Daily Times

The core of international responsibility of States is based on two legal precepts: firstly, a State must be subject to international obligations; and secondly, a State must be responsible for noncompliance with such obligations. As for the Chinese violation of the BWC, the Beijing position is clear based on the notions: First, the experts in virology, including Richard Ebright, a chemical biology professor, and Tim Trevan, a biological safety expert, have endorsed that there appears no evidence that the virus was created. Second, any bioweapons research would likely need to remain covert, as bioweapons are outlawed by the Biological Weapons Convention. Yet conversely to this, the Wuhan Institute of Virology (WIV) is well-known, open, and affiliated with other labs around the world, including the Galveston National Laboratory in Texas. But having this sort of publicity and reputation could make it hard for the lab to operate secretly.

Customary international law on state responsibility also holds that a state violating international law has an obligation to make full reparation for the injury caused by the internationally wrongful act. But history provides no precedent before mechanically applying the IHR and the principles of state responsibility to the COVID-19 pandemic. According to Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts a breach of international law by an act, omission or combination of both, a State entails its international responsibility. The facts suggest that this customary rule has played no discernable role in disease outbreaks over the long history of international health cooperation. Even when states have argued that countries violated applicable treaties, states have not seriously pursued compensation against countries accused of breaching treaty obligations in terms of reporting disease events or refraining from imposing trade or travel measures that have had no scientific basis.

Clearly Article 6(2), requires State Parties, ”after notifying the WHO of an event which may constitute a public health emergency of international concern (PHEIC), to communicate to WHO timely, accurate and sufficiently detailed public health information available to it …, where possible including … a number of cases and deaths”. Article 7 is much broader, requiring State Parties if they have evidence of an event which may constitute a PHEIC, to “provide to WHO all relevant public health information”. Though theoretically, a State could, however, claim that China has violated Article 64 of the WHO Constitution by violating Articles 6 and 7 of the International Health Regulations-2005., but in real terms, making such case has to face some prompt legal hurdles.

However, the WHO’s constitution allows this organization to refer cases to the International Court of Justice (ICJ) for dispute settlements. Generally, international dispute adjudication is a consent-based system. This is the leading challenge international dispute adjudication confronts with. The parties must agree that the dispute between them shall be submitted and adjudicated by an international tribunal. The consent may be given in the treaty itself which is alleged to be violated or by concluding a compromise thereby seeking a special agreement between disputants by which a dispute is submitted to international adjudication.

Customary international law on state responsibility also holds that a state violating international law has an obligation to make full reparation for the injury caused by the internationally wrongful act

Since China is a party of both the international instrument i.e. ICJ Statute and IHR-2005 without any reservations. Prima facie, Article 6 and Article 56 of IHR-2005 and Article 36 of ICJ may nonetheless respectively be applicable to China and a case can be filed it in the ICJ for the Chinese violation of IHR, provided China declares that it recognises ICJ jurisdiction as required under Article 36(2). Needless to say, the possibility of such a declaration coming from China remains extremely grim in the present scenario. Because international disputes are adjudicated based on states’ consent, China would certainly challenge the ICJ’s jurisdiction. Understandably, Article 75 of the WHO Constitution refers to the International Court of Justice (ICJ) for the settlement of disputes. It argues that any question or dispute relating to interpretation and application of the Constitution shall be referred to ICJ if the same is not settled by negotiation or by Health Assembly.

Despite the fact that the two bills– pending before the US Congress ( one filed by Sen Sen. Josh Hawley, and the other one filed by Sen. Tom Cotton, R-Ark., and Rep. Dan Crenshaw, R-Texas, proposing amending the Foreign Sovereign Immunities Act to create an exception for damages caused by China’s handling of coronavirus outbreak– that may probably eliminate that legal hurdle by stripping China of its sovereign immunity in cases dealing with the coronavirus., there appears no logical basis that China has committed a wrongful international act under international law.

And yet arguably, whether China violated international law on infectious diseases proves a complicated question, especially in light of the behaviour of states during this period and the specific actions of the World Health Organization (WHO). Similarly, state practice has shown little, if any, interest in principles of state responsibility for acts alleged to be legally wrongful with respect to the transboundary/transregional movement of pathogens or virus. That said, the case for Chinese liability for COVID-19’s consequences seems less about international law than how the geopolitical rivalry between the United States and China has shaped the politics of this pandemic.

A sane American view indoctrinated by Andrew C McCarthy, a senior fellow at National Review Institute argues, ” Sounds ferocious, right? Except no American victim would actually get compensation, because Beijing would, of course, ignore the lawsuits . . . except to exploit them as a (further) excuse not to cooperate with American and foreign investigations; as a further basis not to honor its treaty obligations; as a reason to step up its aggression in the Far East; and as a rationale for retaliating by encouraging other countries to strip sovereign immunity from the United States, so that our nation and officials may be sued and indicted for harms real and imagined abroad.

This is foolish on so many levels it is tough to know where to begin”.

Pragmatically, given the leverage of the doctrine of cause-effect relations in International Treaties even if the legal challenge remains unsuccessful, pursuing such a case in a public forum like the International Court of Justice could still lead to some consequential political implications. To conclude, blaming China responsible for such an act of responsibility and accusing Beijing to pay compensation to the suffering states is an argument that has no logical footings. There is no space for post=factual arguments in international law. To prove the culpability charges against China vis-à-vis Coronavirus in terms of international law seems nothing but a half -done attempt which looms despair over the petitioners’ horizon.

Concluded

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan