In 1931, Samuel Beckett in his scholastic work ‘Proust’ wrote that ‘There is no escape from yesterday because yesterday has deformed us, or been deformed by us . . . [W]e are rather in the position of Tantalus, with this difference, that we allow ourselves to be tantalized.
These words appear quite relevant in the present context of global outbreak as the damage has already been done and now we have to mitigate and eliminate this outbreak through international cooperation and national actions.
We, humans, are responsible for what we perceive as for what we have been doing and what we intend to do. We have made everything possible, with our potential; we have created, we have destroyed and we have recreated. In the scheme of this entire process of human evolution, we have encountered several upheavals.
However, in the making and evolution of this so-called ‘human world’, law has played a key role as an intermediary between our ideas and our capabilities. The contentious debate over the genesis of COVID-19 has posed several notions surrounding state responsibility over transboundary damage. The news and documentaries are doing several rounds over this debate, which has inspired several researchers like me to build our understanding of COVID-19.
That being said, irrespective of its origin, one crucial question still remains- How far the perspectives of International Law address the issue of transboundary harm? In the given context, a couple of international legal instruments are relevant:
The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001
In 2001, during the 53rd session of the International Law Commission, The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities was adopted. The given Draft articles are applicable to those activities which are not prohibited by international law that involves a risk of causing significant transboundary harm through physical consequences (Article 1).
The prime aim of this Draft Articles of 2001 was to ‘deal with the concept of prevention in the context of authorization and regulation of hazardous activities which pose a significant risk of transboundary harm (para 1 of General commentary)’.
The notion of prevention in the preambular part of the 2001 Draft Articles is based on an understanding of ‘prevention’ as a duty oriented and procedural approach to deal with the probable damage in the initial phase itself, where the actual damage is yet to happen. However, in the present situation, we are way ahead of that phase but the element of liability continues.
Prevention of any transboundary harm and its adverse impact on the human health, property and ecosystem vitality at large has been accepted and even addressed via several multilateral treaties on several transboundary issues such as the movement of hazardous wastes, nuclear accidents, space objects etc.
The Draft Articles also perceives ‘ultrahazardous activity’ as an activity with a danger that is rarely expected to materialize but might assume, on that rare occasion, grave (more than significant, serious or substantial) proportions (Article 1.2). Albeit, no list of activities were enunciated back then with a reason to believe that any such list of activities would become obsolete due to the rapid development of science and technology.
The COVID-19 and its magnitude fit within the scheme of ultrahazardous transboundary harm. If the Wet Markets and illegal trade of Wildlife can be proved to responsible for this outbreak like its predecessor SARS-CoV of 2003, then the hazardous wet animals and wildlife farming industry can be held accountable for transboundary harm.
The criterion of ‘activities which are not prohibited by international law’ was adopted with an objective to distinguish the notion of international liability from the notion of state responsibility. The adoption of the said criterion was done with an intention to allow any state which is likely to be affected by an activity which is responsible for transboundary harm to demand from the state of origin, (in this case, presumably The People Republic of China) compliance with the obligation of prevention, even if the activity itself is not prohibited.
At the same time, any the non-fulfilment of the duty to prevent for minimization of risk would not give rise to the implication that the same activity itself is prohibited. In such situation, the element of State Responsibility will be invoked to ensure the implementation of obligations and civil responsibility. The principle of international cooperation and good neighbourliness is also a guiding factor behind this international legal instrument.
Coming to another criterion of ‘state of origin’, the same is based on the concepts of ‘control’, ‘territory’ and ‘jurisdiction’. The concept of ‘territory’ was inducted as a dominant criterion with an intention to emphasize upon the territorial link of the origin of the ultrahazardous activity.
The concept of ‘jurisdiction’ as included to cover activities that have been undertaken by the state of origin within its territory and activities that are covered under international law, where it is authorized to exercise its authority and competence and the concept of ‘control’ was enshrined to attach certain legal consequences to a state whose jurisdiction has not been recognized by the international law (both de facto & de jure jurisdiction).
Another criterion is to establish the connecting link of significant transboundary harm and the same being caused by ‘physical consequences’. Hence, this criterion is crucial in the present global context because a causal relationship (physical link) must be there with the activity that has caused the transboundary effects.
Presumably, if China is the state of origin then instead of concealing the same from the entire world and suppressing its own citizens from revealing the outbreak information, it should have conducted a timely assessment and if it is presumed that China has done the latter then as per Article 8 of the Draft Articles, it should have provided the states likely to be affected, a timely notification of the risk associated with the virus and also transmitted all available technical and other relevant information related to COVID-19.
Here China failed to ensure international cooperation and act in good faith which has now affected due to this pandemic. In fact, the 2001 Draft Articles mandates the state of origin to develop an emergency preparedness (Article 16) by adopting a contingency plan in cooperation with all other affected states and international organizations like WHO.
The state of origin (presumably China) bears a primary responsibility for developing this contingency plan that would involve the adoption of safety standards, maintenance of equipment and facilities, training of workers and building an early warning system. Instead, the initial trend shows a lack of such measure. In fact, China is now being widely criticized for even overcharging for PPEs and other medical necessities, which was once donated by Italy. This action is not a reflection of good faith and international cooperation. China can be held liable for the violation of the international principle of good faith as enshrined under the Vienna Convention on the Law of Treaties (Article 31)
Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities with commentaries, 2006
Another significant international legal instrument, which is relevant in the given context is the Draft principles of 2006 which deals with the allocation of loss in the situation of transboundary damage due to any hazardous activity.
The said Draft Principles were adopted with an objective to provide guidance and necessary arrangements for compensation for any hazardous activity. It encourages the states to even adopt bilateral and multilateral arrangements to develop such an arrangement of compensation. As per the preamble of the said Draft Principles (para 6), the states are responsible under international law for infringement of their prevention obligations.
Principle 2 (f) defines ‘victim’ as not only any natural/legal persons but also the State that suffers damage. In order to determine the damage which is eligible for compensation, the International Court of Justice has already determined a threshold in the cases of Trail Smelter and Lake Lanoux.
The Possible Judicial Remedies
To bring the matter to the International Court of Justice (ICJ), the WHO constitution has provided a clause under Article 75. However, it order to invoke the same, there is a prerequisite that “if any question or dispute concerning the interpretation or application of the WHO Constitution which is not settled by negotiation (a pacific mode of settlement of dispute under international law) or by Health Assembly shall be referred to the ICJ unless the parties concerned agree on another mode of settlement.
In addition, Article 56 of the IHR provides a clause for arbitration in an event of dispute. Albeit, Article 75 of the WHO Constitution mandates negotiation as a prerequisite before approaching ICJ but in the recent case of India v. Pakistan (June 2019), it was held by ICJ that recourse to the pacific mode of settlement like arbitration is not a prerequisite to approach ICJ but the challenge will be for the other states concerned to invoke Article 36 para 2 of ICJ.
The states shall also submit to ICJ, the disputes relating to international law on the basis of non ultra petita doctrine (not beyond the pleadings), which means that the ICJ should not unnecessarily decide questions of law which is more than it has been asked to.
If this option doesn’t pass muster, then the ICJ may be approached for an advisory opinion by invoking Article 76 of WHO Constitution, which enunciates that ‘on the authorization of United Nations General Assembly or upon authorization in accordance with any agreement between the organization and the UN, the organization may request the ICJ for an advisory opinion on any legal questions arising within the competence of the Organization’.
There are several instances of ICJ’s advisory opinion, for example, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996. In addition to the Draft Principles of 2006, which deals with compensation to victims, a precedent of ICJ’s advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory from 2004 is a relevant where victims were compensated for the losses.
Another positive angle of the advisory opinion is that the states are not required to give consent for approaching ICJ and any concerned state can render evidence that can prove that China failed to comply with the aforementioned international legal instruments.
Even though the Advisory Opinions of ICJ are not binding in nature but the same is relevant because it carries moral authority, legal weight and the same is also significant for the development of international law and acts as guidance for state actions in the future.
Nevertheless, all the hullaballoos and contentious debates surrounding the origin of COVID-19 are yet to be clear beyond any reasonable doubts. One should also not discard that China is a permanent member of the UN Security Council and enjoys the Veto power.
Even if several affected states decide to approach ICJ, it will be even more difficult to prove that China is the exact country of origin. Given, several counterclaims made by China itself, it will be another tough nut to crack. Nonetheless, the Advisory Opinion of ICJ appears to be a viable option from this juncture.
However, time and events in the near future will tell us, how and where the projectile of this outbreak will take us. Until then, we have to keep our hopes intact and pay utmost respect to the principle of international cooperation and good faith.
Chiradeep Basak is an Assistant Professor of Law at the National Law University and Judicial Academy- India