a country of one billion people, only two percent receive flu shots annually, she wrote, underlining a grave lack of community immunity for flu.
There’s also the problem of the repressive political system, in the country, shown in the Chinese response to SARS outbreak, in which “Chinese apparatchiks initially tried to cover up the epidemic, creating a worldwide scandal.”
She did note an improvement in China’s handling of the H5N1 bird flu outbreak in 2013. Alas, the improvement would not last long.
Only three years later, Liu’s prediction would come true – a new pandemic from China has gripped the world, and it is with such virulence that, in the United States alone, it could kill as many as 1.7 million people, according to a US CDC worst case scenario estimate.
If anything, China’s immediate responses to the SARS and COVID-19 pandemics seem to underline that public health emergencies of international concern and authoritarian systems lacking in transparency and political freedoms make for a dangerous mix.
A formal legal proceeding before an international tribunal, where evidence for or against China’s alleged responsibility for the pandemic are heard by impartial judges, may be the best way to establish the truth about COVID-19, and to stop another pandemic from ravaging the world.
Yet it remains a big question whether China would allow itself to be dragged into yet another contentious international arbitration.
Injured states may take the first step of asking the good offices of UN Secretary General Antonio Guterres, to find a common solution with China for the damage they suffered as a consequence of the latter’s failure to promptly notify the world about the true nature of contagion that emerged in Wuhan late last year.
A shorter version also appeared in the Philippine Daily Inquirer as an opinion piece on March 22, 2020.