Disclaimer: This article examines the International Law position surrounding the duty to report public health emergencies. It is not intended to “take sides” or to place blame on any organisation, party or country. It should be said that this article is written with the information available at the time of publication and that, to date, China has not provided its side of the story. Therefore, this article is largely written on various factual assumptions which may not turn out to be true.
Amidst the novel coronavirus outbreak which is ravaging the globe and changing the fabric of our social, economic and professional lives, very little is said concerning the legal accountability (if any) for the Coronavirus outbreak which is believed to have originated in a “wet market” in Wuhan city (Hubei province) in China.
This article examines the public international law position as to whether China has violated international law.
This new strain of coronavirus (named SARS-CoV-2) causes a disease called COVID-19. The new strain is related to SARS-CoV-1 which saw an outbreak in the years 2000s. The origin of SARS-CoV-1 is also believed to have originated from another “wet market” in China.
With the outbreak of the novel coronavirus (SARS-CoV-2), it is widely believed that China delayed the reporting of the problem to the World Health Organisation (WHO). Initially, the Chinese authorities denied the existence of this new viral strain. The problem, at least to the outside world, appears to have been shoved under the carpet and dissenting doctors were arrested and silenced.
It is believed that the first case was reported on 1st December 2019 but some sources report that there were cases as early as 17th November 2019. By the Chinese authorities’ own admission to the WHO, the first diagnosed case took place on 8th December 2019. Despite this, China did not concede that there was a problem until 21st January 2020. On any view, this would amount to a notable delay.
The International Health Regulations (IHR) of 2005 is a legally binding instrument of international law. Whilst the current version of these regulations go back to 2005, the current IHR are a product of a rich history of international instruments going back to 1851 with the International Sanitary Conference held in Paris to tackle the cholera epidemics which had hit Europe in 1830 and 1840.
Under Article 6(1) of these regulations (the IHR), a state party must, within 24 hours, report to the WHO all events which may constitute a “public health emergency of international concern”.
It is arguable that China has violated international law by delaying its reporting to the WHO by more than one month on any view (perhaps even by nearly two months) where the IHR requires a report within 24 hours of events which may constitute a public health emergency. China knew that there was a problem with a SARS-like disease in December 2019.
Moreover, it is also arguable that China has violated the Biological Weapons Conventions (BWC) which was opened for signature in April 1972 and entered into force on 26th March 1975. China is a State Party to the Biological Weapons Convention.
The BWC states in Article I that each state party undertakes to never in any circumstances to “retain microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes”.
It is arguable that the omission to report or the decision to not report the event to the WHO thereby incurring a delay amounts to “retention” of a microbial or other biological agents. Whilst this is a novel legal argument, it may be said that the delay and non-reporting is a form of unlawful retention in breach of the BWC’s provisions.
If so, state parties to the Treaty could lodge a complaint with the UN Security Council. Alternatively, if it can be proven that a cover-up was committed by China by high-level individuals, a case could be made to the International Court of Justice (ICJ). However, the ICJ cannot compel a state to participate in its proceedings and China would have to agree to the case being heard. That is unlikely to happen.
Once this pandemic is over, the international community should contemplate whether there needs to be a fresher and clearer legal framework in relation to viral outbreaks and other diseases. Alternatively, the international community should also contemplate whether there needs to be stricter consequences for such breaches of international law if they have occurred.
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