05 Jul Is China Responsible for Health Crises Beyond Its Borders?
[Psymhe Wadud is Lecturer in Law, Bangladesh University of Professionals (BUP). She specializes in International and Comparative Law.]
There have been informed claims that China’s internal suppression of information and bureaucratic as well as governmental policies exacerbated the novel coronavirus crisis and contributed to its transmission beyond Chinese borders, resulting in transboundary harm. There have been scholarly observations on the violation of the World Health Organization (WHO) Constitution and the International Health Regulations by China resulting in its legal responsibility over the transboundary transmission of the COVID-19 pandemic (see here, here and here). Amid all these, an extraterritorial human rights obligation of China has remained somehow overlooked. The intra-territorial responses made by China to the coronavirus crisis specifically, and its (mis)handling of the sale and trade of live wildlife in general, failed to contain the transmission of a deadly virus across the world and, for the reasons set out below, are grossly incompatible with the country’s human rights obligations that are extraterritorial in nature.
A brief outline of China’s extraterritorial health obligations
States parties to the International Covenant on Civil and Political Rights (ICCPR) have obligations to eliminate epidemics and to take appropriate measures to address life-threatening diseases, as facets of the obligation with regard to right to life. These obligations, as per the jurisprudence of the ICCPR, are owed by all States parties to all persons over whose enjoyment of the right to life they exercise power or effective control, including persons located outside their effectively controlled territory(ies), whose right to life is nonetheless impacted by their activities in a direct and reasonably foreseeable manner (see, here). While the ICCPR obligations cannot be called legally binding for China (since the country is yet to ratify the Covenant), as a signatory, China is obliged to refrain from acts that would defeat the object and purpose of the ICCPR (see, Article 18, Vienna Convention on the Law of Treaties, 1969).
With regard to the right to health in particular, in light of the jurisprudence developed by the International Covenant on Economic Social and Cultural Rights (ICESCR), as a state party, China has a collective responsibility for the international community to address the problem of diseases that are easily transmissible beyond borders and as a developed state, has a special responsibility to assist poor states (See, para 40 of General comment 14 by CESCR). There is an ICESCR obligation on China to make individual and joint efforts to control epidemics, inter alia, to make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control (para 16).
Now, we need to consider this jurisprudence in the context of the novel coronavirus. As an easily transmissible disease and owing to its infectiousness, novel coronavirus requires integrated collective approaches and joint efforts from states. While individual measures can help states contain the virus intra-territorially, they cannot stop its exportation beyond borders. Joint efforts presuppose free flow of information coupled with other specific measures from the earliest of the outbreak.
Moreover, it is the obligation to ‘take appropriate measures to address life-threatening diseases’ that requires states with previous history of dealing with health crises involving contagious diseases and viruses originating from potential (and known) sources to be extra-cautious in attending to and addressing them accordingly with due diligence.
In light of the jurisprudence developed by the European Court of Human Rights (ECtHR), it is the effective control model that underpins the extraterritoriality of human rights. This however is a contested opinion. For an international court exercising universal jurisdiction inter-state, scholarly observation is that the standard should not be effective control as was espoused by the ECtHR, rather effective link with situation necessitating diligence on part of the state (see, here).
China’s containment measures
According to the WHO, China rolled out ‘the most ambitious, agile and aggressive disease containment effort in history.’ The country adopted a number of non-pharmaceutical, public health measures in order to interfere with the chains of transmission. WHO was notified of the pandemic on 3 January; subsequently, the whole genome sequences of the COVID-19 virus too were shared with the WHO. Besides, China conducted epidemiological surveys, epidemiological investigation and relevant surveillance activities using artificial intelligence for tracing and managing of contacts of infected persons. All these containment measures were supported as well as ‘enabled by the innovative and aggressive use of cutting-edge technologies, from shifting to online medical platforms for routine care… to the use of 5G platforms to support rural response operations’ (see here). These responses seem to have been perfectly in line with the ICESCR obligations that China has.
However, amid all these responses, one glaring flaw that cannot be ignored is the delay in adopting the measures. There are compelling studies arguing that if measures were taken earlier (at least in mid or early January), it could have significantly cut the number of infections. (see here, and here).
There are scientific claims that the first symptoms of the novel coronavirus appeared long before the time that China now suggests. The Wuhan authorities were slow to report cases and this delay is responsible for the superspreading events at different parts of the world (see here). A reconstruction of the early seven weeks (considering that the first symptoms in fact appeared in early December) makes it clear that China’s downplaying of dangers to save political embarrassment and old habits of suppressing voices trying to raise alarms, allowed the virus to gain a tenacious grip (see here). China, from the very beginning, invested in controlling the narrative and censoring free flow of information. It also under-reported on the extent, existence, scale and severity of the virus (see here) which contributed to the delay in comprehending the risks and initiating responses by different countries. All these inevitably resulted in the mishandling of the crisis (see here) both in China and across the world.
Travel restrictions that were put in place were grossly ineffective to curb the infection rate across the globe because they were not imposed at the earliest to give time to countries to prepare for their responses (see here and here). As of 23 January 2020, the epidemic had already been seeded in several locations across mainland China, outside the epicentre, Wuhan. After the widely praised travel restrictions in Wuhan were implemented on 23 January, the five origin cities with the highest rates of international case importations were Shanghai, Beijing, Shenzhen, Guangzhou, and Kunming (see here). Travellers from these cities transported the virus to other cities internationally, seeded new outbreaks and markedly increased the number of cases beyond Chinese borders (see here). A convincing timeline goes on to depict how the nonexistence of measures at the earliest accounted for the transmission into several countries outside mainland China.
Thus China’s intra-territorial decisions, actions and policies breached its obligations inasmuch as they caused direct and reasonably foreseeable harm outside its territory (see here). It was not unreasonable to presume how fast the disease could travel beyond borders and how badly suppression of information could impact the health system across the world.
China’s handling of the disputed wet markets and live wildlife trade
After the first cluster of pneumonia-like cases were confirmed, the authorities temporarily closed down the Wuhan based wet market, the wildlife section of which is widely believed to be a key link (if not the source) in the superspreading of the virus. This step is not as time-sensitive as it apparently looks. The wet markets of China which had been identified as a continuing source of severe acute respiratory syndrome, had been left unregulated for a substantially long period of time.
Besides, the trade and sale of wildlife too, remained outside China’s policies. Chinese scientists had warned the country of bringing about a comprehensive ban on wildlife trade and sale back in 2003 and 2010. All these warnings fell into deaf ears. According to some, the current crisis is a huge price that China (with the whole world by its side) is paying for snubbing its leading scientists – the group that lately led the battle in China in understanding the novel fast-moving virus (see here).
Only in February, 2020, China announced a ban on wildlife trade and consumption (see here).The decision of banning the trade and consumption was however, not comprehensive, rather had loopholes inasmuch as there remained non-food exemptions. According to a statement issued by Wildlife Conservation Society (WCS), the ‘[non-food exemption] creates a potential loophole for traffickers who may exploit [it] to sell or trade live wildlife, creating additional challenges to law enforcement officers’ (see here).
The chain of events show that China’s actions and omissions were effectively linked to a situation necessitating diligence on its part and that the country violated the legal obligation to be proactive, in ensuring the protection of human rights outside its borders (see here).
With the lifting of lockdown from Wuhan, China started getting plaudits for its efficiency in containing the coronavirus. This triumphant narrative pretty conveniently masked the early failures of China, alongside the convincing evidence that the virus originated from the unregulated sale of wildlife, and got exacerbated by the strategic negligence, gross omissions, and decisions of the Chinese government prioritizing secrecy over saving lives (see here).
At the time of this writing, over ten million people are infected and more than half a million are dead due to the novel coronavirus in both developing and developed countries all over the world and the healthcare system(s) across the world are overwhelmed. Had there been free flow of information among states and joint efforts as well as integrated measures from the very beginning of the crisis, things could have been different.