The emergence, subsequent inter-continental spread and the inevitability of the ensuring mounting death toll across almost every region of this planet has exposed the spectacular lack of preparedness of many Governments in facing the COVID-19 pandemic. Notably, up until the middle of January 2020, the novel Coronavirus was not even considered sophisticated enough for human to human transmission and yet by the end of February 2020 continental Europe had been ravaged. In the consequent incursion into and subjugation of the United States of America (USA), the novel coronavirus achieved that which no invading army ever could.
As a direct result of the same and almost without exception, the world, led by America, clamoured to fix culpability upon Communist China. However, it need not be reiterated that no pre-eminent global power in the post-WW2 decades has ever of its own accord ever submitted to the jurisdiction of international law. The western nations, short of bilateral or multilateral reprisals (the validity and legality of which under international law would be questionable at the very least), are therefore wholly bereft of an effective means of bringing the ‘guilty’ to book. Regardless, remedial inadequacy has not deterred those seeking reprisal against the People’s Republic of China (PRC), from filing suits and petitions against PRC’s communist leadership, its armed forces as well as the Institute of Virology situated at Wuhan. These however are nothing but, as the Solicitor General so deftly put it in another context, ‘self-employment generating petitions’.
Succinctly stated, the concept of ‘State responsibility’ vis-à-vis international law arises primarily under three scenarios; (1) breach of obligations arising out of treaties and/or contracts, and (2) international delinquencies. There’s a third area of study i.e. international criminal law, however, that pertains to individual criminal liability and has been discussed separately below. It must also be borne out that though the conceptualisation of ‘sovereignty’ has undergone a transformation in the post-WW2 period of the 20th century, yet devoid of any supranational agency, ‘State responsibility’ in consonance with international law must be tempered by the sovereign autonomy of a nation State.
Insofar as the COVID-19 pandemic is concerned, there evidently does not exist any treaty obligation governing the manner of transaction between the world and the PRC. Thus the discussion surrounding ‘State responsibility’ must revolve around the idea of international delinquency whereby culpability can be attributed to a State in connection with its non-contractual international law obligations. Quite interestingly, in most cases of such nature, responsibility arises as a result of injury suffered by the citizens abroad i.e. aliens in the host nation. However, a key constituent of ‘international delinquency’ is ‘imputability’. Consonantly, if a certain State-action resulting in injury to an alien cannot be directly attributed to an agency of the host State (for instance China in the current scenario) then the same may not amount to fixation of responsibility unto the said host. Naturally thus, no act of a private citizen resulting in injurious consequences for an alien can be termed an ‘international delinquency’.
If one is to consider the present scenario wherein claims against the PRC are sought to be brought forth, no case of international delinquency is made out short of the international community being able to conclusively prove that the Communist Party of China in cohorts with its armed forces and/or other agencies of the State sought to inflict the alleged harm and injury to the global population. It is further imperative to take note of the fact that ‘force majeure/fortuitous event’ presents itself as a complete defence to any such action of State responsibility.
In addition to the above enunciation of State responsibility, it is notably that the clamour to fix criminal liability under international law vis-à-vis the top leadership of the Communist Party of China, makes it crucial that the phrase ‘crimes against humanity’ is understood in terms of its specific legality vide the Rome Statute for International Criminal Court[1]. The Rome Statute under Article 7 explicitly defines ‘crimes against humanity’ as being in the nature of murder, extermination, enslavement, deportation, torture, rape, etc. coupled with an element of systemic attack against any civilian population[2].
Additionally, although the International Criminal Court (ICC) has the jurisdiction to try everyone equally regardless of any official position held thereof, such jurisdiction can only arise by way of (1) the accused person being a national/citizen of a State party to the Rome Statute, (2) the alleged crime of most serious concern to the international community having been committed on the territory of a State party to the ICC, and (3) referral of a matter from the United Nations Security Council (UNSC).
In that regard, fastening of criminal liability unto any Chinese State official is bleak to say the least for not only is PRC a veto-wielding member of the UNSC, it not a State party to the Rome Statute and thus does not recognise the jurisdiction of the ICC. Furthermore, as would become manifest from the definition above, there exists no intelligible and coherent evidence as to satisfy the threshold of international criminal law.
In conclusion, it becomes important to analyse the complaint forwarded before the United National Human Rights Council, Geneva (UNHRC) by the International Council of Jurists. Regardless of the allegations made thereby, it must be understood that though the UNHRC has a very wide ambit and scope to entertains such complaints, it has one of the weakest mechanisms under international law to provide any remedy. No recommendation of the UNHRC has any binding force upon the member States. At the most, a mere cognizance of the matter can be taken by the Human Rights Council and recommendations forwarded thereof to the governing executive of the d State concerned.
An inward looking world as at present will surely find a way to penalise the commissions and omissions of the PRC in due time. Rest assured it will not be by means of the numerous yet woefully inadequate international law remedial instruments at the disposal of the international res publica.
*The Author is a practising Advocate in Delhi
[1] The Rome Statute of the International Criminal Court was adopted on 17th July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and it came into force on 1st July 2002 upon being ratified by at least 60 signatory nations.
[2] ‘Crimes against Humanity’; Article 7 of Rome Statute
