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Litigation or Inquiry against China in light of COVID-19?

Keeping in mind the drastic effect that the COVID-19 pandemic has had on the daily lives of human all over world, there are questions about its rampant spread and origin need to be addressed at the earliest possible. China has been at the center of the controversy and has faced much flak from the international community.

Rather than merely placing the blame on one country the need of the hour is to determine how the problems can be managed more effectively and how a vaccine can be fabricated and distributed around the world.

Adversarial litigation against China would serve no purpose whatsoever, one country cannot be held solely responsible for the rampant spread of the virus to other States. The conduct of each and every country would also need to be scrutinized in case the matter is brought to the ICJ. Many States adopted policies and strategies to contain the spread which can be called questionable to say the least. Individual nations bringing action against other States would be of little help in achieving an agreement on future global collective action.

Worldwide threats can only be solved if the nations of the world come together and work hand in hand. Individual action would rather be clearly counterproductive. Recommendations and findings of an international commission of inquiry that reveal important aspects related to the virus would bring much needed clarity and a possible consensus between all States can achieved based on these findings.

 Such an approach would function as a much better alternative than initiating legal action at an International forum such as the ICJ. The main aim of such an inquiry should however not be to focus on blame or accountability, rather it must be used as a means of achieving a shared understanding of the crisis, preventing the dissemination of false information, concentrating on structural changes that would be needed in order to ensure that a repeat of such a scenario is avoided at all costs in the future.

References to inquiry can be found under Article 9 of the Hague Convention for Pacific Settlement of Disputes, 1907, and it is contemplated as a means to resolve disputes by means of an impartial investigation into the facts of the situation. Situations involving questions of facts as opposed to questions of law can often be resolved just by elucidating the correct and actual facts surrounding the dispute.

An international commission is set-up for the purpose, this aforementioned inquiry is carried out by a third party to ensure that no bias or prejudice is caused to either of the parties. An inquiry may consist of hearings, examination of witnesses or even visits on spot. On completion the commission prepares a report detailing its findings and is required to submit the same to body/parties that instituted the inquiry.

The commission is required to be funded equally by all parties involved in addition to any other expenses they might incur on their own behalf. Many disputes are caused due to misunderstandings and an absence of concrete facts relating to the incident in question, once these facts are bought to light, there are high chances that the parties would be inclined towards peaceful settlement of the issue.

The Dogger Bank Incident of 1904 where Russian ships mounted an attack on British ships under the false belief that the ships were in fact hostile crafts is one example where inquiry proved to be extremely successful. An inquiry commission was setup consisting of 4 experts in the field (Naval officers in this case) to examine in great detail all circumstances concentrating specifically on the responsibilities and allocation of blame. The report of the commission concluded that there was no reasonable justification for the acts on part of Russia.

Both parties accepted the findings elucidated in the report and the issue was resolved amicably with the payment of an agreeable compensation to the British. This incident proves that an impartial inquiry can result in the complete resolution of a dispute without taking a matter before the ICJ.

Different organs of the UN may require to obtain detailed knowledge of the relevant facts in order to exercise their functions in an effective fashion. As per the Declaration on Fact finding (December 9, 1991) adopted by the General Assembly, the Security Council, the Secretary General or the General Assembly may employ such fact-finding missions to uncover the truth behind the matter. Even if a case is in the nature of a legal dispute as opposed to a factual one, fact finding is a crucial exercise that would help in settling the dispute. After all it would be virtually impossible to decide or resolve a dispute without possessing the requisite knowledge of all the relevant facts.

The parties which are the subject of the inquiry may choose to appoint special agents to act in the capacity of intermediaries between the commission and the parties or to acts as representatives on their behalf if they so wish (Article 14 of 1907 convention).

Inquiry commissions have been used successfully in various cases throughout the history of the United Nations such as in the Gulf war between Iran and Iraq (1984) and to investigate the involvement of mercenaries in the invasion of Seychelles (1981)

An inquiry that would be focused on determining accountability would however be as bad as the initiation of a case before the ICJ. If States fear legal ramifications the end goals of inquiry will be undermined even before it ever begins. Likelihood of cooperation from different states would be drastically reduced in such a case, leading to obstruction and diminished transparency. States might even actively question the credibility and capacity of such an investigation if they fear legal claims and political retribution.

Questions regarding the response of International health organizations (such as WHO and IHR) have also been raised, the inquiry could serve as a means to back or refute such claims by providing concrete evidence however it is more important to identify flaws and problems that may prevent a more efficient response in future.

The commission would consist of experts from all over the world, the best of the best working together in order to make recommendations to ensure that if the world is ever faced with such a threat, a mechanism to combat the same is already in place. It needs to be insured that the inquiry is not used as a means to extract vengeance or obtain retribution.

Despite the fact that nearly 7 months have elapsed since the first case of COVID -19 was identified, the world is still mystified about where and how the virus actually originated from. Without the answer to a question as basic as this, how can the world be prepared for another event of a similar disruptive magnitude. Compare it to the case of a building being set on fire, if no one is able to determine whether the fire was caused by a gas leak or an act of arson, how can effective measures be taken to combat a future fire. Preventive measures can only be determined once the cause is determined, whether the need is to improve security (as in the case of arson) or to improve the architecture of the building (as in the case of a gas leak).

As discussed earlier an inquiry commission must be unbiased and free from prejudice, all principal organs of the United Nations have been vested with the power to set up such a fact-finding exercise. The efficacy of the exercise would however be determined by the extent to which States cooperate, since the findings of an inquiry commission are non-binding there are higher chances that States would be more willing to offer their support and thereby provide the commission with numerous sources of evidence they may take into consideration.

If a case was to be initiated and the ICJ was to embark on such an investigation, there would be active concealment of essential facts and States would be politically inclined to point fingers and assign blame while refusing to permit their own actions to be put through scrutiny. When faced with repercussions it is human nature to act in self-interest. Such a response would be unwanted and only end up creating even more hurdles.

WHO and various nations sent scientists and researchers to China to conduct their own investigations into the matter, but these efforts seem to have stalled and are completely dependent on Chinas co-operation.

An international inquiry commission acting with the support of all nations including China would have a much better chance of success as opposed to any other means. Each state would also be entitled to assign representatives that function as liaisons between the States and the commission, thereby promoting transparency and continued co-operation. It is important to remember that China is facing the brunt of the situation as heavily as any other nation.

Pointing fingers & assigning blame pre-emptively without the availability requisite facts would not be just or fair. Once the report of the commission is made available to the authority which initiates such an investigation, legal action may be taken if any party is found to be in contravention of basic international norms.

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