Background and Introduction
Between Covid-19 being dubbed as the “Chinese virus” and the Chinese being vilified for their traditional food habits, the People’s Republic of China has witnessed countless controversies over the recent pandemic. Several studies including the World Health Organisation have shown how the virus originally bred in bats and snakes and have attempted to trace the various pathways in which it could have proliferated into the human lungs. Undoubtedly, human consumption of these host animals makes up the most direct and unbridled pathway of transmission of viruses into the human body. These carrier animals have been sold in China’s infamous “wet markets” which are notorious for their sale of exotic diseased wild animals and unsanitary conditions.
Be that as it may, it is hardly fair to censure China’s traditional cuisine or condemn their consumption of wild animals as animal cruelty, while animals are killed for food and sport in various communities over the globe. Since it is the choice of food that determines our place in food web and not vice versa, to seek normality and uniformity in choice would be a sheer excuse for xenophobia at worst and hypocrisy at best. However, the scorns are not only for the culture or taste of China but also for their downright lack of state responsibility.
Upon learning of the possibility of these animals forming the ecological reservoirs of Coronavirus, the world community saw China closing down its wet markets in Wuhan and other affected cities and banning the sale and consumption of wild animals. However, not much later, have people have come to realise that it was nothing short of a damage-control manoeuvre. Not even in a month’s time, when the entire world is struggling to fight the virus, China has re-opened its wet markets and legalised the consumption of bats and other carriers of the virus. Not to mention the failure to control the illegal market that rather got a boost from the absolutely titular ban. Even when it was in force, the ban did not include the trade of fur or medicine harvested from these diseased animals.
Determining the Liability
Chinese government labs only released the genome after another lab published it ahead of authorities on a virologist website on January 11. Even after that, China kept the WHO stalling on details of further developments. Between the time the genome was fully decoded on March 11 and the WHO declared a global pandemic on January 30, the virus spread by a factor of nearly 400 times. Also, a report by Caixin on the Chinese province of Heilongjiang said that a considerable percentage of asymptomatic cases has not been reported—which amounts to about 50 percent more known infections in China.
States Parties to the International Health Regulations (2005) have an obligation under Article 6, Annex 2 to assess and notify WHO of all events occurring within their territories that may constitute a public health emergency of international concern. While not communicating the discovery of a novel virus capable of causing such a damage to mankind, China has flouted these regulations. China was also supposed to present regular epidemiological reports to the WHO under these regulations which were not submitted.
The law has been settled since the Trail Smelter arbitration, whereby it was decided that no nation may use its territory or allow such use of its territory that may cause damage to the people or property of another State. This notion, primarily of international environmental law must be borrowed into the current pandemic outbreak as Article 12 (b) of the International Covenant on Economic, Social and Cultural Rights provides for improvement of environmental hygiene as a precondition for right to health.
Article 2 of ARSIWA states that to constitute an internationally wrong act of a State it must firstly, be attributable to it and secondly, must constitute a breach of an international legal obligation in force for that State at that time. This two-fold test has been adopted by the ICJ in the US Embassy case amongst many other instances. Furthermore, a State has a duty to protect other states against injurious acts by individuals from within its jurisdiction at all times.
Similarly, Principles 11 and 21 of the Stockholm Declaration also call for responsibility of States for ensuring appropriate living conditions not just for the flora or fauna but also for the human lives that form part of the biosphere. This document although does not create a binding obligation on China by virtue of merely being a declaration, its principles have nevertheless formed an integral part of a legally binding custom of international environmental law.
Having succinctly established the causal link between the Chinese wet markets and the virus outbreak and the insensitivity of the Chinese government towards control of the spread of such disease clearly fulfils both requirements for responsibility of states under the ARSIWA as well as the Stockholm Declaration.
In determining the responsibility of a state for a transboundary wrong, the conduct of the State before or after the injury, makes it attributable if it directly approves it, or impliedly, gives tacit approval by negligently failing to prevent the injury, or to investigate individual. China has essentially deceived the WHO by repeatedly downplaying the effect of the virus and has refused several offers for investigation by the Centres for Disease Control and Prevention and the WHO for a very long time. Therefore, China clearly has failed to exercise the necessary due diligence for preventing this horrible injury.
Conclusion
Recognizing the fact that in conditions of modern life, many activities may exact a high toll on life and limb and property, society has had to make several choices: (a) to proscribe the activity or enjoin its conduct; (b) to allow it for its social utility but specify conditions or prescribe the manner in which it would be carried out; or (c) to tolerate the activity on condition that it pays its way regardless of the manner in which it was conducted.
A paradigm scientific reasoning behind the need for a permanent ban can be found in an analysis by the Wildlife Conservation Society. Therefore, a breach of all the above-mentioned legal obligations constitute violations of substantive international law that attract the compulsory jurisdiction of the ICJ to direct a ban on the wet markets. Furthermore, failing compliance, the ICJ must impose liability for the tremendous trans-boundary damage caused and award necessary punitive and exemplary damages as were done in Costa Rica v. Nicaragua. Furthermore, as far as protection of a traditional cuisine is concerned, there is little culture attached to consumption of exotic animals. Be that as it may, protection of such a practice cannot be justified at the cost of human lives.
Through the conscience of its population, the Chinese Communist party (CCP) must reflect on the trade and livelihood implications on the Chinese economy. The Covid-19 crisis and its potential attribution to China has subverted the fundamental balance of camaraderie between China and other states. The absence of an explicit legislative framework might have offered China a protective veil in terms of responsibility and liability, but as a matter of policy the CCP must attempt to restore the fundamental balance of comity among states. Needless to say, the prolonged failure will not only affect China economically but also politically in terms of international relations.
China’s insensitivity to the pandemic evidences its disrespect to the human lives in other sovereign countries and therefore, although any stringent directions by the ICJ may never be implemented completely, it will definitely show the conviction of the World Court and the collective condemnation of China’s negligence by the world community. It makes little sense for several countries to continue taking the collective blame for being unable to control the outbreak while the Chinese economy continues to profit from its wet markets. In cricket too, it is the batsman that is in control of the bat and its movement. Thus, should somebody get hurt by a conscious swing of the bat, it shall be the batsman in control of it that is held responsible and not the umpire.