Mar 31, 2020

The Coronavirus Pandemic: A Separation of "The Human" From "The Natural"

The Corona-Virus Disease (COVID- 19), famous for its widespread, has killed tens of thousands of people across the globe and has raisedan indispensable question in the minds of many; whether the Chinese government can be held liable in Negligence, whether the pandemic is an ‘act of God’. In the legal community, an act of God is a concept that allows a party exemption from instances of strict liability and negligence. This article is concerned primarily with the debate, whether the corona-virus pandemic is an act of God or an act of man.

An event, occurrence or accident that cannot be prevented by ordinary human foresight, normally by an operation of natural forces free from human intervention, like flood or earthquake is an ‘Act of God’. James LJ in Nugent V Smith[1] described it as “any accident due to natural causes directly and exclusively without human intervention and that could not have been prevented by any amount of foresight and pains and care reasonably to have been expected”.The determining factor for an act of God is that it "proceeds from the forces of nature alone, to the entire exclusion of human agency."[2]

The courts have expanded this concept by including similar defences such as force majeure and peril of the sea to the mix. The courts have also expanded on the no-fault concept and used the term 'inevitable accident' to describe certain accidents, whether or not caused by an act of God, where all reasonable precautions had been taken and the accident occurred anyway. An inevitable accident, unlike an act of God, can start with human action or originate with a natural force.[3]

On December 31, 2019, the World Health Organisation(WHO) heard the first reports of a previously-unknown virus behind a number of pneumonia cases in Wuhan, a city in Eastern China with a population of over 11 million.[4]What started as an epidemic mainly limited to China has now become a truly global pandemic with cases globally surpassing 669,310 and deaths, at least 30,982 people.[5] Not only is the virus a major concern from a public health perspective, businesses are seeing disruptions which are only likely to increase in the coming weeks and months.

It is apparent that the disease originated from a Wuhan seafood market where wild animals, including marmots, birds, rabbits, bats and snakes, are traded illegally. Coronaviruses, constituting the subfamily  Orthocoronavirinae, are known to jump from animals to humans, so it is thought that the first people infected with the disease, a group primarily made up of stallholders from the seafood market, contracted it from contact with animals.

The hunt for the animal source of Covid-19 is still unknown, although there are some strong contenders. A team of virologists at the Wuhan Institute for Virology released a detailed paper showing that the new coronaviruses' genetic makeup is 96% identical to that of a coronavirus found in bats, while an as-yet unpublished study argues that genetic sequences of coronavirus in pangolins are 99% similar to the human virus. Some early cases of Covid-19, however, appear to have inflicted people with no link to the Wuhan market at all, suggesting that the initial route of human infection may pre-date the market cases. Although the Wuhan market was shut down for inspection and cleaning on January 1, 2020, it appears that Covid-19 had already spread beyond the market itself.

United States President Donald Trump has repeatedly referred to it as the “Chinese virus”. Many of his critics insist the term is racist. U.S. Sen. Kelly Loeffler, opines that the crisis should not be politicized by assigning blame, but our focus should be on pulling together in the common fight against a global disease that makes no distinction between people and recognizes no borders. However, many still argue that the virus is a failure of governance, not a blind force of nature independent of human agency, caused in part by incompetent, malicious, and corrupt politicians. To ignore the political dimension of the coronavirus pandemic is an excellent way to ensure its recurrence, and that to prevent a recurrence, we have to hold accountable the politicians responsible for its global transmission and uncontrolled spread, with all its terrible consequences to populations and economies around the world.[6]

As one of the 194 states party to the legally binding 2005 International Health Regulations, China has a duty to rapidly gather information about and contribute to a common understanding of what may constitute a public health emergency with potential international implications. The legally binding International Health Regulations were adopted by the World Health Assembly in 1969, to control six infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever, and typhus. The 2005 revision added smallpox, poliomyelitis due to wild-type poliovirus, SARS, and cases of human influenza caused by a new subtype, set forth in the second annex.

Article 6 of the International Health Regulations requires states to provide expedited, timely, accurate, and sufficiently detailed information to WHO about the potential public health emergencies identified in the second annex in order to stir efforts to prevent pandemics. States are required to provide timely and transparent information as requested and to participate in collaborative assessments of the risks presented. Yet China rejected repeated offers of epidemic investigation assistance[7] from WHO in late January, as well as the U.S. Centres for Disease Control and Prevention in early February, without explanation.[8]This answers the question whether reasonable care was taken by China to prevent the horrific consequences the disease posed. China’s failure to expeditiously and transparently share information with WHO in accordance with the International Health Regulations[9] constitutes an early and subsequently extended breach of its legal obligations.

An epidemiological model at the University of Southampton found that had China acted responsibly just one, two, or three weeks more quickly, the number affected by the virus would have been cut by 66 percent, 86 percent, and 95 percent, respectively.[10] By its failure to adhere to its legal commitments to the International Health Regulations, the Chinese Communist Party has let loose a global contagion, with mounting material consequences.[11]

Other than the fact that the act of God defence is still not relied on very often, likely because of the difficulty of proving that human elements played no role in causing an injury, China’s initial lackadaisical attitude, malfeasance and breach of an international obligation is certainly the cause of the cost of the coronavirus disease. Thereby making it improbable that the defence will excuse the Chinese government. Hence, China bears legal responsibility for its internationally wrongful acts.[12]

Under Article 31 of the Articles of State Responsibility, states are required to make full reparations for the injury caused by their internationally wrongful acts. Injuries include damages, whether material or moral. Injured states are entitled to full reparation “in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition”.[13] Restitution in kind means that the injured state is entitled to be placed in the same position as existed before the wrongful acts were committed.[14] To the extent that restitution is not made, injured states are entitled to compensation[15], and satisfaction, in terms of an apology and internal discipline and even criminal prosecution of officials in China who committed malfeasance.[16]As the world continues to suffer the costs of China’s breach of its legal duties, it remains to be seen whether the injured states can be made whole.

Perhaps, China did not intentionally create a global pandemic. However, the increasing incidents of sickness and death as well as the economic cost of the pandemic cannot be overlooked. The world has paid and is still paying for China’s carelessness.

Written by:

Oluwabukunmi Adeniran.

[1] (1876) 1 CPD 428.

[2]Rice v. Or. Short Line R.R. Co., 198 P. 161, 164 (Idaho 1921).

[3]Lawrence R DeMarcay, Michael Harowski, “Planning ahead to use act of God as legal defence.”. Published: July 8, 2015. Accessed March 30, 2020.

[4]Matt Reynolds, “What is coronavirus and what happens now it is a pandemic?”. Published: March 27, 2020. Accessed March 29, 2020.

[5]CNBC, “Coronavirus live updates: Cases globally surpass 660,000, Spain sees highest daily jump in deaths”. Published: March 28, 2020. Accessed March 29, 2020.

[6]Paul D. Miller, “Yes, Blame China for the Virus.”. Published: March 25, 2020. Accessed March 29, 2020.

[7] New York Times: By Donald G. McNeil Jr. and Zolan Kanno-Youngs, “C.D.C. and W.H.O. Offers to Help China Have Been Ignored for Weeks”. Published: February 7, 2020. Accessed March 30, 2020.

[9] Article 14.

[10]Shengjie Lai, Nick W Ruktanonchai, Liangcai Zhou, Olivia Prosper, Wei Luo,Jessica R Floyd, AmyWesolowski, Mauricio Santillana, Chi Zhang, XiangjunDu, Hongjie Yu, and Andrew J Tatem, “Effect of non-pharmaceutical interventions for containing the COVID-19outbreak in China.”. Published: March 3, 2020. Accessed March 30, 2020.

[11]James Kraska, “China is legally responsible for Covid-19 damage and claims could be in the trillions.”. Published: March 23, 2020. Accessed March 30, 2020

[12] Article 28 of the International Health Regulations.

[13] Article 34.

[14] Article 35.

[15] Article 36.

[16] Article 37.