Article 6 of the IHR makes it mandatory for every country to inform the WHO of ‘all events which may constitute a public health emergency of international concern’.
There has been a firm demand in first world countries to account liability on China for the COVID-19 pandemic. Many reports published in the US and most recently in Australia have concluded that if China had been more vigilant, the fatal consequences could have been mitigated. The US Senate vowed earlier this year to hold China legally accountable for the disastrous spread of the virus. The US had alleged that in not informing the world about the inception of a deadly disease, China had violated the World Health Organization’s (WHO) rules and protocols. Meanwhile, the US also left the WHO due to the latter’s alleged involvement in hiding China’s fallacies. The Trump administration then vowed, garnering tacit support from the US allies in the Asia-pacific, to forge a legal battle against the Chinese government. As the US Senate and general public look firm in their belief about Chinese machinations, the new Biden administration also does not look to ease the US stand on China. The public perception is a reflection of the stringent US policies on a recalcitrant China.
Every major allegation on China echoed violations of the International Health Regulations, 2005 (IHR). Article 6 of the IHR makes it mandatory for every country to inform the WHO of ‘all events which may constitute a public health emergency of international concern’. The country where the disease originates has to report to the WHO with ‘timely, accurate and sufficiently detailed public health information’. Article 7 provides that any country having ‘evidence’ of such an explosion of any unusual public health event on its territory must report to the WHO with all the public health information. However, China denied any such concealment which may lead to the invocation of this provision.
All these are disputed facts which are impossible to resolve and therefore the author would be leapfrogging into the legal possibilities of having international litigation on the subject of COVID-19. Thus, the major question this article addresses is – whether China can be held accountable for its alleged misdeeds in containing the source of the virus and failing to inform the world about its incipient before the International Court of Justice (ICJ)?
THE WHO AND THE ICJ
Article 56 of the IHR, 2005 allows signatories to settle any dispute arising from regulations through negotiation and mediation. If a mutual agreement could not be reached, the dispute could be placed before the Director-General of the WHO. The director-general shall make every effort to resolve it. If the contention persists, the matter could be placed before the Permanent Court of Arbitration. However, the participation in arbitration is voluntary and no country can be forced to participate. The IHR do not confer any jurisdiction on the ICJ. Thus, we now switch to examine the contours in the WHO Constitution.
The WHO constitution is a legally binding document. Article 75 of the WHO Constitution addresses the jurisdictional conundrum. It states:
‘Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.’
Therefore, the dispute ultimately could be posed before the ICJ. Before filing such a suit, an attempt of mutual negotiation by the Health Assembly is compulsory. As ICJ is the principal judicial organ of the United Nations, Article 75 does not give any voluntary discretion to any party. If such a suit gets instituted by one country, the other country must litigate.
PORBLEMS IN FRAMING CHARGES U/ART. 75
The ICJ has held that Article 75 should not be ‘normalized’ to institute any kind of litigation. The ICJ in Democratic Republic of Congo v. Uganda held that article 75 creates jurisdiction only for disputes that ‘specifically concern’ how countries interpret or apply the WHO Constitution. The statement implies that whether a dispute is of specific concern is to be adjudged by the Court itself. It is a type of an extraordinary jurisdiction to which ICJ palpably does not want a mammoth of litigation. The second challenge the US would face is establishing that a dispute under Rule 6 and 7 of the IHR can be decided under Article 75. Such an interpretation doesn’t have any precedent and the claims based on regulations do not generally call for constitutional interpretation.
As a general rule, the violation of the WHO Constitution concerns its interpretation. Had China violated the WHO Constitution instead of IHR, litigation would have been possible. But in a wholesome interpretation of the Constitution, several provisions could be clubbed to frame an ‘implicit’ violation of the Constitution itself. For instance, Article 36 requires the member states to respect the WHO authorities and its international character and must not try to influence them in any way. Article 63 also requires the member states to communicate promptly to the WHO the health statistics of a State.
Although clubbing of some articles signals towards a positive direction, institution of suit for any country in this situation will always be a fact-dependent issue. Moreover, taking the advisory opinion of the ICJ, something that WHO may seek any time, would also not be a plausible option as it is not legally binding. But an advisory opinion may be taken to clear the ambiguities on interpretations. It means that while the advisory opinion shall not be binding, it will help in the interpretation of the vague articles. However, the ICJ noted in Nuclear Weapons Advisory Opinion that the WHO cannot seek opinion on something that does not come under its scope of functioning and even if it does so, the ICJ reserves the right to reject the request.
IS CHINA LIABLE?
Would China be forced to pay damages if the alleged machinations regarding the spread of the virus are proven? The answer is no simpliciter. China will not be bound to pay the damages as such a provision is not present in the IHR. The WHO Constitution also does not provide any punitive damages for negligence in containing a disease. Therefore, in such a case, the ICJ may resort to customary IL. According to Article 31 of the International Law Commission Commentary on Draft Articles, there should be a causal link between a wrongful act and the injury caused. The wrongful act may pertain to the breach of international obligations. The draft seeks to oblige the erring country to fully compensate the international community.
There are rampant conundrums over the facts establishing China’s liability for the COVID-19 pandemic as well as the jurisdictional questions regarding the ICJ. While the ICJ is efficient to allow proceedings over violations of the WHO Constitution by categorizing the actions of the Chinese as violations of a combination of several articles, it is difficult to link the IHR violation with Article 75. As mutual negotiations must precede litigation claims under Article 75, the IHR should be clear on the judicial remedy after the failure of such mediation. Moreover, Article 75 is an extraordinary clause, and therefore, only matters of ‘specific concern’ should be taken up before it. The ICJ is silent on the question on whether extra-constitutional violations could be adjudged by it under the Constitution. The court has to resolve the issue of holding constitutional interpretive litigation in regard to violation of extra constitutional regulations. Moreover, it also does not specify the procedure to define a subject as a matter of “specific concern”.
There is no provision mandating China to pay reparations and therefore a suit even if instituted would not do any good. Further, the United States’ withdrawal has made matters even more complicated. The constitution allows only the member states to institute proceedings. Since the withdrawal of the US from the WHO would be effective from July 2021, the US is currently capable of instituting proceedings against China. The ICJ decides its jurisdiction on the filing of a case and the later withdrawal of any party from any organization would not affect the proceedings.
Cover Image Credits: Soumia G.