Corrective justice: Can China be held responsible for COVID-19?

It may be more useful to discern the outstanding issues with global health governance, and revamp WHO’s powers to improve surveillance and compliance with reporting obligations.

COVID-19, justice, China, WHO, global health governance, disease outbreaks, International Health Regulations

Eli Christman/Flickr

With the ongoing COVID-19 pandemic, the world is witnessing many firsts: closed cities, grounded flights and government-imposed lockdowns have become the new normal. As countries continue to navigate this rapidly evolving crisis, analysts have increasingly called for the need to hold China responsible for the pandemic, and seek reparations for the damage done to countries. In a way, this would also be a first; no country has been held responsible under the international legal framework for an infectious disease outbreak.

To be sure, countries — in their official capacity — are yet to invoke any international judicial body, or issue a statement framed under international law to condemn Beijing. Individual lawyers, however, have come forth to file actions against China, while international law experts have extensively written about this. Most of these claims are based on China’s cover-up of the virus, and rely on theories that incorrectly label it as a biological weapon. In this backdrop, this commentary aims to analyse each of these grounds and will attempt to assess whether they are legally tenable or not.

Countries — in their official capacity — are yet to invoke any international judicial body, or issue a statement framed under international law to condemn Beijing.

Suing China in domestic courts will not work

Class action lawsuits have been filed against Chinese authorities across various states in the US (Nevada, Florida, California and Texas) to hold it liable for operating bio-weapon laboratories and carrying out “ultra-hazardous activities” in Wuhan. While the Nevada, Florida and California complaints seek unspecified monetary damages, the Texas lawsuit seeks $20 trillion in damages — an amount that is more than the entire GDP of China.

A fundamental problem that strikes at the root of these complaints is that the named defendants, such as China, are — evidently — a foreign government. Under international law, the customary rule of state immunity establishes that one sovereign state cannot exercise jurisdiction over another. This rule is based on the principle of the sovereign equality of states, which is fundamental to the basis of the existing international order. It is also embodied in the US’s 1976 Foreign Sovereign Immunities Act (FSIA), which recognises a few limited exceptions to this rule — none of which have been established in the complaints.

A fundamental problem that strikes at the root of these complaints is that the named defendants, such as China, are — evidently — a foreign government.

In April 2020, the International Council of Jurists, headed by Indian jurist Adish Aggarwala requested the UN Human Rights Council (UNHRC) to make China pay “exemplary damages” for its “grave offences against humanity.” The complaint alleges that China violated human rights laws (right to health), its authorities where negligent and incompetent, and that the coronavirus is primarily a biological warfare conspiracy to catapult Beijing to power.

The UNHRC, however, is not a judicial body and cannot order Beijing to pay exemplary damages. The 47-member inter-governmental body is “responsible for strengthening the promotion and protection of human rights” and has powers to issue non-binding recommendations and undertake capacity building initiatives across countries. The UNHRC complaints procedure invoked here, gives it limited powers to review and monitor a situation, and recommend technical cooperation and advisory services to the state concerned.

These guidelines are non-binding, and are meant to function as a guide for governments to adopt appropriate mechanisms in their domestic systems.

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