The present time is not easy for us, the humans. The COVID-19 pandemic is ravaging the countries, taking away thousands and thousands of innocent lives. The world stands united to fight this, but still, this force is not enough to combat the issue at hand. The current crashing Economies, the International Havoc and the Atmosphere of Terror is something that cannot be controlled until and unless a robust legal system is there to safeguard interests. This article aims to critically analyze the existing Indian legal structure; and also, try and understand the approach that governments have implemented to deal with this pandemic and its effects, with a special emphasis China’s Trans-Boundary liability.
INDIAN SCENARIO: LAWS, ACTS, AND REGULATIONS BEING INVOKED
In India, the gravity of the situation can be understood by the fact that how a colonial-era act is being invoked to tackle the situation, as practically no one anticipated such drastic consequences to befall. The Epidemic Diseases Act, 1897 is a colonial-era antiquated statue that has been implemented to address the issues at hand. However, the act is being questioned because just like other draconian colonial laws, it gives authorities extraordinary powers. The whole issue pertains to this single question – Schedule VII of the Constitution of India defines the subjects on which laws can be made by the state government, or the central government, or both. In this Schedule, the issue of epidemics can fall under either of two heads – “Public Health” which falls exclusively in the domain of state governments and “Prevention of the extension from one State to another of infectious or contagious diseases” which falls under the Concurrent List.
Many Indian states have their own Public Health and Wellbeing related laws like, the Madhya Pradesh Public Health Act, 1949, and Goa, Daman and Diu Public Health Act, 1985, etc. which also deal with infectious diseases and checking their spread. However, the major drawback is that not all states have such laws and the others have failed to implement them harmonically, so as to not disrupt other laws. Resultantly, to deal with the onset of the pandemic in India, the Ministry of Health and Family Welfare had to advise the states and Union Territories to invoke the 1897 Act for enforcing government advisories being issued to the states. Exercising powers under the Act of 1897, the Epidemic Diseases COVID-19 Regulations, 2020 was issued to UTs and States.
The Central Government is perplexed too, owing to the fact that legislation dealing specifically with the outbreak of infectious disease doesn’t exists. Though attempts were made by drafting Public Health (Prevention, Control, and Management of Epidemics, Bio-Terrorism, and Disasters) Bill, 2017 which was proposed by the central government which sought to repeal the Epidemic Diseases Act, 1897; but it was discarded. Attempts were made to introduce a National Health Bill, but then the center faced yet another hurdle owing to ‘Public Health’ being a state list subject. Due to the absence of such central legislations’ government has invoked the Disaster Management Act, 2005 (DM Act)to issue advisories and directives, including the 21-day lockdown issued on 24th March 2020, followed by two other lockdowns. Even though outbreak of epidemics and infectious diseases is not expressly included in the definition, the same is broadly worded and can be interpreted. By invoking the provisions of DM Act, the Central Government has been able to use the disaster management funds set up under the DM Act, to fight the epidemic as financial inadequacies were major hurdles that came in the way.
CHINA’S STANCE: UNDERSTANDING THE TRANS-BOUNDARY LIABILITY
The origin of COVID-19 can be traced to the Wuhan Province of China, specifically to its meat markets. Even though during 2003, China had explicitly promised to shut down its wet markets due to the outbreak of SARS, it had failed to do so. Thus, the question arises as to if China can be punished for Trans-boundary environmental damage in the context of contagious disease transmission across the sovereign border? It was the Trail Smelter Arbitrationwhich for the first time pressed on the fact that ‘sovereignty’ is not absolute and it cannot be used as a ground to cause harm to other nations. This was made to take even more concrete shape by Stockholm and Rio Declarations, which specifically prohibits signatories from carrying out activities that may cause damage to states or areas outside their national jurisdiction.
The currently existing International Laws do not consider nature in isolation. They aim at creating norms for sustainable usage of such nature and its products. At this point, it is to be noted that both the Stockholm Conference (United Nations Conference on the Human Environment) and the Rio Conference (United Nations Conference on Environment and Development) was titled in such a manner that they remained reflective of the Human development aspects attached to them, and thus though not aimed at environmental conservation, do aim at ensuring sustainable use of nature by Human Beings.
The Chicago Convention 1944 is the basis for the creation of the International Civil Aviation Organization (ICAO) and Air Laws and is ratified by practically all the members of the UN including China. This has provisions, under Article 14 to make it a responsibility of member states to prevent spread of communicable diseases by means of air navigation. China as a member has also defeated the object and purpose of the WHO Constitution; which, if equated with the objective of the WHO, would be “the attainment by all peoples of the highest possible level of health.” Finally, a State could consider relying on the obligation under general international law not to defeat the object and purpose of a treaty as per article 18 of the Vienna Convention on the Law of Treaties, 1969, which can be seen to be clearly violated by China.
Thus, in order to affix the liability of China under International Law, the legal framework governing Trans-boundary environmental damage can be utilized together witch the cause of violation of treaty-based regulations by China, since, the spread of a contagious infection clearly demonstrates that there was a breach in observing due diligence obligations while undertaking commercial activities in the wet markets, which adversely impacted an important human right, namely, enjoyment of the safe and healthy environment. Also, it can be pressed as to how obligations under International Treaties have been most vehemently been ignored by China, and how this should be checked to prevent it acting as a precedent to future actions or in-actions.
CONCLUSION: UNDERSTANDING THE COMPLEXITIES AND WAY FORWARD
Talking about Indian scenario and the crashing market, government should implement ‘Minimum Income Guarantee’ scheme like Nyay Yojna. The National Emergency provisions deal only with war-like situations and courts have put a stop on their wider interpretations, they need to be amended to be applicable during such epidemics, though with some restrictions. The daily wage earners have lost their source of income, and as they form a major consumer base, they need to be bestowed with direct transfer benefits to keep the pulse of the market running. Like Canada, funds shall be given to small scale industries which are non-self-sustainable and have been affected due to lockdown. Also, steps shall be taken to introduce measures so as to normalize supply chain even during lockdown.
What has happened cannot be reversed, but this pandemic can indeed be used as a foundation to lay future legislations, statutes, and protocols. The current situation is grim and the only potential way to deal with it would be to come up with policies to tackle the same, while also not subjugating the issue of taking action on China. This isn’t the first time that China has grossly violated protocols and the world has suffered. Way back in 2002, when the SARS outbreak was recorded China was undoubtedly held liable for violating protocols, it’s high time that steps should be taken to prevent any further lapse of duty from any member state’s side, which can only be ensured once China is penalized for its deeds. The international community needs to understand that such steps are not just need of the hour, but also a prospective relief measure for any future situations. Therefore, we should come up with sustainable laws and obligations that shall not lose their importance in the future and can act as ‘buoys’ to prevent the human race from sinking in crisis.
It’s time to move on, you can’t rearrange it.
You’ve paid your price and it’s time to proceed,
No matter what your vice, unsteady as it seems.
Author(s) Name: Mohd. Rameez Raza (Faculty of Law, Integral University)