Taking China to Court Over Virus Easier Said Than Done

Police officers and security guards stand outside residential buildings in Beijing that were locked down following a positive coronavirus case detected at a nearby market on Monday. (AP Photo/Andy Wong)

THE HAGUE, Netherlands (CN) — With nearly half a million dead and untold economic damage worldwide, the novel coronavirus has left many wondering whether China is to blame for the outbreak, including legal scholars. 

“No country in the world has ever been taken to an international court for violating international health standards,” said international law professor Valerio de Oliveira Mazzuol. But the world hasn’t had an outbreak like Covid-19 in more than 100 years. 

The most obvious choice of international court would be the International Court of Justice. Based in The Hague, the ICJ is sometimes referred to as “the world court.” In fact, it’s the highest judicial organ of the United Nations. It was created in 1945 by the U.N. charter and settles legal disputes between member states. 

The court has jurisdiction over cases in which two member states have agreed that disputes will be settled by the ICJ, often via a treaty, though countries can enter into a special agreement to grant jurisdiction. Only states can be parties to a case before the ICJ – individuals, companies and organizations cannot bring a complaint or be subjected to one before the court. The court can also issue advisory opinions at the request of the U.N. 

The Genocide Convention, the Chemical Weapons Convention, and the United Nations Convention against Torture are just some of the treaties that give the ICJ jurisdiction to adjudicate disputes. 

The route to bring a complaint against China is somewhat convoluted. The constitution of the U.N.’s health body, the World Health Organization, opens the door to the ICJ, according to Mazzuoli, who has recently published a paper on the subject. China is a member of the U.N. and the constitution requires that disputes about the constitution be referred to the ICJ. 

There is an existing case law for the ICJ addressing WHO constitutional disputes. In a 2002 case involving Congo and Rwanda, the ICJ held that it is empowered to do so. 

What is less clear is which provision of the constitution China might have violated. Two articles in the constitution, 64 and 65, require countries to report data to the WHO, but there’s no specific requirement for timing. 

The WHO produces the International Health Regulations, or IHR, which are legally binding obligations on member states that require them to inform the WHO of disease outbreaks within 24 hours. The timeline isn’t completely clear but it’s believed that Chinese authorities learn of a new coronavirus disease similar to SARS on Dec. 27, 2019. The country didn’t inform the WHO until Dec. 31. 

It’s not clear if the ICJ’s jurisdiction could be extended to the IHR, according to Aarshi Tirkey, an international law researcher. The regulations themselves require that disputes first go through mediation, then to the WHO director-general, and if they still can’t be resolved, to the Permanent Court of Arbitration, or PCA. 

A vendor wearing a face mask sells vegetables at an open air market in Beijing on Monday. (AP Photo/Ng Han Guan)

The PCA is an arbitration tribunal confusingly located in the same building in The Hague as the ICJ, but it is a separate entity. However, in past cases, China has refused to acknowledge decisions by the PCA.

In a statement after it lost a dispute with the Philippines over the South China Sea, the Chinese government said, “China solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it.”

Peter Tzeng, an international lawyer, thinks U.N. member states could bring a complaint alleging a violation of the IHR under the article of the WHO constitution that gives the organization the authority to adopt regulations like the IHR. That’s a view shared by legal studies professor Atul Alexander.

“A state could in all probability bring multiple claims against China for violation of the WHO Constitution,” Alexander wrote.  

A different approach would be to bring a complaint under the Responsibility of States for Internationally Wrongful Acts, a separate regulation adopted by the U.N. General Assembly in 2001. It governs how states are treated when they breach international treaty obligations. Romel Regalado Bagares, the executive director of the Center for International Law, thinks that China’s failure to report about the virus violates its obligations. But the articles aren’t binding on states.

Another option could be the International Criminal Court. Also based in The Hague, it tries the perpetrators of atrocity crimes, like genocide or war crimes. That court, however, is a criminal court and prosecutes individuals, not nations, so specific people who contributed to the outbreak would have to be identified. 

Moreover, China is not a party to the Rome Statute, which created the ICC.  But there has been some movement in recent years to allow for the prosecution of crimes that occur in a nonmember state but have an impact on a member state, such as with the Rohingya situation in Myanmar and Bangladesh. 

Some litigious Americans have taken the matter into their own hands and filed several class-action lawsuits against the Chinese state, the government of Wuhan, and the Chinese military for failing to contain the outbreak. One even names the Wuhan Institute of Virology, relying on the conspiracy theory that the virus was created in a lab. The state of Missouri also sued China over the pandemic.

The U.S. has legislation, the 1976 Foreign Sovereign Immunities Act, which bars lawsuits against foreign governments except in very specific circumstances, like when a country waives immunity or in cases involving naval law. Legal experts widely agree that these U.S. lawsuits against China stand no chance.  

Meanwhile, China, or at least Chinese citizens, are fighting back with their own legal action. Two state-backed lawyers in China, one in Wuhan, where the outbreak began, and one in the capital city Beijing, have sued the Centers for Disease Control and Prevention and the U.S. government for lost wages and emotional damage. The suits claim the outbreak originated in the United States. 

None of the potential legal avenues against Beijing would undo the damage done to the victims of the coronavirus outbreak or to the economic damage caused by the measures to combat it. Even if a country wanted to bring a complaint against China, most scholars agree that it’s unlikely to be successful.

But Mazzuol, the law professor, said, “It’s important to not let the state escape a responsibility.”

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