• Gurdeep Singh

Taking China to the ICJ: Possible Issues for Adjudication

Updated: Apr 14

The present article would solely focus on a potential action for state responsibility under the WHO Constitution and the International Health Regulations (IHR) Guidelines as to the liability of China and any potential claims which could be brought before the International Court of Justice (ICJ) and its jurisdiction thereto.

Source: https://theprint.in/opinion/can-china-be-brought-before-an-international-court-over-covid-pandemic-yes/398218/


Introduction


Following the public information, the initial case for novel coronavirus was founds in Wuhan in November, although the precise date has been disputed. The virus subsequently spread swiftly across the world and the World Health Organisation (WHO) declared it to be a pandemic and Public Health Emergency of International Concern (PHIEC) on 11th March 2020.


Some critics have argued the approach adopted by the Chinese authorities to be lackadaisical and not up to the mark, and violating its international. Accordingly, the authorities had been negligent to inform the public and global community, that could potentially have been helpful in counter the present global health crisis still subsisting. While there is still scientific uncertainty as to the beginning of the virus, it is an undeniable fact that preventive measures taken at the right time could have countered the issue of global spread in the world at large.


The present article would solely focus on a potential action for state responsibility under the WHO Constitution and the International Health Regulations (IHR) Guidelines as to the liability of China and any potential claims which could be brought before the International Court of Justice (ICJ) and its jurisdiction thereto.


Pending Legal Proceedings Against China


● In March 2020, a complaint was submitted in Northern District of Texas, alleging the coronavirus to be a biological weapon.[1]

● A similar class action was filed in Southern District of Florida, alleging negligence and potential coverup and making liable China for Ultrahazardous activities and nuisance.[2]

● In April 2020, a complaint was filed by the Advocate General in Missouri District Court for Billions of dollars in damages alleging medical and economic loss.

● However, under the 1976 Foreign Sovereign Immunities act, China has state immunity. Hence a bill proposed to amend the act to provide potential civil actions against a foreign state, but the same hasn’t been authorised by the senate. By way of a letter, a similar request by the All India Bar Assn. (AIBA) was made to the PM to bring an ordinance to Section 86 of the Code of Civil Procedure, 1908 (CPC) so that the Chinese authorities can be sued for exemplary damages.[3]

● Recently the International Council of Jurists and International Bar Association (IBA), have applied to the UNHRC to look into the alleged violations and seek compensation from china for causing serious impediment to the international community.


The Principles of State Responsibility and International Obligations: Attributing Liability


State responsibility can be invoked for wrongful act or a breach of treaty obligations. In the instant case the unregulated wet markets for exotic wildlife trade caused the present outbreak. There are three elements that make up the doctrine of international state responsibility, namely: a) an internationally wrongful act; b) attributability; and c) injury to other state.[4]


The ILC’s, Responsibility of states for Internationally Wrongful Acts reflects the fundamental principles of customary law. According to Article 1, ‘states are responsible for their international wrongful acts’. That would also involve a risk of causing ‘significant transboundary harm through its physical consequences’. Under Article 2 there is a twin condition to define wrongful acts. Firstly, the alleged act should be attributable to that state and secondly it should constitute a breach of an international obligation.


The Government’s failure to share information constitutes an extended breach of its legal obligations. The effect of virus on a human, social, cultural and economic relationship is not quantifiable. Consequently, under Article 31 should bear reparations and legal responsibility caused by their international wrongful act. Injured states according to Article 34 are entitled to full reparations in an adequate form. Apart from reparations countermeasures including economic and diplomatic sanctions can imposed, because it is highly unlikely that China would subject itself to the jurisdiction of ICJ. For instance, in the territorial dispute against the Republic of Philippines, China did not arbitrate the dispute and subsequently rejected the ruling and its enforcement.


In Corfu Channel case, 1949 it was observed that no state may “knowingly allow its territory to be used for acts contrary to the rights of other states.” Due diligence has its primary impact on the responsibility of States for private actors and was highlighted in the arbitral award in the Trail Smelter Arbitration (US v. Canada).Similarly, in Nicaragua v. United States although the court found the actions of US to be in breach of international customary law, but it was only a symbolic exercise as being the permanent member the decision was blocked at the security council and never implemented.


Although, according to some commentators Chinese Authorities can claim a defence for Force Majeure, but given that China has been the epicentre of Swine Flu, and other events causing previous pandemics, as a consequence it cannot possibly be argued that the Chinese government was not able to foresee the possibility of the present crisis or it was beyond the state’s control. Under international customary law, a duty is cast upon every state to act in a diligent and reasonable manner. In the instant case, it was not until late January that it was told to the public that the virus was contagious simply showing that the authorities concealed material facts, regarding the ground situation and the traits of the virus, which if would have been made available to the international community, it could potentially have led to a lesser grave situation.


Many doctors who acted as whistle blowers were muzzled, arrested and ignored at the initial stages. There were large gatherings in July on the Lunar New Year Spring Festival which is considered to be the world’s biggest human migration[5] that accounted for amount 3 million trips this year.



The WHO Constitution and the IHR Guidelines


China can be held responsible under several articles under the WHO constitution. IHR Guidelines were incorporated specifically to curb diseases like small pox, SARS, plague, yellow fever, typhus, set forth in the second annex. The IHR (2005) are legally binding on virtually all (i.e. 194) States worldwide, and impact governmental functions and responsibilities across many ministries, sectors and governmental levels.


Are These Guidelines Binding on State Parties?


The provisions generally fall into one of three categories:


(1) legally binding obligations (using the word "shall"),

(2) authoritative advice agreed by States Parties concerning appropriate actions under the IHR (using the word "should"), and

(3) provisions indicating discretion or authorization of States Parties to take certain steps under the Regulations (using the word "may").

As a General rule guidelines are not binding. But, the ultimate determination of the legal nature requires consideration of the entire text of these provisions, other content of the IHR (2005), the context and other relevant factors. The IHR Guidelines were revised in 2005 and incorporated consonance with Articles 20 and 21 of the WHO Constitution which give wide powers to adopt regulations as it may deem fit.

● Under Article 64 of the WHO constitution each member has an obligation, “to provide statistical and epidemiological reports.”

● Under Article 63 there has been a duty cast on every member to communicate promptly without any delay, official reports and statistics published by the state.

● Under Article 6 of the IHR, which are binding on the respondent a state should provide expediated, timely accurate and sufficiently detailed information to WHO about a potential public health emergency. According to Article 6,

“each State party will notify the WHO, by the most efficient means of communication available, within 24 hours from the evaluation of public health information, on all events in its territory that may constitute a public health emergency of international importance.”

Under Article 10 of IHR with respect to unofficial reports on pathogenic microorganisms.

Under Article 7 of the IHR titled ‘Information-sharing during unexpected or unusual public health events’ states,

“If a State Party has evidence of an unexpected or unusual public health event within its territory, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information.”

Article 37 of the WHO Constitution by not “respecting the exclusive international character of the Director-General and the staff and not to seek to influence them”. China had systematically, intentionally, and unlawfully withheld from the international community to fight the spread of the new viral disease. Based on a lack of material evidence the Director general was influenced to believe that the present situation could not be considered a PHEIC. This not only lead to a delay in announcing PHEIC based on uncorroborated and misleading facts, but clearly shows a complacent conduct by Chinese authorities.

● To Sum, preamble of the WHO constitution states that, “enjoyment of the highest possible standard of health is a fundamental right.” In the instant case China hampered that goal and as a consequence many humans being have suffered loss.

Jurisdiction For these Breaches: Advisory Jurisdiction

The legal basis for the jurisdiction of ICJ is an alleged violation of any treaty. It isn’t forceable that China would accept the jurisdiction as compulsory ipso facto or enter into a special agreement in that regard. Article 75 of the Constitution provides,

“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 ….”


The court has recognized the application and the basis of Article 75 in the Case Democratic Republic of Congo v. Rwanda. The court also observed that the present article has been widely worded. In the words of ICJ, the court observed,

“The Court further notes that Article 75 of the WHO Constitution provides for the Court’s jurisdiction, under the conditions laid down therein, over “any question or dispute concerning the interpretation or application” of that instrument.”


The present article has been widely worded and it given unbridled powers to the ICJ. In Ukraine vs. Russian Federation, the court interpreted it widely and the instant case could be followed for the purpose of jurisdiction.


Alternatively, the court can also have advisory jurisdiction as the present issue pertains to an important issue. Article 76 of the WHO should be given a wider interpretation. According to the article


“Upon authorization by the General Assembly of the United Nations or upon authorization in accordance with any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization.”

IHR Guidelines cast a duty to resolve dispute though negotiation or peaceful means. But, Article 75 could be applied in the present case as Article 56 is not contrary to it, and both articles should be read harmoniously. Nevertheless, alternatively, in its section 4 of IHR, specifies that:

“Nothing in these Regulations shall impair the rights of States Parties under any international agreement to which they may be parties to resort to the dispute settlement mechanisms of other intergovernmental organizations or established under any international agreement.”

Therefore, ICJ is the most competent forum to deal with all the claims of the present matter. Further, the court has powers to rule on its own jurisdiction if an issue arises as to the it.


Conclusion


State responsibility entails culpability and possible reparations to the injured state, in case fault can be attributed to the state for its international wrongful act. Similarly, states are liable for significant transboundary harm, in cases of breach of treaty obligations and customary international law in general. Reparations is an indispensable component of a state’s wrongful act or a violation thereto, and if not possible, the injured state should be eligible for an adequate compensation.


In the instant case, it can be argued although the beginning of the pandemic was because of natural reasons and not caused by china, the spread could have been foreseeable and the public should have been notified instantly. By not notifying the WHO and the international community as a whole, China should bear culpability for unjustifiably concealing information which proved to be instrumental to stop the possible spread of the pandemic through the globe. One other factor which should be borne in mind while adjudication is the lack of efficiency in implementing protective measures for each state. But the initial response was singly delayed by China’s laid-back approach and an attempt to fudge critical data and figures, for instance the information of deaths and the spread of virus.



Gurdeep Singh is a student at Rajiv Gandhi National University of Law, Punjab. .