1st Article Writing Competition on Legal

Aspects of Corona virus Pandemic by NLU

Odisha

Article Topic -
How China owes reparations to India under International Law: the
aftermath of whammy?

Author-
Shivangi Paliwal

II semester, B.A. LL.B. (Hons.)

National Law University, Jodhpur.

Contact Information: 9098312799

Email Id: paliwalshivangi006@gmail.com

Covid 19, the illness caused due to the Zoo-notic novel Corona virus, the root
cause of impending deaths and misery looming over the mankind, the reason
d’être of bleeding economies , shortages of supply. This sinful virus knows no
border, it has transgressed territories. The planet is bruised and battered by this
lethal blow. The emergence of new world order is a possible reality. Half of the
Globe is under lockdown. The Dawning of the evil occurred in the Wuhan’s
Huanan seafood wholesale market 1
which accommodates deadly wild and
exotic animals, also referred to as “wet market” around November 2019.

China’s Blatant lies, Blocking of information and suppression

of truth:

The republic of china affirmed its position and made fallacious statement
stating there is no threat of any influenza like virus before the onset of Lunar
New Year Celebration on 25 January 2020, this festival was celebrated by
Chinese with fervour and no restrictions, later these people were proliferated
into the world serving as human careers.

Li Wenliang, an ophthalmologist at Wuhan Central Hospital tried to forewarn

by revealing the inception and rise of a Severe Acute Respiratory Syndrome
(SARS) like virus on December 30th, that night, Wuhan public health
authorities solicited information on the emergence of a “pneumonia of unclear
cause,” but omitted Li’s discussion about SARS or a novel corona virus. 2He
and others who tried to be whistleblower met the same fate; they were
squashed, arrested or cowed down by authorities. The Xinhua news Agency on

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January 1 issued a caveat “The police call on all netizens to not fabricate
rumors, not spread rumors, and not believe rumors.” 3
Dr. Li was made
signatory to a letter by public security bureau in which he was accused of
"making false comments" that had "severely disturbed the social order" 4 , he
later succumbed to the virus.

On Dec. 31, the Wuhan Municipal Health Commission falsely stated that there
was no human-to-human transmission of the disease, which it described as a
seasonal flu that was “preventable and controllable.”5 New York Times
reported that preliminary conduct by China actually “allowed the virus to gain a
tenacious hold”6

Moreover china concealed the facts, didn’t share the developments to the World
Health organization( hereinafter referred as WHO) and Up until February 14
the information that 1700 healthcare workers are infected 7 was unknown to the
world, and genome or virus strain was not also shared to international scientific
community Statistics like these are necessary to ascertain the transmission
patterns. China’s ambiguity, late response made us defenseless against the
disease and is also violative of international customary laws, these actions are
not just moral wrong but legal wrong too.

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How china can be legally held accountable, responsible and be
made to pay Reparations under International law?

International Health Regulations

China’s Management breached the International Health Regulations, 2005

(hereinafter referred as IHR) to which china is a signatory party, it violated
explicitly Article 6 which states “state shall notify to WHO within 24 Hours of
Public Health Assessment”8 and Article 7 that talks about “information sharing
during unusual events” 9

A report by Henry Jackson society holds that Chinese communist party Failed
to disclose data that would have revealed evidence of human-to-human
transmission for a period of up to three weeks from being aware of it, Provided
the WHO with erroneous information about the number of infections between 2
January 2020 and 11 January 202010 , thus china broke its obligations as to the
aforementioned articles.

China’s responsibility and obligations under International law

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. 11 Article 2 says an internationally wrongful act is
an action, inaction or omission which “Is attributable to the State under
international law and Constitutes a breach of an international obligation of the
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State.”12 The Inaction to act and took measures by the Wuhan local authorities
and later by the Government is directly attributable to the state and knowledge
but omission to control the spread and inform the world about it violates its
obligations as per IHRs.

The use of customary international practices suggests that a harm caused must
not break the chain of causality and further, the “But for test” is applied to
make a state liable for its wrongful act. The test is the harm, injury is the direct
result of the inaction and had it not been for this cause the act could not have
occurred. This scale cataclysm has occurred due to the negligence, gross
violation of power and the clandestine activities of Chinese regime.

A study by University of Southampton suggests that had china took measures

quick enough the number of cases would have been 95 per cent lower.13

Now china should be ready to face “legal consequences” as per article 28.14 The
article 31 15of the said act authorizes other nations to ask for reparations for the
injury occurred to them by the wrongful act. Article 34 Suggests that injured
states are entitled to full reparation “in the form of restitution in kind,
compensation, satisfaction and assurances and guarantees of non-repetition” 16.
Article 49 permits states to take countermeasures. 17

The legalized repercussions of an internationally wrongful act are conditional to

the charter of the United Nation. Chapter XIV of UN Charter 18, acknowledges

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the right of countries which are harmed to move to International Court of
Justice to seek relief.

China’s functioning serves as a menace to world peace and security and is in

contravention of Article 12 of International covenant on economic, social and
cultural rights 19
and chapter VII of the UN charter that empowers the United
Nation Security Council (UNSC) to take steps to “maintain or restore
International peace and security”

Impact on India of nationwide lockdown imposed to contain

Covid – 19

Indian government has imposed a rigorous nationwide lockdown in response to

corona virus, latching factories, manufacturing sectors, curbing the
transportation either by air, land or sea. Indian economy is prominently staring
at its terrible chapter since the liberalization era; India's economy is going to be
stagnant with Zero per cent GDP growth in 2020-21 fiscal 20, before the Corona
calamity it was forecasted to grow at 5 per cent. An estimate by Acuite Ratings
& Research Ltd. Shows India may suffer a “loss of $4.64 billion everyday”21,

With close to two month long countrywide lockdown along with the shocking
GDP forecasts, direct loss to the Indian Economy will be about $400 billion for
this Fiscal year only.*

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Unemployment is on the surge in India, 121.5 million workers are jobless 22,
quarantined by their destiny, and every fourth worker in India is shackled down
in destitute. The number of people facing acute food insecurity could nearly
double this year to 265 million due to the economic fallout of COVID-19 23 , as
per United Nations’ World Food Programme (WFP). India already was in
serious state with Global hunger score of 2019 at 30.324and with the recent stats
it is on the brink of a further startling and horrid Hunger pandemic.

With migrant workers left stranded, small - miniscule and medium enterprises
tramped down, tourism and hospitality sector losing ₹ 5 trillion along with 5mn
jobs25 a decline in aviation, automobile and real estate sector, all hell breaks
loose for India.

There exists a moral debt on Beijing too as Indian populi today are suffering
from a double whammy due to the disease and wreckage of its economy.

Legal Avenues that can be sought by India

India can seek claim under international law either through the International
court of justice or World Trade Organization dispute resolution mechanisms.
As according to article 25 (1) of Universal declaration of human Rights
everyone has a right to standard of living for adequate health and well being.
India can make china liable to pay the reparations as per article 34, 35, 36 and
37 of Responsibility of States for Internationally Wrongful Acts, 2001.

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It is non cons tat that china acted with malafide intentions but it is conclusive
the catastrophe world is facing is the result of its misfeasance. The regime
opened the Pandora’s Box unleashing the troubles on humankind and should be
held accountable of a wrongdoing. A satisfactory apology and compensation in
monetary value to international community and India could be a way to
condone china of the harm and misery it caused.