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China and India today represent two largest and most dynamic societies which are emerging as new trend setters in international relations. From the global perspective, China and India today represent two unique new players presenting an extraordinary combination of a very large GDP and still with significant poverty and pockets of unrest and a very low per capita income and living standards. This unique combination raises several questions about their becoming major drivers in international economic trends. However, in the politico-strategic sphere, their recent economic success has resulted in both seeking an expanded space in regional as well as international decision-making, something that is becoming a matter for worldwide concern.

It is true that India’s reliance on China is spread across sectors. Indian pharma industry is dependent on Chinese imports to make medicines — the APIs (active pharma ingredients) come from China. The $30 billion domestic smartphone market, world’s second largest now, will see major disruptions as it is heavily dependent on imports. However, India’s production capabilities remain limited for many of these items. But to be seen this is an golden opportunity for India to come up with cornering China in Asia as it is believed that the first infection of the novel coronavirus was reported on December 31, 2019 but, according to some sources, there were cases as early as November 17, 2019. By the Chinese authorities’ own admission to the WHO, the first case was diagnosed on December 8, 2019. Despite this, China did not concede that there was a problem until January 7, 2020. Any way you look at it, this was a considerable delay in reporting the outbreak, which meant that little was done to stop it spreading and the world had less time to prepare and react to the new coronavirus. China has rejected the allegation that it concealed the extent of the outbreak.

Even so, it’s worth examining the issue of accountability. The International Health Regulations (IHR) of 2005 are a legally binding instrument of international law. While the current version of these regulations was agreed in 2005, Article 6(1) requires a state party to report to the WHO, within 24 hours, events that may constitute a “public health emergency of international concern”. Therefore, it could be argued that China violated international law by delaying its reporting to the WHO by more than a month or, perhaps, nearly two months. This prevented speedy recognition of a “public health emergency of international concern.” Surely China has a case to answer because it knew there was a SARS-like disease back in December 2019 and took far too long to act.

It could also be argued that, China is a party to the BWC. Article I of Biological Weapons Convention,1975 says that no state should undertake 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 may be a novel legal argument but it’s still possible to make the case that China’s reporting delay to the WHO amounts to “retention” of a microbial or other biological agent. The delay or non-reporting could arguably be a breach of the BWC’s provisions.

If so, state parties to the treaty could lodge a complaint with the UN Security Council. Alternatively, if a cover-up could be proved, a case could be brought against China in the International Court of Justice (ICJ) by India , who is itself a party to Biological Weapons Convention,1975 .

As one of the 194 states party to the legally binding 2005 International Health Regulations, China has a duty to rapidly gather information about and contribute to a common understanding of what may constitute a public health emergency with potential international implications. The legally binding International Health Regulations were adopted by the World Health Assembly in 1969, to control six infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever, and typhus. The 2005 revision added smallpox, poliomyelitis due to wild-type poliovirus, SARS, and cases of human influenza caused by a new subtype, set forth in the second annex.

Article 6 of the International Health Regulations requires states to provide expedited, timely, accurate, and sufficiently detailed information to WHO about the potential public health emergencies identified in the second annex in order to galvanize efforts to prevent pandemics. WHO also has a mandate in Article 10 to seek verification from states with respect to unofficial reports of pathogenic microorganisms. States are required to provide timely and transparent information as requested within 24 hours, and to participate in collaborative assessments of the risks presented. Yet China rejected repeated offers of epidemic investigation assistance from WHO in late January (and the U.S. Centers for Disease Control and Prevention in early February), without explanation.

Under Article 1 of the International Law Commission’s 2001 Responsibility of States for Internationally Wrongful Acts, states are responsible for their internationally wrongful acts. This commission’s restatement of the law of state responsibility was developed with the input of states to reflect a fundamental principle of international customary law, which binds all nations. “Wrongful acts” are those that are “attributable to the state” and that “constitute a breach of an international obligation” (Article 2). Conduct is attributable to the state when it is an act of state through the executive, legislative, or judicial functions of the central government (Article 4).

Wrongful acts are those that constitute a breach of an international obligation (Article 11). A breach is an act that is “not in conformity with what is required of it by that obligation.” China’s failure to expeditiously and transparently share information with WHO in accordance with the International Health Regulations constitutes an early and subsequently extended breach of its legal obligations (Article 14). Consequently, China bears legal responsibility for its internationally wrongful acts (Article 28).

Under Article 31 of the, states are required to make full reparations for the injury caused by their internationally wrongful acts. Injuries include damages, whether material or moral. Injured states are entitled to full reparation “in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition” (Article 34). Restitution in kind means that the injured state is entitled to be placed in the same position as existed before the wrongful acts were committed (Article 35). To the extent that restitution is not made, injured states are entitled to compensation (Article 36), and satisfaction, in terms of an apology and internal discipline and even criminal prosecution of officials in China who committed malfeasance (Article 37). Finally, injured states are entitled to guarantees of non-repetition, although the 2005 International Health Regulations were designed for this purpose after SARS (Article 48).

Clearly International legal obligations portray an image of so many violations done by the Chinese during this global pandemic. India being the closest and the most prone to the Chinese behavior from last many years should bring this issue internationally and levy sanctions over China. As India being biggest market for China being closed would lead to harsh but appropriate step for this situation.

Written By: Mr. Piyush Jain, 2nd Year Law Student, LLB, Lloyd Law College, Greater Noida

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