In recent months, all attention has been focused on China: the Covid-19 pandemic has caused several problems in the country from an economic and social point of view, as well as from many other perspectives. In fact, the United States accuses Beijing of being solely responsible for the spread of the virus: the critical issues of an international nature are to be found in the military, civil and political aspects relevant to the origin of Covid-19, and about the possible responsibility of China for the violation of international procedural obligations.
It is reasonable to ask whether legally China and the World Health Organization (WHO) have made mistakes in the management of the emergency under international law. The initial management of the "Wuhan virus", as Donald Trump called it, has been the subject of debate for months now, and it seems that the President of the United States wants to demand compensation from China by blaming it for the pandemic. The action seems to be promoted also by private subjects, by trade associations as well as class actions, including Italian ones, and sees non-profit organisations requesting serious relief, proportionate to the nature of the damage suffered and its extent.
Where did the virus come from?
There is currently no concrete evidence of how the virus has begun to spread, but there are certainly many questions, one of which is where Covid-19 originated. The experts of Wuhan's laboratory have long been considered the protagonists of the story; in fact, the facility is classified as P4, and is designed to carry out analysis and research activities with highly infected materials, or to carry out experiments with microbiological materials that present a high risk both for internal workers and for the community. The laboratory was built with the collaboration of France and some of the staff trained at the P4 Jean Mérieux facility in Lyon, and was inaugurated in February 2017 by French Prime Minister Bernard Cazaneuve. The involvement of scientists in the spread of the virus is only a supposition, however, as is a second theory, endorsed by several studies and strongly supported by China, which sees as the origin of the virus the Wuhan Market. It remains clear that the delicacy of the issue makes it necessary the intervention of an International Commission of Inquiry composed of independent experts, which could work with the support of the UN Security Council, or with the help of the Human Rights Council, aimed at identifying the natural or military origin of the virus.
An important information that was not promptly provided
Even considering the origin of Covid-19 as merely natural, it is clear that China could have reacted differently to the disconcerting spread of the virus by communicating sooner the conditions of its country to the WHO, an organisation created precisely to deal with situations like this. This was a violation of an international procedural obligation to notify the WHO, which is not related to the investigation into the origin of the virus that was mentioned earlier. In fact, the WHO's International Health Regulations of 2005 (art. 6 ff.) reads as follows:
Art. 6: Notification of the General Directorate of Health Prevention - CCM PART II - Health information and response: "Notification to the WHO, within 24 hours of the assessment, with the most efficient means of communication available, through the National Centre for CSR, of events that may constitute within its territory a public health emergency of international importance, in accordance with the Decisional Instrument, as well as any health measure adopted. Continued communication to the WHO of the available public health information on the event, notifying in a sufficiently precise and detailed manner the conditions affecting the spread of the disease and the health measures taken. Communication, if requested, of the difficulties encountered and the support needed to respond to the potential public health emergency of international concern".
Art. 7: Sharing of information during unusual and unexpected public health events: "If a State Party has evidence confirming an unusual and unexpected public health event within its territory, regardless of origin or source, that could constitute a public health emergency of international concern, it shall provide WHO with all information relating to public health. In such a case, the provisions of Article 6 shall apply in full".
The emergency that broke out in Wuhan has taken on a rather serious international dimension, and it is clear that the procedures have not been followed in accordance with the International Health Regulations. The delay in notifying the WHO is about two weeks, which has been particularly significant in the increased spread of the virus, and it is therefore ponderable to attribute procedural responsibility to China for failing to notify the WHO.
Where to appeal and who is liable under international law
In order to answer this question, it is necessary to specify that there is no natural judge in the international legal order, pre-established by law. If it is necessary for a third party to be called upon to settle the dispute under an ad hoc jurisdiction, the International Court of Justice in The Hague (ICJ) does not appear to have an appropriate jurisdiction, since in no agreement, unilateral declaration of acceptance or arbitration clause, does China appear to have expressed consent to submit to its judgement. The ICJ is therefore not the competent court. The scenario does not change if the point of view is a national one, since international law has as its rule the exemption of the jurisdiction of a foreign state before national courts.
The claims brought by the class actions and the actions for damages brought by the Attorney General of Missouri have in common the non-contractual liability of China, which can be seen in the damage caused to the health and economic well-being of thousands of people around the world. The causal link between China's conduct and the damaging events is, however, rather difficult to prove, since the responsibility is rooted in the principle of neminem laedere: that is, it presupposes that the injured party succeeds in proving all the constitutive elements of the illegal act, which is concretely a probatio diabolica.
With regard to the subjects responsible, it must be understood whether China, its bodies and officials, can be considered as such under international law. Certainly, the country enjoys an immunity of domestic jurisdiction: it cannot therefore be sued before an international judicial body unless it expressly agrees to submit to its judgement. Someone has also requested the intervention of the International Criminal Court (ICC), but beyond ratione materiae, since China has not acceded to the ICC Statute, it is clear that it cannot be sued in this case as well.
Is compensation possible?
This is a scenario that would occur if a court had jurisdiction to rule on the substance of the case; but international law rules out the possibility that States could suffer the forced removal of their property, thereby guaranteeing de facto immunity. China would therefore be excluded from coercive measures and exempt from cognitive and enforceable prosecution, since we are faced with acts of iure imperii, i.e. sovereign and non-commercial or private prerogatives, which would be suitable for enforcement.
It seems, therefore, that China can only be accused and punished by a unilateral economic penalty of a commercial nature. A more concrete solution, proposed by Australia, could be the creation of an international commission of enquiry to ascertain the facts on the ground, but this suggestion seems destined not to happen because of the necessary consent of China to host a fact-finding commission, i.e. a team of independent experts, on its territory. Beijing has already stigmatised the Canberra initiative as "based on the presumption of guilt".