With more than half a million cases being reported globally and at least 24,500 fatalities as of now, COVID-19 is a pandemic that has literally brought our world to almost a complete lockdown.
Indian Prime Minister Narendra Modi ordered a 21-day lockdown in a country home to more than 1.3 billion people. And the thought of the fatal virus spreading in a country as populous as India deserves not just the immediate attention of India's leaders, but also that of the international community.
Meanwhile, US President Donald Trump has showed no restraint in blaming China for the spread of COVID-19, even though critics have accused him of 'racism'. Trump has often referred to the novel coronavirus as China virus or Wuhan virus, which is where technically the virus spread from. And that is a sentiment resonated by many.
Earlier this week, class action lawsuits were filed against the People's Republic of China in US courts. Globally, there is a growing movement including on social media to hold China responsible for its alleged failure in containing the virus, and also for misleading the international community by under-reporting the virus threat. Critics say that had China not undermined the seriousness of the virus and hidden information about its spread, we possibly could have prevented a pandemic from spreading.
But the question that needs a serious thought is this: Can China be found guilty for its alleged negligence and possible under-reporting of COVID-19, and for allegedly hiding crucial information about its transmission? If yes, where?
On 15 June 2007, the International Health Regulations, 2005 (IHR) came into effect, of which China is a signatory.
The IHR guidelines place obligations on nation States to provide adequate information to the World Health Organisation (WHO) to prevent the spread of pandemics. It is alleged that China failed under its obligations in this regard. In fact not only did China downplay the seriousness of COVID-19 till as late as February 2020 (the virus began infecting people around early December 2019), it seems to have hidden vital information until January 2020 by stating that the virus does not spread from 'human-to-human' contact, a myth that has since been busted by medical practitioners the world over.
Observers argue that it is difficult to believe that China, which boasts of its advances in science and technology, did not know the fact that the virus spreads through contact. They question if it could be possible that the reason for not disclosing the true extent of the virus could have been for some other purpose " quite possibly to ensure that its trade is not affected given that China is one of the largest manufacturers and exporters in the world.
International law places an obligation on States to behave in a responsible manner, and this is known as the law of state responsibility. International law scholars around the world have observed that the Chinese government from the echelons of power right to the local authorities in Wuhan have failed in their responsibility by both withholding information and by providing inconclusive information, and hence seem to have violated accepted standards and norms of international law.
Can China be sued on an international level?
Yes. On an international level, States could sue the People's Republic of China at the International Court of Justice (ICJ) and/ or other international forums for violations. From the information presently available as to Chinese response from the time of the novel coronavirus being detected in Wuhan to the actual spread of it globally, it appears that a prima-facie case has been made out for China to be held liable for its alleged inactions in containing the spread of the virus. States could argue that China gave precedence to economic gains rather than do things on a war footing, which could have possibly helped contain the virus to its shores alone, and not become a pandemic that we are witnessing today.
Suing China in local courts across the world:
The second aspect of the question arises from the point of view of individuals. Those who have suffered losses --whether that of loved ones, or quite possibly financial loss -- could possibly take the lead.
While accepted norms internationally state that sovereign states are granted immunity from the courts of other countries, certain exceptions do exist.
In Texas, a class action lawsuit has been filed against China, while another suit has been filed in Florida. Filed, inter-alia, by an advocacy group which claims that COVID-19 is an act of terrorism and calls the virus 'biological warfare', this class action lawsuit may not stand the test of law given that the Foreign Sovereign Immunities Act, 1976 (FISA) has been enacted by the US, which establishes certain limitations on the possibility of a foreign sovereign nation being sued in a US Court.
Clearing the air around the possible class action lawsuits, Dr James Kraska, chair and Charles H. Stockton professor of international maritime law at the Stockton Center for International Law of the US. Naval War College says, "Any case in the US would have to overcome Chinese sovereign immunity of assets by using FISA, which shields governmental property from jurisdiction/ attachment unless it is a commercial venture, such as a state owned enterprise (SOA)."
While it may be tough, there could be at least some judges in the US who could see the merit in claims brought against China and possibly award billions of dollars as damages.
In India, the principle of sovereign immunity dictates jurisdiction, if any, of Indian courts over foreign sovereigns (in this case China). An exception to this rule, however, is found in section 86 of the Code of Civil Procedure, 1908. This section lays down that the only way a foreign state may be sued in an Indian court is by first procuring written consent of the Central Government certified in writing by a Secretary to the Government, and laid down conditions to this effect will have to be satisfied. One of the conditions laid down is waiver of immunity, and Indian courts have in the past held that waiver in this regard may be construed to be implied if there is failure to appear and claim such immunity " although this was in cases involving enterprises owned by foreign states, and not suing the foreign state itself.
While there is precedent as to the suing of SOA of foreign states inasmuch as for breach of contract, there seems to be nothing to shed light as to suing a state for its alleged inaction in spreading a pandemic.
While tort law (a tort is a civil wrong independent of contract for which damages may be awarded) could be argued by those wishing to carve a niche in that regard, the law in that regard in India is unfortunately still at a nascent stage, and needs to fully develop " although even then jurisdiction in that sense would play a big role. However, we could see the law evolve to award damages for tort given the peculiar circumstances in this case.
Today, as critics argue, there is a wrong done which no one can deny, which in turn leads us to a possibility of courts across States seeing merits in the claims against China. While in the past such action would have been prevented by using political means, this time, that may not be the case since the economic structure of the world has come to the brink on account of the pandemic. While in the past governments would have been more concerned about foreign relations, we could be moving toward a situation where nationalism triumphs globalism and the damage to the economy of various states would involve legal action, if not, harsh measures politically against China.
As critics argue, China is at fault.
Dr. Kraska proposes countermeasures against China. In an article dated 23 March 2020 published on War On The Rocks, he writes:
'The menu for such countermeasures is as limitless as the extent that international law infuses the foreign affairs between China and the world, and such action by injured states may be individual and collective and does not have to be connected explicitly to the kind or type of violations committed by China. Thus, action could include removal of China from leadership positions and memberships, as China now chairs four of 15 organizations of the United Nations system. States could reverse China's entry into the World Trade Organization, suspend air travel to China for a period of years, broadcast Western media in China, and undermine China's famous internet firewall that keeps the country's information ecosystem sealed off from the rest of the world. Remember that countermeasures permit not only acts that are merely unfriendly, but also licenses acts that would normally be a violation of international law. But the limitations still leave considerable room to roam, even if they violate China's sovereignty and internal affairs, including ensuring that Taiwanese media voices and officials are heard through the Chinese internet firewall, broadcasting the ineptness and corruption of the Chinese Communist Party throughout China, and reporting on Chinese coercion against its neighbors in the South China Sea and East China Sea, and ensuring the people of China understand the responsibility of the Chinese Communist Party in unleashing a global contagion.'
This pandemic will end. How states react to the economic disruptions, will however, be very interesting. India, for one, will need to recover the losses caused by the lockdown, find quick solutions to losses sustained by micro, small and medium enterprises, generate employment opportunities in both the organized and unorganized sectors, and do all things in its power to protect the most marginalised and vulnerable sections of society. This will be no small feat to accomplish. The challenge will be tough.
From India's perspective, there is no better time than now for fulfilling Prime Minister Modi's Make In India dream as we seek to navigate one of the toughest times our country has ever faced since independence. From safety pins to the most complex of innovations, there is no better time than this for pushing for Make In India.
The writer is an advocate at the Bombay High Court with an interest in international law and global politics