Vedant Jain, IV year of B.B.A.,LL.B.(Hons.), School of Law, University of Petroleum and Energy Studies, Dehradun.
In the study of International Law the Trail Smelter Arbitration case leads the foundation when it comes for trans-border state responsibility and making reparations for nation’s acts. The world is now struggling with an unprecedented case of transboundary harm in the form of COVID19 pandemic that might have originated in mainland China. The Trail Smelter case principle suggests China’s legal responsibility for the harm occurred by this pandemic, the role played by the World Health Organization (WHO) in handling this global crisis and the collective responsibility owed by them.
States have several obligations when it comes to the new outbreak of diseases under international law. Obligations such as to prevent spread outside its border and also have obligations under WHO’s International Health Regulation 2005 (IHR) a binding treaty to which China is a signatory. Article 6 states a party “shall notify WHO … within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory” and article 7 states that a state must share all information regarding an “unexpected or unusual public health event” with the international organization, despite the binding provisions the signs of novel coronavirus was visible in China in the late-November where it was spreading among a small cluster of human groups but China reported this disease to WHO on 31st December showing its clear intention of hiding the disease from the world, China held new-year celebrations and allowed international travel. The first case outside China was reported on 13th January in Thailand and the WHO had evidence of first time human-to-human transmission on 22nd January but after almost 2 months later the WHO officially declared the COVID19 as an outbreak. This timeline of responses by China and later on by the WHO shows its “seriousness” in the handling of the virus whose impact on the citizens and economies around the world is visible.
China being an authoritarian state who controls everything about the health and food regulations in the country and many scientists and experts believe that the source of the virus is the Wet market of Wuhan in Hubei province of China. The negligence of China has brought the lives of millions at stake, filling hospitals and cemeteries across the global and many of the economies are on the verge of collapse. The journal Scientific American reports that “independent teams have suggested in preprint studies that pangolins may have been an intermediate host” of the virus that most likely originates in the region’s bats. Italy recently traced its spread of the virus in the country by the two tourists from Wuhan who visited the country in mid-January. Dr. Li Wenliang who was the first person to indicate at the possible new virus was being jailed and after his death seeing the consequence around the world China issued to his family a public apology for his negligence on not responding to the warning, this incidence shows the world the China’s Communist Party secrecy and self-interest against the lives of people.
On January 23 when China announced steps to quarantine Wuhan a significant number of its citizens travelled around the world. The Chinese government also covered-up the news of the outbreak of the virus by cracking down on doctors like Li- Wenliang who issued multiple warnings concerning the severity of the virus. Chinese government knowing the severity of the virus confirmed on 20 January about the community transmission when their citizens were travelling around the world, not only China but WHO as subservient to Chinese superpower lauded China in its reports for the handling of the crises and not inquired about the delay in sharing of information, lack of transparency in health issue of such severe concern.
WHO is also called into question for its silence on the potential threat of the virus. WHO could have forced China to suspend the trans-border travel and inform the world at the earliest about the disease in China at the moment it gained the knowledge. In Bosnian Genocide case, it was stated: “as for the obligation not to harm the rights and interests of other states, the relevant duty to prevent the transboundary spread of contagious diseases originating on its territory is an obligation of conduct, not of result”.China as well as WHO had this obligation on them.
Customary international and 2001 Articles of International Law Commission on State Responsibility’s article 31 states that a state that has committed an internationally wrongful act is obligated to make full reparation for the injury caused by the act. In the Chorzow Factory case the PCIJ stated that a “state must wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. In the case of a pandemic, conditions cannot be restored like it was before, so the appropriate reparation must be in the form of monetary compensation. The question in this context is upon the nexus between the wrongful act and the damages. The Chinese administration did not specifically spread the virus but it also did not stop its spread appropriately i.e. it allowed it to happen, therefore in such a situation, it places normative causality on them.
ICJ dealt with the question of reasonable nexus in the case of Corfu Channel and Tehran Hostages cases in which it was not clear whether the state had specifically committed the wrongful act or not. The ICJ held that even if the state did not commit wrongful act or omission, the states still have the responsibility to take all the appropriate and necessary steps to stop the commission of the wrongful act in the first place and therefore in both the case it held Albania in the former case and Iran in the latter to make reparations in monetary form. Thus, if it has been proved that a state violated its duty to prevent certain wrongful acts from happening, all the damages become imputable in their entirety. The Chinese government and WHO under Chinese administration pressure did not take the necessary, appropriate and reasonable steps to inform other countries at the earliest possible moment. The biggest and most important factor here is transparency which is lacking at present from the Chinese officials. The most affected and vulnerable to this virus are the third world countries which do not have capable health infrastructure nor the capital to develop it (by delaying the spread through lockdown). The gigantic impact on the lives of people and the economy of a country is unimaginable. Thousands of lives have been lost, people suffering from food and the worst affected are the poor and underprivileged persons of the society.
If we believe what china says about the genetic strain of the Virus or the place of its origin i.e. Wet market, then, China has to make reparations according to Article 31, 34, 39 and 36 (1) of the ILC Code, 2001 and because of the breach of the international obligation of essential importance to safeguard human beings. In the Trail smelter case in which the Arbitral Tribunal affirmed this principle that a state owes all times a duty to protect other states against injurious acts by individuals from within its territory.
In the Trail Smelter dispute, Canada knew that it was in its interests to take responsibility for the harm the smelter had done to American farmers. Not only did acceptance of responsibility help maintain peaceful relations with its neighbour, but it also served Canada’s direct economic interests. After all, Canada was determined to mitigate the smelter’s harm to keep it operational as an important economic contributor to Canada and the British Empire. China should not see this as a threat rather it is an opportunity for China to make things right and set a really good precedent for the other nation. It also presents the opportunity for the WHO to make China pay for its wrongful act under whose pressure the WHO did not act reasonably and cautiously for stopping the spread in other nations.WHO conduct is also forcing the US to cut its funding. China can grow into a world leader and reboot the global economy. It is also a matter of human rights violation by suppressing the people who revealed the truth. By making reparation and taking responsibility for the act China can change its image whose intentions for global well-being are more often questioned. Reparations could serve in the long-term economic interest of China.
Bosnia and Herzegovina v Serbia and Montenegro, (2007) ICJ 2.
Art 31, Responsibility of States for Internationally Wrongful Acts 2001.
Germany v. Poland, PCIJ Rep., Series A, No. 9 (1927).
The United Kingdom v. Albania, ICJ 15 XII 1949.
United States of America v. Iran, (1980) ICJ Rep 3.
The United States v. Canada, Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941).