As the world deals with a global pandemic, the question of whether China should pay reparations for the spread of COVID-19 has come to the forefront. Now that the pandemic has affected almost every country in the world, international law must inevitably step in. Of particular importance to us is the application of international health laws and the responsibilities of states under those laws. This article explores whether a country can be held liable under international law for the spread of a disease.
The President of the United States has continuously blamed China for the spread of the novel virus and the US has argued that China needs to compensate other countries for the losses caused by the virus. A heated debate around the world on the topic has led some journalists, analysts and politicians to agree that China must pay reparations to countries affected by the coronavirus. This article will discuss whether these claims are recognized by international law and if China really has failed in its responsibilities towards other countries.
International health laws regulate how countries should deal with epidemics and diseases posing a threat to the international community and how the World Health Organization (WHO) should act. The leading instrument on the regulation of international health is the International Health Regulations (2005) passed by the WHO in 2005 and enforced in 2007. This document legally binds 196 states, including China and the US. The Regulations set out responsibilities for state parties and the WHO on how to act when a health emergency of international importance occurs.
Some provisions of these Regulations are relevant to the claims made against China, but before we discuss what those Articles are and what their potential effect on the current situation can be, let us shed some light on why these claims are being made. Can a country prevent a virus originating in its territory from spreading? Have viruses not originated in countries in the past? Did China ‘invent’ the virus? To be precise, such presumptions are baseless and are not the reason why claims have been made. The claims have been made simply because many countries, including the US, believe that China failed to inform the WHO about the novel virus in time and failure to do so contributed to the spread of the virus. This article will not discuss whether China failed to act, instead it will outline the provisions of the 2005 Regulations which apply to state party communications with WHO.
Two Articles deal with such a situation, the first one being Article 6 of the Regulations. This Article requires any state party to assess the events related to public health occurring in its territory and notify the WHO if there is a public health emergency of international nature. According to the Article, this should be done within 24 hours of the discovery. The time-frame in which the notification is to be made is of grave importance as any delay in notification will not only violate the provision but also result in the spread of the virus.
China claims that it did not conceal any evidence related to the virus. On the other hand, official sources seem to suggest that that the first case in China was diagnosed on December 8, 2019 while China did not report it to the WHO until January 21, 2019, thereby delaying its obligation to notify the WHO by at least a month. This is a violation of Article 6(1) of the International Health Regulations 2005.
The issue becomes more complicated as Article 6(1) is not very straightforward. It is important to know that Article 6(1) makes a reference to Annex 2 which lays down the details of how a state party must conduct an assessment. A state is supposed to notify the WHO only when the assessment is complete and once the state has reached a conclusion. This means that the 24-hour time limit only begins once the assessment has been concluded. The duration of the assessment under Annex 2 has not been prescribed. Thus, China reporting its first case over a month before notifying the WHO does not necessarily mean that it did not comply with Article 6(1). It is quite possible that China spent the time towards carrying out the assessment. If that is the case then it suggests compliance with Article 6(1).
The Article still does not completely absolve China of the claims against it as there is a fair chance that China has no liability under international law. With law and facts being blurry here, the international community should deal with the issue of China’s liability under other provisions of international law. For this purpose, Article 56 of the 2005 Regulations could be considered which deals with the settlement of disputes. Article 56(3) mentions arbitration conducted by the Director-General of WHO, which is believed to be the most suitable way of resolving the issue.
Whatever direction the proceedings may take, one thing is for sure – international health law needs to be reframed once the pandemic is under control as countries can exploit blurry provisions to escape liability. If that happens, it will prejudice the rights (if they do exist) of countries looking to receive reparations.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.