The People's Republic of China (PRC) is a nation of some 1.4 billion people. Governed by a communist regime, it has enormous economic and military strength and is a permanent member of the United Nations Security Council. As noted by Chatham House (October 2019) the People’s Republic of China represents, for the UK, a mutually beneficial source of economic and trade potential in a post-Brexit world. London and Beijing already have a well-established relationship in areas such as finance, telecommunications and higher education. In January 2020, the British government controversially awarded Huawei a limited stake in the UK's 5G development but, in the light of coronavirus, the government has drawn up plans to reduce the Chinese company’s involvement to zero by 2023 - The Guardian 22 May.
Coronavirus - uncertainty regarding its origin:
In late 2019, coronavirus
[or severe acute respiratory syndrome coronavirus 2 - SARS-CoV-2] emerged in the Hubei province of central China. The city of Wuhan, with a population of around 11 million, quickly came into focus.
Precise details of how the virus came into being do not appear to have been definitively established even though such knowledge appears to be crucial if future pandemics are to be avodied. A number of theories have been put forward including -
- the virus originated in either bats or animals and crossed species to humans - Journal of Infection 3 March 2020
- it is the outcome of Chinese research and might have "escaped" accidentally from a laboratory at the Institute of Virology in Wuhan.
On 30 April, the USA Director of National Intelligence issued a statement indicating the US intelligence community "will continue to rigorously examine emerging information and intelligence to determine whether the outbreak began through contact with infected animals or if it was the result of an accident at a laboratory in Wuhan.”
On 3 May 2020 news emerged of a "leaked" research dossier produced by the 5 Eyes Intelligence Network - Fox News 3 May 2020. The 15-page document from the intelligence agencies of the U.S., Canada, the U.K., Australia and New Zealand, was obtained by Australia's Saturday Telegraph newspaper and finds that China's secrecy amounted to an “assault on international transparency."
It is a trite observation that the spread of coronavirus has caused the deaths of almost 500,000 worldwide and that immense economic damage has resulted to most nations. At the time of writing (5 May) the UK has suffered in excess of 28,000 deaths. In the USA there have been almost 69,000 deaths.
China, Taiwan and WHO:
Taiwan lies approximately 110 miles to the east of the Chinese mainland. The position of Taiwan in international law is a matter of dispute but the Chinese government claims that Taiwan is part of China. This has led to problems between Taiwan and the World Health Organization such as the WHO not inviting Taiwan to the organization’s emergency meetings in January despite Taiwanese early recognition of the problems posed by coronavirus. Taiwan raised concerns relating to human-to-human transmission in December 2019 but the WHO went along with China's denial of this until 21 January.
Impact on relations with China:
Dominic Raab (Secretary of State for Foreign and Commonwealth Affairs) indicated that the UK and China "can’t have business as usual" once the coronavirus crisis has passed - BBC News 16 April. Mr Raab also commented that "there absolutely needs to be a very, very deep dive - after the event - review of the lessons" and that international partners, including cooperating countries and the World Health Organization, will need to investigate how the virus "came about". However, Mr Raab was also reported as saying that the coronavirus outbreak would not be “politicised” - The Times 14 April. The views of Mr Raab will be influential within government but it cannot be said with any certainty what the exact relationship with China will become.
It is also unclear how the type of international investigation referred to by Mr Raab will come about even though an objective investigation is a crucial need if further pandemics are to be avoided.
The World Health Organization (WHO):
The WHO is an agency of the United Nations and its constitutional documents are available on the WHO website. The body has reponsibility for making International Health Regulations (IHR). The Regulations are an international legal instrument and provide a unique global framework to protect people from health emergencies of any type. The 196 States Parties to WHO commit to reporting public health emergencies of international concern (PHEIC) and to strengthening national preparedness and response systems.
WHO has come under criticism for its handling of coronavirus (e.g. The Week 16 April) and the organisation has defended its response. A principal critic has been the President of the USA and American funding of WHO has been suspended.
Steps taken by the WHO are set out at World Health Organization - Timeline 27 April 2020 and include:
23 January - first WHO Emergency Committee statement
28 January 2020 - a senior WHO delegation led by the Director-General travelled to Beijing to meet China’s leadership, to learn more about China’s response and to offer any technical assistance.
30 January 2020 - second WHO Emergency Committee statement - The Committee agreed that the outbreak met the criteria for a Public Health Emergency of International Concern (PHEIC) and issued advice to both China and other nations.
30 April 2020 - third WHO Emergency Committee statement
On 10 April, The Guardian published an article The WHO v coronavirus: why it can't handle the pandemic which is an in-depth look at the problems faced by the WHO which, for all the responsibility vested in the WHO, it has little power. It has no ability to bind or sanction its members.
Action in the UK:
10 February - in the UK the Secretary of State for Health made the first regulations related to coronavirus - The Health Protection (Coronavirus) Regulations 2020 (S.I. 2020/129). Those Regulations were later revoked and replaced by the Coronavirus Act 2020 - see previous post. The 10 February Regulations were made under powers in the Public Health (Control of Disease) Act 1984 and it is important to note that in accordance with section 45R of the 1984 Act the Secretary of State has to be of the opinion that, by reason of urgency, it is necessary to make the Regulations without a draft having been laid before, and approved by a resolution of, each House of Parliament.
The 10 February Regulations are an early indication of the fact that coronavirus was viewed within government as a serious threat. Against this is the fact that further Regulations were not made until 26 March - a gap of over 6 weeks. Governmental decisions and action in that 6 week period may yet be the subject of detailed examination if some form of inquiry is held. The response of the government has resulted in criticism from many other countries - The Guardian 7 May 2020.
A report of 17 March by Imperial college London appears to have been crucial in pushing the UK government toward more restrictive action to contain and combat the virus - Imperial researchers model likely impact of public health measures and see their COVID-19 Reports. The Imperial College report is discussed at Foreign Policy 17 March, Financial Times 19 March, The Telegraph 17 March, The Guardian 16 March.
23 March - Prime Minister's Address to the Nation - announcing forthcoming legal restrictions - "From this evening I must give the British people a very simple instruction - you must stay at home ..."
26 March - UK government made The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
22 April - the UK government amended by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020
Whether there will be a formal Inquiry into the UK government's handling of the pandemic remains to be seen and was discussed on this blog in a post of 15 April. As that post indicates, litigation against the British government is a distinct possibility in, for example, cases where there is evidence that a death was contributed to by lack of protective equipment.
In some quarters, attention has turned to whether China can be required to pay compensation.
Compensation claims relating to China:
It is unsurprising that there are moves in the USA to bring law suits claiming compensation from China - BBC News 22 April reporting on such a claim by the State of Missouri.
In the UK, the Henry Jackson Society has published a paper - Coronavirus compensation? Assessing China's potential culpability and avenues of legal response - claiming that global lawsuits against China for “patent breaches” of the International Health Regulations could run to at least £3.2 trillion from just the nations of the G7.
It is reported that the "London-based International Council of Jurists and All India Bar Association have filed a complaint against China in the United Nations Human Rights Council (UNHRC) for committing grave offences against humanity by unleashing COVID-19 on the world."
Prospects:
The prospects for securing compensation from China are remote. As this post has tried to show, whilst there are numerous allegations against China, there are considerable factual difficulties to be overcome even if there is a jurisdictional basis for legal action.
The State Immunity Act 1978 applies within the UK. Section 1 states - "General immunity from jurisdiction -
(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.
The principal exception for present purposes is section 2 - Submission to jurisdiction - (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
Frankly, it is inconceivable that China would submit to jurisidiction for this type of case.
The question of State Immunity was the subject of a speech by Lord Lloyd-Jones - see UK Supreme Court 18 October 2018 (pdf 25 pages). See also the discussion at Ashurst
Thoughts therefore turn to whether compensation might be claimable through international forums.
An article of 2 April 2020 published by EJIL:Talk! states that - "Scholars have claimed that China’s conduct with respect to COVID-19 (and the novel coronavirus SARS-CoV-2) violated the International Health Regulations, in particular the obligations of timely notification and information-sharing in Articles 6 and 7 (see, for example, here and here).
Article 6 requires States to assess events occurring within its territory and to notify WHO, by the most efficient means of communication available, within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory as well as any health measure implemented in response to those events.
Following a notification, a State Party shall continue to communicate to WHO timely, accurate and sufficiently detailed public health information available to it on the notified event, where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the potential public health emergency of international concern.
Article 7 Information-sharing during unexpected or unusual public health events - If a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information. In such a case, the provisions of Article 6 shall apply in full.
The EJIL: Talk! article discusses whether there is a possible jurisdictional bases for action at the ICJ but but does not come to any definite conclusion. It is also pointed out that, assuming that they have some merit, one would still need "to identify a State willing to sue China before the International Court of Justice, which, of course, is not an easy task."
Endpiece:
The precise genesis of coronavirus remains a matter of dispute. Serious allegations have been made against China particularly regarding suppression of information and such allegations are rejected by China.
Without objective investigation and clear answers, mankind is unlikely to have a real hope of avoiding similar future events. It is to be hoped that some way will be found to achieve such an investigation but this is likely to be difficult to achieve. China has already said that it rejects calls for a probe into the origins of the disease - BBC News 24 April.
Meanwhile, individual countries try to combat the virus with varying degrees of success. What emerges is that very early and robust action is crucial if spread is to be prevented. Testing and tracing of contacts is vital.
Even with 3.7 million cases worldwide and deaths at almost 260,000, one wonders whether the international and national lessons will be truly learned so that future pandemics might be handled differently and hopefully better.
Doubtless this tragedy will continue for some time to come ................!
6 May 2020.
Additional links:
World Health Organization - Coronavirus disease pandemic
The Telegraph 9 June 2020 - Satellite images of packed Wuhan hospitals suggest coornavirus outbreak began earlier than thought
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