Resolving the WHO’s Constitutional Muddle in Holding China Liable for Covid-19

WHO | World Health Organization

by Anirudh Tyagi    2 March 2021

There has been a substantial demand in first-world countries to account for China’s liability for the Covid-19 pandemic. Many reports published in the U.S. and most recently in Australia have concluded that had China been more vigilant, the fatal consequences could have been mitigated. The U.S senate had vowed early this year to hold China legally accountable for the virus’s disastrous spread. The U.S. 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 U.S. 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 U.S. allies in the Asia-pacific, to forge a legal battle against the Chinese government. As the U.S. Senate and general public look firm in their belief of Chinese machinations, the new Biden administration also does not look to ease the U.S. stand on China. The public perception is a reflection of the stringent U.S. 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 with “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. China denied any such concealment.

The dispute on facts is almost impossible to resolve, and therefore the author would be leapfrogging into the legal possibilities of having international litigation on the subject of Covid-19. Therefore, the major question this article addresses is that is-Can China is held accountable for its alleged misdeeds in containing the source of the virus and failing to inform the world about its incipient in the International Court of Justice?

The WHO Constitution and the Jurisdiction of the ICJ

Article 56 of the IHR, 2005 allows signatories to settle any dispute on regulations through negotiation and mediation. If a mutual agreement could not be reached, the dispute could be put behind the WHO’s Director-General. The director-general shall make every effort to solve it. Even if the contention persists, the matter could be placed before the Permanent Court of Arbitration. Participation in Arbitration is, however, voluntary, and no country can be forced to do it. Therefore, the IHR does not place any jurisdiction with the ICJ, and hence now we switch to examine the contours in the WHO Constitution.

The WHO constitution is a legally binding document. Article 75 of the constitution addresses the jurisdictional conundrum. It says that:

“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, the article does not give any voluntary discretion to any party. If such a suit gets instituted by one country, the other country must litigate.

Problems in Framing a Charge under Article 75

The ICJ has held that Article 75 should not be “normalized” to institute any litigation. The ICJ, in a case concerning Armed Activities on the Territory of the Congo, 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 adjudged by the court itself. It is a type of extraordinary jurisdiction to which ICJ palpably does not want a mammoth of litigation. The second challenge the U.S 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 don’t generally call for constitutional interpretation.

As a general rule, the violation of the constitution concerns the interpretation of the constitution. Instead of the IHR, had China violated the WHO constitution, clear litigation could be made possible. But in a wholesome interpretation of the constitution, several provisions could be clubbed to frame an “implicit” violation of the constitution itself. In other words, framing a charge by a combination of few articles could do the thing for the U.S. For instance, article 36 requires the member states to respect the WHO authorities and their international character and must not try to influence them in any way. Article 63 also requires the member states to communicate to the WHO the state’s health statistics promptly.

While framing a charge by combining the above-mentioned articles seems plausible, it shall still be depending on the interpretation of the facts by the court. 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 legally not binding.

But the same may be taken to clear the blur on interpretations. This means that while the advisory opinion shall not be binding, it will help interpret the vague articles. However, the ICJ noted in Nuclear Weapons Advisory Opinion that the WHO cannot seek opinions on something that does not come under its scope of functioning. If it does so, the ICJ reserves the right to reject the request.

The Liability of China as Damages 

Would China be forced to pay damages if the alleged machinations in the virus spread are proven? The answer is No. 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 punitive damages for negligence in containing a disease.  In such a case, therefore, the ICJ may resort to customary international law. According to the International Law Commission commentary’s 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 compensate the international community fully. Though the ICJ has cited the articles under the draft in many instances, the commentary is still a non-ratified draft and doesn’t constitute legal obligations.

Conclusion 

There are rampant conundrums both on establishing china liable for Covid and the jurisdictional questions for the ICJ. While ICJ is efficient to allow proceedings over violations of the WHO constitution by categorizing the Chinese’s actions 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. Meaning thereby that the judicial provisions should be mentioned in the primary piece- the IHR- and it should not abandon the resolution measures after negotiations. It should not always depend on the constitution to solve the ambiguity, and if that were the case, the connection between IHR and Article 75 should be clearly established.

Moreover, Article 75 is an extraordinary clause, and therefore matters of “specific concern” should be taken. The ICJ’s Acquiesce on a mechanism to define a matter of “specific concern” is confusing and problematic. It should clear whether a dispute must follow an advisory opinion on each matter that pertains to the constitutional interpretation in light of the extra-constitutional violations. Or does the extra-constitutional violation is completely divorced from the constitutional interpretations?

There is no provision mandating China to pay reparations, and therefore a suit even if instituted wouldn’t do any good. Further, the United State’s withdrawal has made matters even more complicated. . The constitution allows only the member states to institute proceedings. However, the withdrawal of the U.S. would be effective from July 2021, and thus the U.S. 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.

There are many unprecedented intricacies in this whole discussion, which require both political and legal solutions. If such conundrums persist in law, they create a blatant blot on the international legal system’s efficiency, which still is highly esteemed by the nations. Its inefficiencies must be resolved to address the challenges of the present and the future.

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