The deadly, novel coronavirus, also known as COVID-19, emanated from China in the last months of 2019, affecting almost every country of the world. Up to the point of writing this article, the number of cases caused by this global pandemic has surpassed 3 million. Owing to this disease, almost every nation has almost suffered human, economic and social damage.
International lawyers and scholars have also been alleging that China has violated the International Health Regulations 2005 adopted by the World Health Assembly.[1] Some contend that the first case of COVID-19 was diagnosed on 17 November, 2019[2] but the World Health Organization (WHO) was not apprised even till the 14th of January, 2020.[3] This situation gives rise to three possibilities:
- that cases were not detected at that time;
- cases were detected but COVID-19 had not been recognized as a new disease; or
- cases were detected and the disease had been recognized, but reporting had been suppressed. This misrepresentation of facts is being condemned by the international community.
Legally speaking, the notion of ‘state sovereign immunity’ prohibits countries from suing China in their national courts. Consequently, the only court that can be approached is the International Court of Justice (ICJ). Under the WHO Constitution, the World Health Assembly has been empowered to adopt regulations to prevent a disease from spreading internationally. The International Health Regulations enacted by the World Health Assembly in 2005 (IHR 2005)[5] is a useful document in this regard. It has been alleged that China has violated Articles 6 and 7 of the IHR 2005 and thus bears international responsibility.
According to Article 6(2) of the International Health Regulations 2005:
“Following a notification, a State Party shall continue to communicate to WHO timely, accurate and sufficiently detailed public health information available to it on the notified event, where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the potential public health emergency of international concern.”
Article 7 of the same Regulations states the following:
“If a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information. In such a case, the provisions of Article 6 shall apply in full.”
Under Article 6, the WHO is supposed to forward to the states any information received which is necessary to enable state parties to respond to public health risks.[6] Each state party is required to abstain from acts which defeat the treaty’s purpose.[7] The WHO’s objective is the attainment of the highest possible level of health by all peoples[8] and China is being criticized for acting inconsistently with these provisions and defeating the motto of WHO.
Article 56 of the Regulations provides mechanisms to resolve disputes by peaceful means, including through the use of good offices, mediation or conciliation, whenever there is a dispute between state parties concerning the interpretation or application of these Regulations. Since the parties’ consent would be required to enforce such measures, there is a slim chance that China would be willing to give consent.
Jurisdiction of ICJ
Jurisdiction is the sine qua non (essential condition) for the exercise of judicial powers. Where jurisdiction is lacking, a judicial body cannot exercise legally binding judicial powers over a subject. In the matter at hand, the contentious jurisdiction of the International Court of Justice can be invoked through Article 75 of the WHO Constitution which states the following:
“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.”
In the given scenario, at least three provisions of the WHO Constitution can be referred to the ICJ for interpretation. IHR Regulations 2005 were enacted pursuant to Article 21 and 22 of the WHO Constitution. The burden of proof is on the applicant state to satisfy the breach of these two Articles via the Regulations. The defendant state can counter the claim by arguing that the Regulations do not legally oblige the parties to adhere to them. Furthermore, Article 64 of the WHO Constitution requires that “each member shall provide statistical and epidemiological reports”. It could be argued that China did not furnish the reports accurately and in a timely manner. Hence, the suppression of reports could go against Article 64.
If any state brings a claim against China before the ICJ, which is not as easy as it sounds, the first and foremost question would be about the ICJ’s jurisdiction to hear such a claim. In the past, China has used the same argument to raise objections regarding the admissibility of cases and it can do so again.[9] If China does not consent to the jurisdiction of the Hague-based world court, then only non-binding advisory judgments[10] can be issued. Historically, the ICJ has announced declaratory judgments to assess the legality of Israel’s Wall of Separation[11] and the validity of Kosovo’s Declaration of Independence.[12]
China also has various defenses available under the law of state responsibility, including the plea of force majeure,[13] the state of necessity[14] and the doctrine of distress[15] as envisaged in ILC Articles on State Responsibility (2001).
Additionally, China is a member among the five permanent members of the United Nations Security Council and can use veto power. In Nicaragua v USA,[16] when ICJ’s verdict did not go in favour of USA, the USA blocked the enforcement of the judgment by using its veto power. Similarly, China can also resort to this special power.
Conclusion
It will be an uphill task to hold China liable for compensation under international law. Firstly, in case of IHR violations, it provides itself the mechanism of peaceful dispute resolution.[17] Keeping in mind the influence of China’s economy, litigation is unlikely to bring fruitful results. Secondly, if the matter is referred to the ICJ, the question of jurisdiction and the availability of defenses will not let China be defeated in court. However, a petition for ICJ’s advisory opinions could lead to political victories for other states.
References
[1] https://www.who.int/ihr/publications/9789241580496/en/
[2] https://www.scmp.com/news/china/society/article/3074991/coronavirus-chinas-first-confirmed-covid-19-case-traced-back
[3] https://twitter.com/WHO/status/1217043229427761152?s=20
[4] Article 21 and 22 of WHO Constitution 1946.
[5] https://www.who.int/ihr/publications/9789241580496/en/
[6] Article 11 of International Health Regulations 2005.
[7] Article 18 of VCLT 1969.
[8] Article 1 of WHO Constitution 1946.
[9] The South China Sea Arbitration, Philippine V/S China.
[10] Article 65 of ICJ Statute.
[11] https://www.icj-cij.org/en/case/131
[12] https://www.icj-cij.org/en/case/141
[13] See Article 23 of ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts
[14] See Article 25 of ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts
[15] See Article 24 of ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts
[16] Military and Paramilitary Activities in and against Nicaragua, Nicaragua v/s United States, merits, judgment, (1986) ICJ rep 14, icgj 112 (icj 1986)
[17] See, Article 56 of IHR 2005
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
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