Introduction

In November 2019,1 a "strange pneumonia of unknown cause" was identified in Wuhan, China's emerging business hub and capital city, causing 1,800 deaths within the first fifty days of its notification.3 In December of the same year, the cause was identified as a mutated virus of the coronavirus family, later 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 Organization, having caused 118,319 cases and 4,292 deaths globally.5

By this time, the world in general and Nigeria in particular had become aware 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 Nigerian society. Among the measures implemented were a nationwide lockdown, a ban on public gatherings, the closure of schools, restaurants, bars, sports clubs, etc.; mandatory work-from-home orders; the cancellation of domestic and international flights; a ban on the entrance of noncitizens; the 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 the loss of lives, economic strangulation, trauma, hardship, social disorientation, mental torture, disruption of the normal daily existence of Nigerians, etc. As a result, Nigerians increased their demand to hold China, the virus's origin country, responsible and liable for the consequences of COVID-19 in Nigeria, culminating in a class action suit filed against the People's Republic of China by a coalition of Nigerian legal experts led by Prof. Epiphany Azinge, SAN, over the coronavirus pandemic effects in Nigerians. 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 its effects in Nigeria under international laws and principles.

Conceptualization and Establishment of State Liability in the Outbreak and Spread of COVID-19: The Case of China

Liability, according to Black's Law Dictionary, is the state of being bound or obliged by law or justice to do, pay, or make good on 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 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 prevention, protection, and control of the international spread of disease, the International Health Regulations of 2005, hereinafter referred to as the IHR or Resolutions, of which China and Nigeria are two of the 194 signatories, are 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 Article 2. It is therefore under this body of law that the liability of the People's Republic of China for the effects of the outbreak and spread of COVID-19 to other states can be established. Under the IHR, some of the measures and obligations that 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 is carried out in accordance with the provisions of Article 5. It puts China and all other signatories under the obligation to develop, strengthen, and maintain the capacity to detect, assess, notify, and report events that may constitute public health emergencies of international concern under the Regulations of the World Health Organization.

Notification: By the provisions of article 6, the People's Republic of China and all other signatories have to notify the WHO of all events that may constitute a public health emergency of international concern within their territories through the most efficient means of communication available or the National IHR Focal Point and within 24 hours of the 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: Under the terms of Article 8, China or any other signatory may advise the WHO on events occurring within their borders that are of international public health concern, even if they lack sufficient information to complete the decision instrument required by Article 6.

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

Public health response: Article 13 of the IHR obligates the People's 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 examination of these provisions, as well as the evolution of events since the outbreak of COVID-19, will reveal the extent to which the People's Republic of China could be held liable for the spread and negative effects of COVID-19 in Nigeria, in particular, and elsewhere, 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 for 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 a lot of claims that Chinese authorities suppressed early reports of the outbreak of a strange "pneumonia of unclear cause," which could be of international public health concern over the next month.

Additionally, this act of China, beyond contravening the provisions of articles 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 staff 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 a reasonable time, China may have influenced the Director General and staff of the WHO in the discharge of their duties.

Conclusively, it is important to note that a defence or argument about the place of origin of the virus is trivial. This is in accordance with the provisions of Article 7 of the IHR. China, being the first to identify the strange developments, was supposed to be mandated by the IHR to notify the WHO even if it lacked sufficient information about the cause or if it 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 its responsibility may not be achievable. An ancient principle developed during the early days of English monarchs that "The King not been able to do any wrong" is called the "sovereign immunity principle" and 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 People's Republic of China and the Federal Republic of Nigeria), it translates into "state sovereignty." By this principle, a state cannot be a party to any suit instituted against it by any other state except when it consents to be one. As a result, no suit can be filed by Nigeria or any other country against China at the ICJ or any other tribunal without China's 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 the 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 People's 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 the 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 net result is that, barring Beijing's goodwill, it may face no legal consequences as a result of its internationally wrongful acts of omission or commission, which resulted in the negative effects of COVID-19 in Nigeria and elsewhere.

If China is Liable, what is the Remedy?

The class action suit against the People's 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 and remedy is not farfetched. It stems from the provisions of Article 36 of the Draft Articles on the 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 that 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 that 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 of an acknowledgment of the breach, an expression of regret, a formal apology, or another appropriate modality; however, not to the extent of humiliating the responsible state.

Furthermore, article 34 allows these forms of reparation to be used individually or in combination as a remedy. However, due to the persuasive and non-coercive nature of the provisions of the draught articles, recourse to case law 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 about 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 the 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 the implementation of the specific measures adopted in the 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 had a wide-ranging impact on Nigerians' and the world's lives. 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 People's 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, the United Nations has a lot to do.

References

1 Vaid, M. and Manubarwala, A., (2020). Covid19: Can China be let off the hook? | ORF [online]. ORF. [Viewed 20 May 2020]. Available from: https://www.orfonline.org/expert-speak/covid19-can-china-be-let-off-the-hook-65387/

2 Shereen, M. A., Khan, S., Kazmi, A., Bashir, N. and Siddique, R., (2020b). COVID-19 infection: Origin, transmission, and characteristics of human coronaviruses. Journal of Advanced Research [online]. 24, 91–98. [Viewed 4 December 2022]. Available from: doi: 10.1016/j.jare.2020.03.005

3 Ibid.

4 Coronavirus disease 2019 (COVID-19) Situation Report No. 38. World Health Organization (WHO)

5 Ibid.

6 Oak, V. C., (2012). State Responsibility Under International Law. SSRN Electronic Journal [online]. [Viewed 30 May 2020]. Available from: doi: 10.2139/ssrn.2169806

7 Ibid.

8 Rakhmat, M. Z., (2020). Suing China for COVID-19 is impossible and may backfire – why countries must cooperate [online]. The Jakarta Post. [Viewed 21 May 2020]. Available from: https://www.thejakartapost.com/academia/2020/05/06/suing-china-for-covid-19-is-impossible-and-may-backfire-why-countries-must-cooperate.html