Dissension on Covid Reparations

Where there is a right there is a remedy (Ubi jus ibi remedium). Associating the phrase with international law, it arises out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. In international law, a breach of an international obligation gives rise to a duty to repair the harm caused. The main purpose of reparations is to resume the situation as before the damage caused. As we all know, the past year was very sorrowful and a stressful year that has been passed. The cause which is considered to be a severe epidemic that couldn’t be forgotten for years to come the Severe Acute Respiratory Syndrome Corona virus 2 (SARS-CoV-2) also commonly known as covid-19 caused a great damage in the fast moving world by halting its movements and showcasing a fear of death. Even though there is some kind of hope among us and a light named vaccine has been shown

among us, we shall never forget the fearful days we had. Initially, the effect was not considered to be serious but later on the deaths of many resulted in a fear that quarantined all of us into our homes and our safe places, restricting from meeting friends, family and loved ones. The losses we have suffered and are suffering are irreplaceable and cannot be compensated by anyone. In this paper, we shall discuss regarding the compensations, i.e., reparations in more of legal point of view and the acts and forums that support the reparations to be paid and also a clear view regarding who shall pay for the reparations, even though all our thoughts go directly to china but necessary justifications are also required if a country is asked to atone for its deeds. This paper shall also discuss about the reasons why china shall not atone and pay reparations. Let us see the various facets on responsibility of the state in this mass epidemic and what reparations to be given for the violations.

LEGALITY OF REPARATIONS:

Reparations may recently be the hot topic due to covid-19 but it has always been widespread from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible.1

International law is developed between states, based upon the principle of sovereignty and, as such, has been dictated largely by the interests of states rather than individuals. . The international law on state responsibility administers the wrongful act done by the states which is largely codified in the International Law Commission (ILC) Articles on State Responsibility, drafted over decades by the ILC and accepted by the United Nations (UN) General Assembly in 2001. The recognized forms of reparation are variably understood as restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition. These forms are recognised in the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2006.2

1. Luke Moffett, Cheryl Lawther, Sunneva Gilmore and Ebba Lekvall, The Limits of the Law: Putting Reparations into Practice, Ejil:Talk! Blog of the European Journal of International Law, https://www.ejiltalk.org/the-limits-of-the-law-putting-reparations-into-practice/s

2. Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflicts, Cambridge Studies in International and Comparative law, Pg. No: 22,23, (2012), https://www.corteidh.or.cr/tablas/r31595.pdf

The crux principle of reparations under international law lies mainly in the relation between the states. Further the principle applies to the breaches of international obligations by states and also by individuals.3

Predominantly, reparations and compensations are focused under human rights and humanitarian law rather than state responsibility, but still there are certain treatises that focus reparations under state responsibility. Also customary international law, forbid a state to invoke national law as a legal defense in an international dispute involving allegations of wrongdoing by the injured state. Such a principle pertains to the setting of international disputes, which is where the main precedents and doctrines of international law relative to reparations are fashioned.

The bottom line principle of international law is laid down by the Permanent Court of International Justice in the case concerning the Factory at Chorzow. It came upon with the principle of restitutio in integrum which states that, “reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability have existed if that act had not been committed”. The same principles of reparations and compensations under state responsibility are also applicable to the international humanitarian law which was very explicitly evident in Article 3 of the Hague convention respecting the Laws and Customs of War on Land which was furthermore reiterated in Article 91 of Additional Protocol I. The approach to reparations varies considerably depending on the applicable provisions and the issues.4

Restitution is defined in Article 35 as the effort ‘to re-establish the situation which existed before the wrongful act was committed’. Such a remedy is rather exceptional. It is usually illustrated by reference to the Temple case before the International Court of Justice (ICJ) in which Thailand was ordered to return religious relics taken from a Buddhist temple located in Cambodia. 5

3. Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflicts, Cambridge Studies in International and Comparative law, Pg. No: 22,23, (2012), https://www.corteidh.or.cr/tablas/r31595.pdf

4. Emanuela Chara Gillard, Reparation for Violations of International Humanitarian Law, Volume: 85, International Review at the Red Cross (IRRC), 529, Refered page: 532, (2003), https://www.icrc.org/en/doc/assets/files/other/irrc_851_gillard.pdf

5. Octavio Amezcua-Noriega, Reparation Principles under International Law and their Possible Application by the International Criminal Court: Some Reflections , Essex Transitional Justice Network (ETJN), Pg. No: 2,3, (2011), https://www1.essex.ac.uk/tjn/documents/Paper_1_General_Principles_Large.pdf

Article 35(a) and (b) of the ILC Draft Articles indicates that restitution is not the appropriate form of reparations in circumstances where it is ‘materially impossible’ or would ‘involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’. Compensation, resting on the fungibility of money, is more widely used to overcome the adverse consequences caused by illegal acts. In the Chorzow case it was declared that where restitution cannot be provided to the wronged state, then the wrongdoer should be required to compensate up to the level of the value attributed to whatever was lost, including loss of profits. Articles 36 and 37 go along with this approach of full reimbursement, without qualifications based on capacity to pay. Satisfaction is the third, and lesser known, manner of providing reparations. The ILC Articles make it a residual category in relation to restitution and compensation.6

As explained by du Plessis, ‘satisfaction provides reparation in particular for moral damage such as emotional injury, mental suffering, injury to reputation and similar damage suffered by nationals of the injured state’. Customary international law, as well as the ILC Draft Articles of State Responsibility, imposes an undifferentiated burden, as stated in Article 37, on the wrongdoing state ‘to make full reparation for the injury caused by the internationally wrongful act’. As such, it gives very little guidance in specific situations where a variety of considerations may make the grant of full reparation undesirable for various reasons, although commentary by the ILC on each article does go well beyond the statement of the abstract rule. The Universal Declaration of Human Rights shifts the locus of relief to national arenas and away from international disputes between sovereign states. Individuals are endowed with competence, and the notion of wrongdoing is generalized to encompass the entirety of human rights. Article 8 reads: ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental human rights granted him by the constitution or by the law.’ Of course, such a right tends to be unavailable where it is needed most, although the existence of the right does provide a legal foundation for reparation in future circumstances when political conditions have changed.7

6. Octavio Amezcua-Noriega, Reparation Principles under International Law and their Possible Application by the International Criminal Court: Some Reflections , Essex Transitional Justice Network (ETJN), Pg. No: 2,3, (2011), https://www1.essex.ac.uk/tjn/documents/Paper_1_General_Principles_Large.pdf

7. Helene Pellerin, Claims for Reparations, Politics and China, CIPS Blog, https://www.cips-cepi.ca/2020/07/01/claims-for-reparations-politics-and-covid-19/

COVID – 19 AND CHINA:

Covid – 19 was a pandemic that has created a greater repercussion all over the world. The world is facing an unprecedented crisis. Extensive lockdowns, adopted to slow transmission of the virus, restrict by necessity freedom of movement and, in the process, freedom to enjoy many other human rights are few such measures which could inadvertently affect people’s livelihoods and security, their access to health care (not only for COVID-19), to food, water and sanitation, work, education – as well as to leisure. Measures need to be taken to mitigate any such unintended consequences.

It was found that the first case of corona virus arose from the state of china. It’s been almost 1 year since the outbreak of the pandemic. As a way of seeking reparations for the enormous loss caused by the Covid-19 pandemic, lawyers from all across the globe have dragged the People’s Republic of China to court in an attempt to hold the Nation’s guilty on account of gross negligence by causing a delay in informing the World Health Organisation.8

First, every State has the obligation to inform the WHO of anomalous situations that have occurred in their territories related to human health. This duty is expressed in Article 7th of Regulations, “If a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information”. In such a case, the provisions of Article 6 shall apply in full. The referred Article 6 gives a period of 24 hours for this communication to be carried out. Press reports say it took China more days than expected to disclose the information. The Chinese government’s omissive conduct, therefore, would be in violation of its international obligation arising from the WHO Regulations.

To be sure, the determination of a valid legal response differs in theory and practice. Theoretically, there are several principles of international law that make it incumbent upon States to practice “good neighbourliness”. This is expressed in written law (in the manner of treaties and conventions), as well as opinio juris, such as judgments from the International Court of Justice (ICJ).9

8. Helene Pellerin, Claims for Reparations, Politics and China, CIPS Blog, https://www.cips-cepi.ca/2020/07/01/claims-for-reparations-politics-and-covid-19/

9. Prateek Singh, ‘Batting’ for the other team: Defending China Against Claims for Reparations for the spread of Covid – 19 under International Law, The London Scholl of Economics and Political Science, https://blogs.lse.ac.uk/ipa/2020/06/16/batting-for-the-other-team-defending-china-against-claims-for-reparations-for-the-spread-of-covid-19-under-international-law/

The root cause of China’s alleged negligence comes from when WHO’s country office was informed by the Chinese government about the outbreak. At that point, the Chinese officials reported no possibility of human-to-human transmission, and this negligence is what helped turn a small outbreak into a global pandemic, urging the global community to seek an apology from China.

Besides, a global pandemic does not happen when a new infectious pathogen emerges, but when, due to a failure to provide public services in regulated food and marketplaces which would avert the transmission of pathogens and control their movements, it starts dissemination, as has been the case in Wuhan. The recklessness shown by Chinese health authorities makes China a guilty of Article 7(1) of the ICC as per the eleventh act, namely, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” as mentioned under ‘crimes against humanity.10

A neglected, if not a forgotten child of international law is an erga omnes (“towards all”) obligation. When States have an obligation to protect certain rights that are of importance to the international community as a whole, those obligations are erga omnes. While jus cogens deals with the ‘acceptability’ of a set of norms in international law, erga omnes obligations enumerate the norms themselves. Therefore, erga omnes obligations are not necessarily jus cogens. However, they could be read together to determine the widely accepted, absolutely non-breachable principles of international governance. It may be surmised that recognised erga omnes obligations pertain to aggressive, intentional acts by a State that cause immediate and intentional harm to others. These elements are lacking in the case of COVID-19. It can be safely said that China has not breached any erga omnes obligation, since a duty of care to other nations in times of pandemics are not part of this body of international law.11

These are the various aspects on which the reparations and Covid - 19 relating china are discussed. There has been a strong debate between activists of both sides quoting various principles of international law.

10. Ipshita Chaturvedi, China’s State Responsibility for the Global Spread of COVID-19: An International Law Perspective, Issue No: 373, Observation Research Foundation (ORF) Issue Brief, pg. No: 4, 2020, https://www.orfonline.org/wp-content/uploads/2020/06/ORF_Issue-Brief_373-China-State-Responsibility.pdf

11. Prateek Singh, ‘Batting’ for the other team: Defending China Against Claims for Reparations for the spread of Covid – 19 under International Law, The London School of Economics and Political Science, https://blogs.lse.ac.uk/ipa/2020/06/16/batting-for-the-other-team-defending-china-against-claims-for-reparations-for-the-spread-of-covid-19-under-international-law/

SHOULD CHINA ATONE FOR ITS DEEDS?

The main question that revolves around this paper is should china heed for its deeds in the matter relating to the spread of the Covid pandemic that changed the lives of millions. The Chinese-origin virus has already claimed over six lakh lives, while more than 1.6 crore cases have been recorded so far. There are debts worth billions, nay trillions, of dollars and over 200 countries are on the road to ruin. Global economy wasn’t just hit hard, it has tumbled. But the Dragon, the Chinese isn’t hit or hurt, as reported by a daily: “China has become the world’s first major economy that’s shown robust recovery from the impact of the pandemic, with its GDP expanding 3.2% year-on-year in the second quarter, reversing a 6.8% decline in the first quarter”12 while the other countries of the world were sinking.

Ex President of the United States Donald Trump called for compensation from China for the economic costs of the virus. Some reports suggests that US officials were also discussing whether families of victims could sue China. Obiageli Ezekwesili, a former World Bank vice president, had called on China to pay reparations to African countries.13

In one case in the US state of Missouri, the attorney general, Eric Schmitt, filed a legal claim in federal court in April seeking cash compensation from China. The civil claim alleges that China responded slowly to the corona virus outbreak in Wuhan, which led to billions of dollars of damages to the economy. Mississippi announced plans to bring a similar claim. China has dismissed these out of hand as “absurd”.14

12. Bloomberg,China economy returned to growth last quarter as virus eased,The Times Of india Business(july 17,2020,15:12 IST), https://timesofindia.indiatimes.com/business/international-business/china-economy-returned-to-growth-last-quarter-as-virus-eased/articleshow/77008671.cms

13. Obiageli Ezekwesili,Opinion:China must pay reparations to Africa for its coronavirus failures,The Washington Post,(April,17,2020,12:45 a.m.) https://www.washingtonpost.com/opinions/2020/04/16/china-must-pay-reparations-africa-its-coronavirus-failures/

14.Luke Maffett,Why calls for reparations from china for corona virus are an unfeasible distraction,The conversation,(June,9,2020,10:10,AEST),https://theconversation.com/why-calls-for-reparations-from-china-for-coronavirus-are-an-unfeasible-distraction-13968

When these were discussed in the international forum by many people, the main issue still remains on what basis the reparations can be claimed, for that it was essential to prove the wrongful act or the intention to do a wrongful act.

Accordingly, under international law, every internationally wrongful act or omission of a State entails the international responsibility of that State. However, in order for an act or omission to be considered internationally wrongful, two constituent elements need to be met.

• First, the act or omission, in question, must be attributable to the State under the relevant rules of attribution in international law.
• Second; the act or omission must constitute a breach of an international obligation in force for that State at that time.15

Even where both these elements have been satisfied, a State may nevertheless avoid international responsibility, if it can establish one of six specific circumstances force majeure 16, distress17 ,state of necessity18 and counter measures 19, self-defence20 and consent21 that preclude the wrongfulness of the actions and/or omissions on the part of the State.

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15. Responsibility of States for Internationally Wrongful Acts 2001,Article 2: Elements of an internationally wrongful act of a State

16. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Article 23.

17. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, article 24.

18. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Article 25.

19. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, article 49-52.

20. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, article 21.

21. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, article 20.

In the present case, not much controversy exists over the attribution of the alleged acts or omissions to China. The allegations pertain to the actions or omissions of local Chinese government officials in suppressing critical information about the novel corona virus in the early weeks following the outbreak. Even though such officials may belong to the local/provincial government, from the vantage point of international law, a State is unitary, and no differentiation can be sought to be made between provincial and union governments.

Accordingly the alleged actions/omissions, albeit of local state officials, remain attributable to China under international law. However, the question of whether such acts or omissions constitute a breach of an international obligation binding upon China at the relevant time is more problematic and challenging.

In terms of treaty law, the International Health Regulations, 2005 (IHR), adopted by the World Health Assembly, the plenary body of the World Health Organization (WHO), is the sole binding legal instrument dedicated inter alia to the prevention, protection and control of “international spread of diseases”.

Article 7 read with Article 8 of the IHR obliges States to assess events occurring within their territory and notify the WHO within 24 hours of any event, including any “unexpected or unusual public health event” within its territory, regardless of its origin, which may constitute a “public health emergency of international concern”.22

Since China is a member of the WHO, it is bound by this reporting obligation, and by the actions/omissions of its officials in allegedly suppressing information from the WHO about a highly contagious virus despite having necessary information, may arguably be seen as breaching its international obligations.

THE ‘NO HARM’ PRINCIPLE:

Under customary international law, there appears to be no direct obligation upon States to report an epidemic outbreak. However, international law scholars have tried to argue for such an obligation under the general principle of state co-operation espoused in a number of international instruments, read in the context of an emerging “human right” to health. However, the legal effectiveness and customary status of such an obligation under international law at present remains uncertain.

___________________________________________________________________________22. Information and Verification: Revised International Health Regulations (IHR), Articles 7 & 8.

A more plausible international law obligation can however be made out under the “no-harm” principle, recognized and articulated in a number of significant international law decisions from the Trail Smelter Case (United States v. Canada)23 to the more recent Pulp Mills on the River Uruguay (Argentina v. Uruguay)24. The no-harm principle requires States to prevent and minimize any significant transboundary harm originating from any territory within their authority or control25. Although these decisions have recognized the no-harm principle in cases of transboundary environmental damage, the principle can also be extended to cover harm arising from the outbreak of highly contagious infectious diseases such as COVID-19. By suppressing information about the virus and allowing the spread of the virus overseas to continue unchecked in its crucial early weeks, China can arguably be said to have breached the no-harm principle.

Even after many cases and accusations against the country and its politics, china can still refuse to pay the reparations and cannot be sued anywhere else. There are some valid points on behalf of the country can still save it. When some dragged the People’s Republic of China to court in an attempt to hold the nation guilty on account of gross negligence by causing a delay in informing the WHO but it was practically difficult for the country itself to establish, particularly in view the lack of scientific information on the virus, that the virus can become a global pandemic, also the later appearance of the symptoms also caused the delay in establishing the message. However WHO had been informed by China’s Health Commission on 11th January about the forty cases that were found within mainland China. Since the number of symptomatic patients was relatively lower at the time, it was unforeseeable that the virus would turn out to be this fatal. Even before this many infectious diseases have been spread but they were not this fatal so it was highly unpredictable in the side of the Chinese government. Even if the allegations on china were to be proved then also it is not have always been for a country to compensate for the spread for infectious diseases and also it is one of the main reasons why the suit or allegations by the sates were made regarding the damage to economy and others and nit the spread of the disease because the reason being many states have not been keen to use customary law on state responsibility in the infectious disease context because of how political and epidemiological considerations align.

23. United States vs Canada, Arbitration Tribunal., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941)

24.Argentina vs Uruguay, ICJ GL No 135, [2006] ICJ Rep 113, (2006) 45 ILM 1025, ICGJ 2 (ICJ 2006), 13th July 2006

25. Access information on multilateral environmental agreements, https://www.informea.org/en/terms/no-harm-rule

Fulfilling treaty obligations to report disease outbreaks involves challenging scientific and public health questions and difficult political calculations.

Pathogenic threats with the potential for cross-border spread can appear in any country. For example, although the origin of the devastating influenza pandemic of 1918-19 remains unclear, the United States is on the list of potential countries of origin. The H1N1 virus that caused an influenza pandemic in 2009 was first detected in the United States26. This reality creates a shared interest among states not to litigate disease notification issues. Likewise, a state experiencing an outbreak will complain about irrational trade or travel measures other countries impose. However, next year, that same state might want to implement similar measures when another nation suffers an outbreak, which reveals reciprocal interests among states not to seek reparations for violating treaty rules on trade and travel measures.

There are litigations that are filed in many courts across the world and the chances of claiming reparations in the courts of other countries is generally not allowed under the international legal rules of sovereign state immunity. Sovereign immunity27 is a principle that protects states against lawsuits by foreign entities without their consent. The principle that shall be followed is that no country shall allow another country to be sued in its own courts, considering that the same immunity would be provided to it in return, when the need arises. Respecting the doctrine, Section 86 of the Indian Civil Procedure Code is formed in such a way, as to prohibit citizens from filing lawsuits against foreign nations without seeking prior approval from the central government. The United States too does not permit individuals from seeking reparations from other countries in its courts under its Foreign Sovereign Immunities Act. Even though there are exceptions to such provisions, such permissions are unlikely to be granted by governments, in order to protect their diplomatic relations with China. While historically reparations generally involved interstate negotiations about indemnities after a war, the lawsuits against China would constitute, if they were permitted to start, a form of compensation much more oriented towards revenge than about supporting victims. These lawsuits would also give other country courts the power to decide whether China is responsible and the amount of indemnities it has to pay as reparations to victims of the Corona virus. Chinese authorities are justified to fear a threat to their sovereign immunity.

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26. Prateek Singh, ‘Batting’ for the other team: Defending China Against Claims for Reparations for the spread of Covid – 19 under International Law, The London School of Economics and Political Science, https://blogs.lse.ac.uk/ipa/2020/06/16/batting-for-the-other-team-defending-china-against-claims-for-reparations-for-the-spread-of-covid-19-under-international-law/

27. sovereign immunity/wex/USlaw ,https://www.law.cornell.edu/wex/sovereign_immunity

Unlike other known limits to the principle of sovereign immunity found in trade agreements or in human rights treaties, which involve cooperation between states and victims, the lawsuits against China take the form of unilateral and adversarial measures. 28

The next thing the people can do is approaching the ICJ. Under Articles 21 and 22 of the WHO Constitution states could enforce ICJ’s jurisdiction into the matter in order to prosecute China. But the court can only ask China to provide reparations to other States when its guilt can actually be proven. Based on the ambiguity of the origin of the virus and the negligence of the international community as a whole, it seems unlikely that China may be held guilty of causing damage to other nations.

But before approaching the ICJ, it must be established the court has jurisdiction in this matter. Since the jurisdiction of international tribunals is absolutely consensual, China cannot be forced to undergo a trial, unless it voluntarily surrenders itself before the court. Although in such matters, the Security Council may pass a resolution to compel a state to submit itself to the court and give a binding effect to its judgment, the fact that China is a permanent member, vested with veto powers makes it invulnerable.

Though numerous claims are raised against China for being negligent in controlling the spread of Covid-19, such allegations have no effect without a solid proof. As far as lawsuits are concerned, owing to the doctrine of sovereign immunity, China is de facto insusceptible to municipal courts, whereas the ICJ has no direct jurisdiction in the issue.

Through this dissension we may conclude that atone for Covid – 19 is still an ongoing debate. China being blamed on the whole must be proven; only then the reparations could be claimed. This doesn’t mean that china should be let free from all the damages caused to the entire world as it transgressed and disrespected the law of nation. There are suits filed before the courts across the world to decide upon the negligence of the conduct of china in this pandemic. If the issues were taken on the grounds of individuals it would have went to next level of succeeding rather to be delayed as it focuses on the entire country. These arose due to political influences that are greatly affecting the individuals which are in much necessity to be fixed by the authorities.

28. Prateek Singh, ‘Batting’ for the other team: Defending China Against Claims for Reparations for the spread of Covid – 19 under International Law, The London School of Economics and Political Science, https://blogs.lse.ac.uk/ipa/2020/06/16/batting-for-the-other-team-defending-china-against-claims-for-reparations-for-the-spread-of-covid-19-under-international-law/

Also it could be considered on the basis of tort law under negligence, that is the act of china would amount to negligence. This paper has discussed on various aspects of international law on state responsibility, international obligations and many more, even torts which could be related to china and the pandemic. It is very hard to conclude on askew and not considering the antithesis, so en masse the paper tries to wrap with a note that the reparations to be claimed must be heeded from both sides and not only focusing on the ground of the country(china) also on the individuals.