This is a continuation of my previous article, where I discussed the liability of China for the coronavirus pandemic under International Law. In that article, the possibility that the Chinese Government had suppressed information about the coronavirus that could’ve led to a reduction in the impact of the virus contrary to the provisions of the 2005 International Health Regulations were considered.
Other negligent acts of the Chinese government were like the faulty medical equipment sent to the Netherland, Slovakia, and Spain were explored. The implications of this and the possible remedies for the affected countries are considered below.
Usually, the product liability laws of a country determine the liability of a manufacturer, supplier, or retailer towards the customer for injury or loss resulting from a defect in that product and they differ from country to country.
Product liability refers to a manufacturer or seller being held responsible for giving consumers defective products especially when consumer health and safety are at risk or injury or death has resulted from such defect.
Generally, every product is expected to meet the ordinary expectations of a consumer or its manufacturers and producers would be liable to legal action. In international law, some treaties guide situations such as this. For European countries who are the most affected by the faulty PPE, the Product Liability Directive is usually the authority to visit, read concurrently with the specific treaty or contract guiding this transaction.
Many calls have been made to sue China or make them liable. This seems like an impossible task for the following reasons;
The much talked about “weakness” of International laws in the implementations of sanctions and ensuring compliance to decisions. This is possible because submission to jurisdiction does not imply submission to the execution of judgments.
The unsuitable nature of using the domestic laws of a state to try another sovereign, protected by the doctrine of sovereign immunity.
The South China Sea Arbitration Case is an example of the weakness of International law. In that case, Brunei, China, Taiwan, Indonesia, Malaysia, Philippines, and Vietnam claimed interest in acquiring rights to fishing stocks, exploration of crude oil, and control of shipping lanes of the south sea. In 2016, an arbitration tribunal constituted under the United Nations Convention on the Law of the Sea ruled against the People’s Republic of China, and China and Taiwan refused to recognize the tribunal but instead insisted that the issue be resolved through Bilateral trade agreements.
I doubt that the issue of data-disclosure would provide the form of relief that most nations seek. This is because the constitution of the World Health Organisation does not provide a strong punitive base for failure to comply. Though the west has consistently accused the World Health Organisation of being soft handed with China, so much so that the United States recently withdrew its funding support, I think there is not much that WHO could have done in the situation and this is not absolving them either from being diligent in their duties.
However, a viable option would be exploring the circumstances that led to the emergence of the pathogens. If you can’t follow the virus, follow the market. Ordinarily, this should not be possible, because States should not be responsible for actions of Individuals especially private individuals.
Recall the Trail Smelter Dispute I discussed in my previous article, that established what we now know as the harm principle in the environmental law of trans-boundary pollution.
In that case, the court propounded the following theories:
1. No country has the right to use or permit the use of its territory to cause injury to another;
2. A polluting state must pay for damages caused by their polluting activities.
In 2003, China’s wet markets and wildlife trade industry were found to be responsible for the SARS outbreak that killed over 800 people. China for long has viewed the trade in wild animals and birds as an exotic meat industry, boosting their economic resource.
In response to the threats posed by the disease outbreaks, China altered the provisions of its wildlife protection law but its implementation remained poor. The lackadaisical attitude towards implementation did not hinder the issue from resurfacing again, with a new name, the Coronavirus.
China’s continued negligence in regulating the consumption of its exotic love for wildlife caused harm to many other countries outside its territories. This is because despite knowing that the actions of its wildlife traders in Wuhan go against the goals of the World Health Organisation as captured in Article 1 which is the attainment of all people’s highest level of health, it failed to take the necessary steps for the protection of the world.
Therefore, although countries are not ordinarily liable for the actions of individuals, China had the duty to protect other states from injury resulting from the actions of its citizens or pay damages.
This provision can, therefore, invoke the jurisdiction of the International Court of Justice.
As was stated previously, International principles are not strong enough to compel a sovereign to submit to the jurisdiction of execution of the judgment by a sovereign. The best way to utilize this jurisdiction would be in an advisory capacity, which is obtaining the opinion of the court.
The advisory opinion of the court on the issue can be obtained and used to assess the legal liability that would serve as a yardstick for other governments to use to respond politically or economically.
This strategy has previously been used before to determine the legality of Israel’s wall of separation and the validity of Kosovo’s declaration of independence. If the ICJ finds China liable, National governments would be able to apply countermeasures such as the seizure of international assets, to make China pay.
This method was used against Russia after the judges held that Russia had breached the terms of an international charter. It was also used against Argentina on allegation of a massive sovereign debt default in 2002. Currently, Nigeria and P and I D seem to be in the same tussle.
Another option is for States to punish China by restricting trade ties, imposing sanctions, asking the Chinese Government to purchase shares in companies that it is interested in at pre-corona price rates. This can lead the United Nations to pass a resolution restricting travel to and from China, downgrading ties or any other such gesture
Ndam Nander Esmeralda
thesmeraldabali @ gmail.com
NYSC Associate
Paul Erokoro SAN and co.