LEGAL IDEAS FORUM

COVID-19: THE JUSTIFICATION OF U.S LEGAL ACTION AGAINST CHINA UNDER INTERNATIONAL LAW

Coronavirus commonly known as Covid-19 is one of the most deadly virus the entire world is battling with till date. Due to it  brutality rate, it has gain momentum in many countries with a record numbers of deaths around the globe. States like Italy, U.S, Spain, and China are greatly affected by this virus.  Covid-19 was first identified in 2019 in Wuhan, the capital of Hubei, China. Regrettably, in no time, it started transmitting from one territory to another and as a result, it gradually become a pandemic virus known to the whole world. It has become too prevalent to ignore. 
But then, as a student of international law, one maybe curious to know whether there is any law that regulates matters of this nature under international law.  In other words, is there any legal regime that made it an obligation on  States in the world not to act as to injure or cause discomfort to other states. 
Undoubtedly, our society of today is regulated by laws both at the internal and external level. The essence of this laws as they say is to ensure peace and harmony in the whole world. As a result, for this to be achieved , there need to be a legal framework that define that which is allowed and that which is prohibited. The reason being that, lack of proper legislation is tantamount to acquiescing and approval of any wrongful conduct by any states or individual. 
Under international law, there are rules and regulation that provides for environmental protection and state responsibility at the international level. These laws were developed from two sources of international law namely, international convention (treaty), and customary international law. A total compliance to these laws is a must for states in the world. 
As a cardinal principles of law under international law, States are saddled with certain responsibility as a sovereign body. Customary international law as a source of international law imposes several important and fundamental obligations upon States in the area of environmental protection. In the case of Canada v United state popularly known as the trial smelter case, the tribunal that entertain the matter noted thus:
” under principles of international law, no state has the right to use or permit the use of territory in such a manner as to cause injury in or to the territory of another or the properties or person therein”
This position was further reaffirmed by the court in the Corfu channel case where the court held that:
” The existence of the general obligation of state to ensure that activities within their jurisdiction and control respect the environment of other states or of area beyond national control “
The court while applying customary international law in resolving dispute between states had developed the above principles by way of judicial approach and they have become part of the corpus of international law relating to environment. As a general rule, States are accountable for breach of international law, and such a breach of treaty and customary international law enables the injured state to maintain a claim against the violating state, whether by way of diplomatic action or by way of recourse to international mechanism where such are in place with regard to the subject matter in issue. 
Now, if we are to apply the above principle of international law discussed above to the recent outbreak of covid-19, will it be right to sum up a conclusion that China being the state where this virus emanated from is in breach of the rules of international law on environmental protection as to justified U.S legal action against China? Put in other words, relying on the principle of state responsibility stated above, did China has any obligation to prevent the widespread of covid-19? And if this are answered in affirmation, given the nature and circumstance of this case,  what will be the cause of action if any? All these will be examine below.
As pointed out earlier, States around the world are duty bound to ensure that their environment is safe as not to cause discomfort or injury to the life and property of other states. In an event where a state is in breach of this obligation, such state will be held liable for any trans-boundary harm that occurred in the territory of another state. Undoubtedly, covid-19 is a product of biological weapon recklessly released from the Wuhan institute of virology into the city of Wuhan, China, and as a result, they are expected to ensure that all necessary measures and precautions are in  place in a bid to curtail the widespread of this virus. Since China had failed to prevent the widespread of this virus,  they are in breach of their duty and can be held responsible for any discomfort or injury in U.S and other countries.
In addition to this, Article 5 of ILA Montreal rules provides for what is known as doctrine of prior consultation. Under this doctrine, states planning to carry out activities which might entail a significant risk of trans-frontier harm shall give early notice to states likely to be affected. Where a state failed to comply with this, it will entitle the injured state to seek redress for any lose or injury that may have arise therefrom. 
From all indication, prior to the outbreak of this virus, China must have foreseen the danger other countries might encounter if same is allow to go viral. This notwithstanding, they failed to make any public notification to U.S and other states of the danger ahead before the outbreak. This, invariably is a deviation from the standard of conduct expected from a state as required under international law. China having violate this principle as well, holding them liable is inevitable. It is an undeniable guilt and allegation. As a result of this, U.S will be right in instituting an action against China and same will be justifiable. But then, what will be the cause of action? 
 SUGGESTED CAUSE OF ACTION
Under the law regulating universal environmental protection, there are, of course, a range of general human rights provisions. The right to life, right to an adequate standard of living, right to health, right to food and so forth falls under this category. In addition to this, the preamble to the seminal Stockholm Declaration of the UN Conference on the Human Environment 1972 noted that the environment is ‘essential to the enjoyment of basic human rights – even the right to life itself.
Similarly, Principle 1 of the convention stated that ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being. Article 24 of the African charter of Human and Peoples’ Rights, 1981 provided that ‘all people shall have the right to a general satisfactory environment favourable to their development’. while article 11 of the Additional Protocol to the American Convention on Human Rights, 1988 declared that ‘everyone shall have the right to live in a healthy environment’ and that ‘the states parties shall promote the protection, preservation and improvement of the environment’
It can be gleaned from the above that the right of human in relation to environment is sacrosanct, and as such, states in the world are duty bound not to infringed upon these rights. In an  event where any state, in breach of these right, negligently or intentionally allow the escape of any dangerous chemical weapon into the territorial environment of another country, same will give right of action in tort for causing pain, suffering, and emotional discomfort to people residing in that territory. 
If we are to take a proper look at the symptoms and bodily effect suffered by victim of covid-19, one will see, that most of our human rights in relation to environmental protection are totally infringed upon. Pain, emotional discomfort, fear of imminent serious bodily injury, and death. In fact, many have suffered pecuniary economic damage, loss of service, grief and anguish due to closure of borders and movement nationwide. With all these, many tortuous liability has been committed with remedy readily available. In fact, China will be strictly liable for all damages demanded by U.S.A. 
 CONCLUSION
Environmental protection is a duty on all states in the world. As a sovereign state, it is duty bound on them to ensure that all the human rights relating to environmental protection are not infringed upon by making their environment safe all the time. Where a particular state intend to Carry out any dangerous chemical weapon test with a high possibility of causing trans-boundary discomfort to other state, prior notice is expected to be issue to such states so as to as to enable them to take all necessary precautions. In the absent of this, such a state maybe held liable for breach of intentional agreement, and same will give the affected state cause of action in court. China having failed to meet up with the above standard as required, U.S claim against them is justifiable.
About the author
Gobir Habeeb Bolaji is a 400 level law student from Usmanu Danfodiyo University, Sokoto he can be reached on 08108527278 or via [email protected]
For knowledge and Justice

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