International law online contribution
International treaties
A continual update of international treaties is vital as technology and States change and evolve.
To minimise tp possible of anowith the recent pandemic, resulting in over two and half million cases, over hundred-eighty thousand deaths and over a third of the global population in lockdown. An evaluation of the effectiveness of IHR needs to occur.
To minimise the possibility of another global pandemic an evaluation of the effectiveness of international health regulations needs to occur. If the procedures in the IHR are inadequate in preventing a global pandemic, then the IHR needs to be updated. However, if an investigation finds that a state is accountable for this pandemic due to negligence of not following the IHR obligations then the wrongful state must be prosecuted.
In 2005, 196 states entered into the International Health Regulations (IHR), implemented by the World health organization (WHO). The IHR objective was “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with the restricted public health risks, and which avoid unnecessary interference with the international traffic and trade”.
When states enter into an international treaty they are allowed to make reservations.
A reservation is the ability for a state to commit to the overall general ideology and contents of a treaty, while being able to opt out of specific sections. Article 62 of IHR states that reservations are allowed to be submitted to the Director-general. The members of WHO then have six months to submit objection.States are inable of making reservations that conflict with objectives and purpose of the IHR. China made no reservations to the IHR. China however, did submit a declaration, expressing their incoporation of IHR core fundendemtails into the Frontier Health and Quarantine Law of the People’s Republic of China. During China’s 11th five year plan for national economic and social development, they “established an inter-agency information-sharing and coordination mechanism for implementing the IHR”.
So if China had placed all these precautions in place, how did it take them until 31st of December 2019, to make the first report to WHO of an outbreak. When the first report of pneumonia causing the virus was on 17th november, 2019, by Wuhan authorities. This original report to WHO also left out the essential detail of human-to-human transmission. Despite Chinese Health authorities knowing that approximately one-third of the 266 cases had no connection to the Seafood Market.
In Article 38 of the Statute of the International Court of Justice, a general ‘ John finnis’ principle of international law includes; that a state can not be liable for unintentional injury, without fault. Applying this to the IHR and the COVID-19 outbreak, states seeking to prove a wrongful act would look towards article 6 of the IHR. Article 6 of the IHR requires states to provide expedited, timely, accurate and sufficiently detailed information to the WHO about potential public health emergencies. It must be proven to a sufficient degree by the Injured states that without China’s lack of compliance with this IHR obligation, the outbreak would not of occured.
A recent epidemiological study conducted by Dr Shengiie Lai at the University of Southampton demonstrates the potential adverse outcomes to the outbreak of COV-19. This study concluded that if China had adhered to article 6 obligations of IHR one, two or three weeks sooner the amount of cases would be 66, 86 and 95 percent lower, respectively. Drastically reducing the geographic spread and effect of COVID-19.
Alternatively if China had continually withdrawn essential information about the disease for another week, two weeks or three weeks, the overall number of cases would have increased by 3, 7 or 18-fold, respectively. Dr Shengiie Lai commented on the study; “Our study demonstrates how important it is for countries which are facing an imminent outbreak to proactively plan a coordinated response which swiftly tackles the spread of the disease on a number of fronts. We also show that China’s comprehensive response, in a relatively short period, greatly reduced the potential health impact of the outbreak.”
If it’s determined that China breached the obligations of the IHR. Then the state can seek remedies through article 30-39 of the Responsibility of States for Internationally Wrongful Act 2001. The international Court of Justice is also available for States to unilaterally submit a dispute. However, China’s permanent security council members have the ability to veto any potential judgment.
Examining other recent international arbitration cases against China, it could be reasonably assumed that China will most likely not participate. An example of China’s unwillingness to participate in international arbitration was in 2016 when the Philippines brought a case against China over the Laws of the Sea. they also declared they would not accept any court ruling.
Therefore, do not have high expectations for any actual reparations from China in international law. However, the legal process can keep the spotlight on the Chinese government’s role in the ongoing crisis.
References
https://www.who.int/ihr/legal_issues/states_parties/en/
https://apps.who.int/iris/bitstream/handle/10665/246107/9789241580496-eng.pdf;jsessionid=9AB9CDA3F7A119B63EFF97B326249BA1?sequence=1
Coronavirus: International law offers a way of holding China accountable
https://www.businessinsider.com.au/countries-on-lockdown-coronavirus-italy-2020-3?r=US&IR=T
https://www.worldometers.info/coronavirus/
https://www.southampton.ac.uk/news/2020/03/covid-19-china.page