Could China be Taken to ICJ over COVID-19 Pandemic?


The coronavirus pandemic has caused havoc worldwide, with over 3,1 million confirmed COVID-19 cases and almost 218000 COVID-19 related deaths over time. Until an effective vaccine will have been created and will become widely available to the world population, the coronavirus remains a serious threat to global health. Several class action lawsuits, at least six, have been filed against the Chinese government and government departments in federal U.S. courts. The lawsuits are concerned with COVID-19 related losses, death and injuries. Also, several jurists worldwide are discussing whether China can be taken to the ICJ over the coronavirus pandemic.

The efforts to prevent further spread of the virus and to control further effects of the COVID-19 have resulted in a radically changed world, far-reaching consequences and a slowing down of physical globalization. The near standstill of global economic activity as a result of COVID-19 has led to a worldwide financial crisis with yet unforeseen consequences.

The first COVID-19 case is said to have occurred in China. It can be traced back to November 17, 2019 in China's Huibei province. Much later, on December 31, 2019, China informed the WHO of a pneumonia of an unknown source. It shared genetic information about the virus on January 12, 2020. There have been voices blaming China for failing to timely and adequately reporting to the WHO about the coronavirus outbreak and for not properly containing the spread of COVID-19. China has been accused of negligence in this regard, and of not being transparent about the true facts and figures regarding the COVID-19 outbreak. China was criticised for deliberately concealing facts with regard to the coronavirus

Some describe COVID-19 as the 'Chinese virus'. Fear for COVID-19 has fueled xenophobia and racisim against people of Asian descent worldwide.  A recent Chinese lawsuit pursues compensation for "reputational damage done by President Donald Trump's use of the phrase  'the Chinese virus' to describe the coronavirus".

Several class action lawsuits, at least six, have been filed against the Chinese government and government departments in federal U.S. courts. The lawsuits are concerned with COVID-19 related losses, death and injuries. However, law professor Stephen L. Carter from Yale University and several other jurists question the legal liability of these class action suits since it is hard to prove; there is no basis for jurisdiction in a U.S. court. Professor Carter explains that Nation-states are immune from such lawsuits

The legal community also discusses whether China can be taken to the International Court of Justice over COVID-19. There are jurists who believe that China has committed an international wrongful act by failing to report to the WHO timely about the COVID-19 outbreak.

Several jurists agree that suing China before the ICJ would not be an easy task, but rather a "herculean" venture. Establishing the question of the dispute would be difficult and this makes the "probability of success very slim", says Atul Alexander, assistant professor of law at West Bengal National University of Juridical Sciences. Some jurists think that it is not worth considering to sue China before the ICJ. The ICJ can only exercise its jurisdiction when a State has given its consent, which is not the case. China has not given its approval.  Alexander and others are of the opinion that rendering an advisory opinion of the ICJ could offer a safer and more advantageous option. Consent from the disputant parties is not necessary for invoking the advisory jurisdiction of the ICJ. Even though an advisory opinion from the ICJ is not legally binding, it could nevertheless help to set a precedent for the international community which would help to regulate the conduct of states. This would aid states to participate proactively in the fruitful functioning of the United Nations system, says Alexander.

It is clear that in spite of the legal consequences of the COVID-19 outbreak, international law and international cooperation are needed most to defeat the coronavirus pandemic. It is necessary to show solidarity in fighting COVID-19, especially to countries which have been affected the most. A good example of solidarity is the Coronavirus Global Response. This pledging event was convened on May 4, 2020. The event was started with the aim of raising funding for the development and universal deployment of diagnostics, vaccines and treatments against COVID-19. The initiative has been co-convened by several countries, including the EU, Germany, Norway, France, the United Kingdom, Spain, Italy, Japan, the Kingdom of Saudi Arabia and Canada.The donors have raised €7,4 billion in pledges.

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