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Assessing the Extent of the Liability of China in the Negative Effects of COVID-19 in Nigeria

INTRODUCTION

In November 2019[1], a "strange pneumonia of unclear cause" was identified in Wuhan, an emerging business hub and the capital city of Hubei province of China which made 1,800 deaths within the first fifty days of its notification in Wuhan alone[2]. In December of the same year, the cause was identified to be a mutated virus of the coronaviruses family later on named SARS-CoV-2 by the International Committee on Taxonomy of Viruses (ICTV) while the strange "pneumonia of unclear cause" it caused was named COVID-19.

The disease, whose general symptoms are fever, dry-cough and shortness of breath[3] gained momentum in spreading through human to human (H2H) transmission and extended beyond Chinese national boundaries. By the 27th of February 2020, it was present in 48 countries including Nigeria which recorded its index case.>[4] Accordingly, it assumed the status of a pandemic on the 11th of March 2020 as declared by the World Health Organisation, having made 118,319 cases and 4,292 deaths globally[5].

By this time, the world and Nigeria particularly had become conscious of the threat the virus posed to humanity. This consciousness led to the implementation of drastic measures and policies by the Nigerian government, organizations, firms, individuals etc. to curb the spread of the virus and mitigate its overarching effects in the Nigerian society.

>Amongst such measures implemented were a nationwide lockdown, ban on public gatherings, closure of schools, restaurants, bars, sports clubs etc. mandatory work from home orders, cancellation of domestic and international flights, ban on entrance of noncitizens, evacuation of citizens from abroad etc.

The implementation of these policies and measures together with the direct and indirect impact of the disease (COVID-19) led to loss of lives, economic strangulation, trauma, hardship, social disorientation, mental torture, disruption of normal daily existence of Nigerians etc. This consequently led to a growth in the demand by Nigerians to hold China which is considered the country of origin of the virus responsible and liable for the consequences of COVID-19 in Nigeria culminating in a class action suit against the Peoples' Republic of China over the coronavirus pandemic effects in Nigerians filed by a coalition of Nigerian legal experts headed by Prof. Epiphany Azinge, SAN.

It is in light of these developments that this article attempts to provide a comprehensive and detailed exposition of China's liability in the SARS-CoV-2 outbreak and effects in Nigeria under International laws and principles.

CONCEPTUALISATION AND ESTABLISHMENT OF STATE LIABILITY IN THE OUTBREAK AND SPREAD OF COVID-19: THE CASE OF CHINA

Liability according to the Black's Law Dictionary is the state of being bound or obliged in law or justice to do, pay, or make good something. It is also defined as a legal responsibility.

International liability refers to a State's civil responsibility or obligation to pay compensation or make reparations for injuries that non-nationals suffer outside its national boundaries as a result of activities within its territory or under its control.[6] These injury causing activities are usually than not preventable and can either be acts of omission or commission. A State's international liability is engaged not only under international law, but also within the national dimension of municipal legal systems in circumstances involving transnational relations[7].

As regards to prevention, protection and control of the international spread of disease, the International Health Regulation, 2005 hereinafter referred to as the IHR or Resolutions of which China and Nigeria is one of the 194 signatories is the main body of regulations. It provides States with obligations and responsibilities to prevent, protect against, control and provide a public health response to the international spread of diseases as stated in its article 2. It is therefore under this body of law that the liability of the Peoples' Republic of China in the effects of the outbreak and spread of COVID-19 to other States can be established.

Under the IHR, some of the measures cum obligations China and other signatories are expected to apply and abide by in achieving the goal of the Resolutions as outlined in Part II of it are:

Surveillance: This is by the provisions of article 5. It puts China and all other signatories under obligation to develop, strengthen and maintain the capacity to detect, assess, notify and report events which may constitute public health emergency of international concern in accordance with the Regulations to the World Health Organization.

Notification: By the provisions of article 6, the Peoples' Republic of China and all other signatories have to notify the WHO of all events which may constitute a public health emergency of international concern within their territories through the most efficient means of communication available or through the National IHR Focal Point and within 24 hours of assessment of public health information.

Information-sharing during unexpected or unusual public health events: Article 7 of the IHR mandates China and all other signatories to share information with the World Health Organization on evidence of an unexpected or unusual public health event within their territories, irrespective of origin or source, which may constitute a public health emergency of international concern.

Consultation: By the provisions of Article 8, China or any other signatory may advise the WHO on events occurring within their territories which are of international public health concern even when it lacks sufficient information to complete the decision instrument in order to notify the WHO as required by article 6.

Verification: By Article 10's provisions, the signatories (including China) is obligated to assist the WHO in the verification of the information they provided as a notification of all events which may constitute a public health emergency of international concern within their territories.

Public health response: Article 13 of the IHR obligates the Peoples' Republic of China and all other signatories to develop, strengthen and maintain the capacity to respond promptly and effectively to public health risks and public health emergencies of international concern.

A careful study of these provisions and the evolution of events since the outbreak of COVID-19 will reveal the extent to which the liability of the Peoples' Republic of China could be established in the spread and negative effects of COVID-19 in Nigeria particularly and beyond, given its role in the developments.

While it is evident that China has a very good surveillance system and public health response mechanism in place, such other measures and obligations as are reasonably necessary under the IHR in preventing the spread of COVID-19 which ultimately would have prevented the negative effects occasioned by it might not have been duly observed by Beijing. Such measures among others include the timely notification of the WHO specifically not more than 24 hours after the assessment of public health information. On this point, the recent admission of China to destroying early coronavirus samples lends credence to the lot of claims of Chinese authorities suppressing early reports of the outbreak of a strange "pneumonia of unclear cause" which could be of international public health concern for over a month.

Additionally, this act of China beyond contravening the provisions of article 6 and 7 of the IHR can be argued to have violated article 37 of the Constitution of the World Health Organization. The article stipulates that the staffs and Director General of the WHO are international officers and as such should not take instructions from any State nor should a State attempt to influence them or their decisions.

However, by withholding information available to it concerning an international health emergency of international concern beyond reasonable time, China may have influenced the Director General and staffs of the WHO in the discharge of their duties.

Conclusively, it is important to note that a defence or argument of place of origin of the virus is trivial. This is in congruence with the provisions of Article 7 of the IHR. China being the first to identify the strange developments was supposed as mandated by the IHR to notify the WHO even if it lacked sufficient information about the cause or if it had thought it to have originated elsewhere.

IMPEDIMENTS TO THE ENFORCEMENT OF RESPONSIBILITY ON CHINA

While China may well have breached some of the provisions of the IHR, holding China legally responsible and enforcing the responsibility may not be achievable.

An ancient principle developed during the early days of English monarchs of "The King not been able to do any wrong", called the Sovereign Immunity principle, forbids the government or its political subdivisions, departments and agencies from being sued in civil or criminal litigation[8]. Though this principle does not literarily apply in modern legal systems (including those of the Peoples' Republic of China and the Federal Republic of Nigeria), it transliterates into State Sovereignty. By this principle, a State cannot be a party in any suit instituted against it by any other State except when it consents to be one. Consequently, no suit can be instituted at the ICJ or any other tribunal for that matter by Nigeria or any other country against China without having China consent to be a party in the suit.

On this point, it is most likely that China would refuse to participate in any legal proceedings if named as a defendant in a lawsuit under the IHR or any other international regulation having done same in the South China Sea arbitration brought by the Philippines against it.

Additionally, it is important to note that the Security Council of the United Nations of which the Peoples' Republic of China is a permanent member is the organ of the UN with the responsibility of enforcing the decisions of the ICJ when necessary as empowered by article 94 of the Charter of the United Nations and Statute of the International Court of Justice. Consequently, China as a permanent member of the Security Council of the United Nations enjoys veto power and as such can override any decision of the council intended to be taken to ensure Beijing's compliance with the decisions of the International Court of Justice.

The cumulative effect of these is that except by Beijing's good will, it may not suffer any legal consequence as a result of its internationally wrongful acts of omission or commission resulting in the negative effects of COVID-19 in Nigeria and elsewhere.

IF CHINA IS LIABLE, WHAT REMEDY?

The class action suit against the Peoples' Republic of China over the coronavirus pandemic's effects on Nigerians filed by the coalition of Nigerian legal experts headed by Prof. Epiphany Azinge, SAN is to the tune of 200 billion United States Dollars.

Although there is no provision for remedy in the event of a breach of the provisions of the IHR under the Regulations, the demand of 200 billion United States Dollars as compensation cum remedy is not farfetched. It stems from the provisions of article 36 of the Draft articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001, and submitted to the General Assembly of the United Nations for assent.

In addition to compensation (which is what this coalition of lawyers is demanding), other forms of remedy which are provided are inter alia:

Restitution: By the provisions of article 35, a State responsible for an internationally wrongful act is under an obligation to make restitution, i.e. to re-establish the situation which existed before the wrongful act was committed provided restitution is not materially impossible.

Satisfaction: Under Article 37, the State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act in so far as it cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality however, not to the extent of humiliating the responsible State.

In addition, article 34 allows these forms of reparation, in application as remedy to either be singly or in combination.

However, due to the persuasive and non-coercive nature of the provisions of the Draft Articles, recourse to case laws is inevitable. It is in light of this that the Diallo case stands out among others. In the case, the International Court of Justice fixed the amount of compensation due from the Democratic Republic of the Congo to the Republic of Guinea for the non-material injury suffered by Mr Diallo at 85,000 United States Dollars and the amount of compensation due from the Democratic Republic of the Congo to the Republic of Guinea for the material injury suffered by Mr Diallo in relation to his personal property at 10,000 United States Dollars.

The implication of this is that the ICJ can award nominal amounts of money as compensation for material and non-material damages suffered by States and individuals arising from internationally wrongful acts of other States.

However, in the LaGrand case, between Germany and the United States of America, the ICJ unanimously took note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations and found that that commitment must be regarded as meeting the Federal Republic of Germany's request for a general assurance of non-repetition and as such serves as a remedy.

CONCLUSION AND RECOMMENDATION

The coronavirus global epidemic outbreak indeed had lots of effect on the lives of Nigerians and the world at large. Its effects on the economy are perhaps the most obvious and saturated with negative consequences. However, the desire to hold China responsible is far from achievable given the constraints associated with international laws and principles together with the position of the Peoples' Republic of China in the international community.

However, a coming together of States for collective efforts towards restoring the status quo and alleviating the sufferings of their citizens occasioned by the coronavirus global epidemic will be more beneficial. At this point in time, the United Nations has a lot to do.




REFERENCES


[1]Retrieved from https://www.orfonline.org/expert-speak/covid19-can-china-be-let-off-the-hook-65387 on 20 May 2020

[2]Retrieved from https://www.sciencedirect.com/science/article/pii/S2090123220300540 on 20 May 2020

[3]Ibid.

[4]Coronavirus disease 2019 (COVID-19) Situation Report -38. World Health Organization (WHO).

[6]Sompong Sucharitkul, State Responsibility And International Liability Under International Law, 1996. Golden Gate University School of Law

[7]Ibid.

[8]Retrieved from https://www.thejakartapost.com/academia/2020/05/06/suing-china-for-covid-19-is-impossible-and-may-backfire-why-countries-must-cooperate.html on 21 May 2020

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