Locating COVID19 Outbreak Accountability : Authoritarianism and International Law

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Pankaj Choudhary, Asst. Professor at Campus Law Centre, University of Delhi
Author : Pankaj Choudhary
Asst. Professor at Campus Law Centre
University of Delhi

The historiography of 2020 will be dominated by the actions and omissions of one entity – the Communist Party of China (CCP). In several aspects, 2020 represents an abject repudiation of Francis Fukuyama’s notion of an end of history. The CCP has finally embarked Deng Xiaoping’s 4-decade old plan: the bided time and hidden strengths have finally come of age. CCP is asserting its rise. This is demonstrated through the suppression of the in Hong Kong legislature; expansionism in South China Sea; and skirmishes with India. Perhaps a more significant indicator of the CCP’s rise is the impunity it has enjoyed for its mishandling of COVID-19. That despite a socio-economic and human toll unmatched in a century, the administrative apparatus presiding over its initial mismanagement has escaped accountability, testifies CCP’s rise as a pre-eminent power.

 

Before this analysis proceeds however, it is important to emphasize that our conclusions are a critique of the CCP as a political entity; not an instrumentality for racists and xenophobes. A politico-administrative entity, CCP, is distinct from the Chinese culture and people. Governments anywhere in the world do not define individuals, nations, or cultures. It is as immoral to use COVID or CCP’s actions as enablers for racism against the Chinese people, as it would be to use systemic racism in the US for discriminating against Americans. A pandemic cannot – and must not – be assigned to a particular people. Terms like “Chinese virus” are reprehensible and deserve repudiation for their race-baiting undertones. Those using them, including US Presidents, are engaged in obfuscating their own mismanagement of the crisis. Confucius’ ideal of “moral sense” stands as a defining principle of civilized society; race-baiting premised on a pandemic is an affront to that high ideal.

 

 

The UN Charter declaims international solidarity and cooperation for the “advancement of all peoples” as an international obligation. This view is grounded in Emer de Vettel’s conception of the offices of humanity. It is an organic bottoms-up approach that transposes solidarity expected in human relationships to States. In doing so, Vettel articulates a duty of extending mutual assistance for common “preservation and happiness.” He exhorts that this duty extends to “doing everything in our power” to achieve that end. Vettel places a duty to prohibit action that would cause “harm to others.” He is quite comprehensive and deliberate in framing this prohibition and exempts any injury resulting from negligence. As primary actors in the modern Westphalian international space States – acting on behalf of one or several Nations – are conferred with the responsibility of fulfilling these duties.

 

 

States are a complex aggregate of specialized instrumentalities clothed with administrative authority. This enables them to galvanize the best resources – intellectual and otherwise – in responding to challenges – at the core of which is the Weberian bureaucracy. The system consists of institutions of accountability to check its vigor and efficiency. Accountability principally exists through political supervision – elected or otherwise. Where the political wings have larger public accountability of some form, civil society and the electorate acts as an additional check on the political and bureaucratic wings. Over the last century, this system has proven to be extremely efficient. Far from the Kafkaesque nightmares, modern States have catalyzed social, economic, and scientific advancements at an unprecedented scale. However, States do fail to perform at times, and this failure can be broadly attributed to three themes. First, crises can individually or cumulatively overwhelm resources; Second, structural weaknesses may arise owing to lax oversight weakening capacity from within. This can be compounded in the absence of accountability from civil society; Third, the novelty of the crises may be such that it simply cannot be managed immediately;and, Fourth, internal or external sabotage.

 

 

With COVID-19, we argue that the CCP’s initial failings can be attributed to the second factor, viz., a structural weakness in its internal management capacity. Given the evidence, this structural weakness cannot be attributed to any resource scarcity but instead, is a demonstration of the dangers of an authoritarian system that prizes ruthless centralization above all else. As a sovereign, the CCP is well- entitled to determine its own political system. However, causing the adverse consequences of such choices to spill-over into the wider world, through deliberate acts of omission and commission, constitutes a breach of its solidarity obligations under international law.
Investigations undertaken by CNN, and the Associated Press have highlighted several instances of questionable conduct. Due deference here must be accorded to the novelty of the pandemic, and hence it is critical to distinguish genuine errors in good faith, from prima-facie ill- intentioned acts and omissions. That said, some important facts stand out.

 

 

Delay in Informing WHO: COVID-19 was first detected on Dec 1, 2019 in Wuhan. Unable to treat the patient, hospitals sent samples for testing on December 24. COVID-19 was partially sequenced and identified on December 27, 2019. Beijing is known to have learnt about it atleast by December 30 when circulars altering hospitals were issued. Critically, the WHO was never informed by Beijing and it first learnt about COVID through an open source platform on Dec 31. Infact, it was the WHO which had to initiate contact and formal communications only began on Jan 3, 2020 – 6 days after the virus was first identified. WHO protocols – updated after the SARS epidemic – require national authorities to “immediately notify” it if an influenza is “suspected”.

 

 

Suppression of Information: A Chinese State-owned lab fully sequenced the virus on Jan 2, 2020. Beijing issued a spree of gag orders. Labs were asked to cease testing altogether, destroy existing records and cease communication with the public about COVID. Existing samples were ordered to be sent exclusively to designated labs (which too, were under gag orders), or destroyed. A scientist in Shanghai independently sequenced the virus, and in an internal memo (Jan 5 memo), warned authorities of its “infectious” nature. On Jan 6, China’s CDC initiated a secret second level emergency response, even its own employees were in the dark. On Jan 7 a high-level meeting with China’s President and Premier took place, the meeting’s contents remain a secret, and its existence was only disclosed in late February. Clearly, this signals an internal understanding of the severity of the virus, yet none of this information ever got to the WHO or the public at the time.

 

 

It was only on Jan 8, through a Wall Street Journal report, that the world discovered that COVID had been sequenced. Embarrassed by the report, on Jan 12, 2020, Beijing officially released the sequence – a delay of 14 days from the first successful sequencing. Experts note that delaying the sequence of a virus stalls efforts to contain and understand it, allowing it to travel abroad. The first case in Thailand was found on Jan 9. AP notes that in the month of January itself the pandemic had grown by 100-200 times. Until as late as January 28, WHO was short of data. The WHO Director General had to personally request Xi Jinping for greater access. Sitting on information that did it no prejudice is a cardinal failure of WHO protocols – a binding international agreements, to which China is a party.

 

 

Repression of Whistleblowers: Before Beijing officially released the genome sequence, Dr. Zhang Yongzhen, who authored the Jan 5 memo, released it independently a full day earlier. This helped Thai authorities confirm that the virus had indeed reached Thailand. On Jan 12, Dr. Yongzhen’s lab was raided and shuttered. Dr. Li Wenliang, posted warning about COVID, and was arrested for spreading “fake news.” She later died of COVID in custody. Xu Zhiyong, a critique of the CCP’s handling of COVID is being held in secret detention without a lawyer. Dr. Ai Fen, who first reported COVID-19 to authorities and also shared information with her classmates and colleagues has been missing. Although some claim she is still around. Before she went missing, she alleged that her COVID related interviews were being scrubbed from the internet by censors.

 

Cumulatively, these actions raise serious questions about the effect that CCP’s authoritarian governance has on the world. While territorial disputes, military adventurism, and trade conflicts are par for the course in geopolitics, an active attempt to conceal information about a pandemic, repress whistleblowers and delay factual clarity is unprecedented. For an establishment that seeks superpower status – and one that increasingly possess the economic and military might – Beijing’s actions repudiate principles of international law unlike any superpower before it. What would the world look like should this conduct become a norm? That should be the most concerning question of 2020.

 

NOTE :  The Author is an Asst. Professor at Campus Law Centre, University of Delhi, Directed studies fellow, The Hague academy of international law, Netherlands and Professional legislative fellow, Bureau of Education and Cultural Affairs, United States Department of State

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