In my previous article, I analyzed the economic implications of the spread of coronavirus. Since then, the world has lost a lot of money, totaling about 2.7 trillion dollars according to early estimates by Bloomberg. 

In some cycles, there have been calls for somebody to take responsibility, the Florida class action case and the US medical health-workers case are notable instances of this outcry. The question, therefore, remains whether China can be held liable for the losses.

According to the Washington Post, the Chinese communist regime intentionally misinformed the world about the dangers of the virus and hindered a global response that might have prevented a worldwide contagion.  

The crux of their report was that the first case of COVID-19 appeared in China’s Hubei province on November 17th, 2019, the Chinese officials knew that the virus was capable of human to human transmission because its doctors and nurses were falling sick, but instead of alerting the world, they tried to cover it up and punished the doctors who tried to warn the world. 

On January 15th, 2020, the head of the Chinese Centre for Disease Control also declared on television that the risk of human to human transmission was low although at that time more than 1700 workers had already been infected.

According to the Washington Post, this and many other actions and inactions hampered the world’s efforts to prepare for the virus, and even when the United States tried to use a back door to get samples, it was hampered and eventually, a lockdown was imposed in Wuhan which signaled the severity of the matter.

A University of South Hampton study showed that if Beijing had acted in November 2019, the cases of coronavirus would have been reduced by at least 95%, thereby preventing the pandemic.

David Ignatius also reported that the virus may have been as a result of an accidental leak of an engineered bioweapon or a deliberate release. It will be recalled that the use of chemical and biological weapons is prohibited by article 1 of the 1972 Biological Weapons Convention and emphasized in articles 6 and 9 of the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War.  An individual in breach of this could be prosecuted for war crimes.

International responsibility results from an internationally wrongful act that may be committed by a state directly or by persons and entities who can espouse at the international level. Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts recognizes that a breach of an obligation for the protection of the fundamental interests of the international community is a crime. However, an internationally wrongful act which is not a crime is considered an international delict.

In International law, countries are bound by the treaties or conventions that have been ratified by them. However, the Trail Smelter Arbitration which can be considered as a jus cogens is the foundation on which the principle of transboundary environmental harm was laid.  In that case, the courts held that states must prevent transboundary environmental harm and that states should pay compensation for any harm done.

This raises the question of whether the actions and inactions of the Chinese government can be regarded as a crime or an international delict.

The 2005 International health regulations which focus on establishing and improving the global capacity to prevent, detect, and respond to infectious diseases required countries to improve international surveillance and reporting mechanisms for disease outbreaks. China is a signatory to this regulation.

Therefore, by article 6 and 7 of this regulation, an affected country is expected to notify the WHO of its problems within 24 hours of assessing whether the events could constitute a public health emergency and the WHO can only act on official information from a national government even if there is clear evidence of an outbreak threatening other countries. This shows that China had an obligation to notify the WHO of the events happening in its territory as early as December 2019 which it failed to do.

 Some have argued that the government of China cannot be liable because it is protected by the doctrine of sovereign immunity and the regime’s misconduct does not constitute sufficient grounds for a waiver of that immunity.  

Sovereign immunity is the doctrine that a sovereign is immune from civil and criminal prosecution in the courts of another state. This is because of the doctrine of sovereignty that provides that a sovereign cannot be subjected without its consent to the jurisdiction of another.  

However, there are good reasons for maintaining that the doctrine of sovereign immunity does not apply in this circumstance. This is because China ratified the 2005 International health regulations. This and the principles laid in the Trail Smelter Arbitration are good reasons for believing China has submitted itself to the adjudication of the international community.

Another controversial aspect of this immunity is that there are two aspects to it, Acta jure imperii (public acts of government) and acta jure gestionis (commercial acts of government). This principle differentiates public acts of government and commercial acts of government. It only grants immunity to public acts of government (acta jure imperii).

The Florida Class action is based on the principle of acta jure gestionis.

It is also common knowledge that most countries import the required personal protective equipment and pharmaceuticals for combating the COVID-19 from China as a global supplier of the equipment.

On the 6th of April 2020, the Chinese government was accused of sending faulty medical equipment to the Netherlands, Slovakia, Czech Republic, and Spain. The most affected country from the sale was Spain who had to withdraw over 58,000 coronavirus testing kits that were purchased from a Chinese company on March 27th.

 Should the affected countries choose to pursue a legal claim, they would most likely allege that the acts complained of constitutes acta jure gestionis, that is commercial acts of a government and are outside the protection of sovereign immunity.

However, the Chinese Government has implied that the equipment was donated and those that were sold were sold by the Shenzhen Bioeasy Biotechnology, which was not licensed to produce the said equipment. The lab in its defense, claims that the test kits were not properly used.  

In the next part of this article, I would discuss the implications of this, concerning international trade laws.

Ndam Nander Esmeralda
NYSC Associate at Paul Erokoro SAN and Co.
thesmeraldabali at gmail.com