Public International Law : Analysis In The Context Of Calls To Sue China Over COVID-19 Pandemic

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations; and
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

International Obligations:

As per the ICJ statute, an international convention is the leading source of international law followed by the other three sources mentioned under article 38 of the ICJ statute. Although the outbreak of the pandemic is unprecedented and there is no law that deals specifically with a like situation, the International Health Regulations, 2005 ("IHR"), Constitution of the World Health Organization and the Vienna Convention on Law of Treaties ("VCLT") would have a bearing on any such attempts to sue. Any attempt to sue China in claims related to COVID-19 would have to make out a case under the following laws:

a) Vienna Convention on Law of Treaties ("VCLT")^[2]

The VCLT is an international agreement that governs the treaties between the states. The obligation of each state is enumerated under article 26 "Pacta Sund Servanda" that under international law, every state has to perform its obligations under any treaty in good faith.

b) IHR regulations^[3]

The IHR is an agreement between 196 countries including all WHO Member States to work together for global health security and is framed under the WHO Constitution. Through IHR, member countries have agreed to build their capacities to detect, assess and report public health events that concern the global community. WHO plays the coordinating role in IHR and, together with its partners, helps countries to build capacities.^[4] Relevant articles under IHR are:

"Article 5: Each State Party shall develop, strengthen and maintain, as soon as possible but no later than five years from the entry into force of these Regulations for that State Party, the capacity to detect, assess, notify and report events in accordance with these Regulations…"

Article 6: "…Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory in accordance with the decision instrument, as well as any health measure implemented in response to those events…"

Article 7: Information-sharing during unexpected or unusual public health events. 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.

Article 56 of the IHR sets out the procedure to be invoked by a member state if it wishes to set the adjudicatory mechanism in process.

c) WHO constitution

As under article 18 of the Vienna Convention on law of treaties, a State shall not defeat the objects and purpose of a treaty. The objective of the WHO is "the attainment by all peoples of the highest possible level of health."^[5]

Under Article 63, each Member is bound to truthfully disclose statistics, reports, etc of any major health emergency or pandemic. Further, under article 64, each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly.

Broad contours of a Claim

Any claim based on the above would have to conclusively make out a case that China has breached its international obligations by (i) maintaining secrecy in relation to the Covid virus, (ii) it is a man-made virus – created in Chinese labs and negligently allowed to escape, (iii) the sale and consumption of wildlife prevalent in China is responsible for it, (iv) international teams have not been permitted to visit the virus epicenter and study the same, (v) the Chinese Government has suppressed information in relation to the start of the pandemic and created a worldwide health emergency, (vi) China has withheld actual number of Covid patients and deaths, (vii) by re-opening its "wet markets" – which are conjectured to be responsible for spread of this virus, China has once again exposed the world to this pandemic, (viii) previous strains of virus such as SARS, avian influenza etc have all originated from China, (ix) China has acted to the detriment of the global community and caused loss of human lives, suffering to billions and major trade and economic loss, (x) China by its collective acts has violated and undermined the WHO Constitution, etc. These allegations would have to be backed up by data and documentation as is necessary in all adjudicatory processes.

Consequences of Breach & Restitution

The UN General Assembly took note of the Articles on Responsibility of State for Internationally wrongful Act, 2001^[6] ("ARSIWA") drafted by the International Law Commission and also acknowledged in its 71^st session^[7] that a growing number of decisions of international courts, tribunals and other bodies refer to ARSIWA. ARSIWA under Article 2 defines an internationally wrongful act of a State when conduct consisting of an action or omission (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State.^[8]

On commission of an internationally wrongful act, ARSIWA requires (i) the State has to cease the wrongful conduct^[9] and (ii) make reparation^[10]. Under ARSIWA, article 31(Reparation), the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

Under ARSIWA, the notion of "injury" includes any damage caused by that act. In particular, in accordance with Article 2, "injury" includes any material or moral damage caused thereby. This definition is inclusive, covering both material and moral damage in its broadest sense, and as limitative, excluding merely abstract concerns or general interests of a State which is individually unaffected by the breach.^[11] "Material" damage here refers to damage to property or other interests of the State and its nationals which is assessable in financial terms.

Jurisdiction and Forum

While the IHR provides for an arbitration mechanism it involves the consent of all parties concerned. However, China is unlikely to give any such consent. The other forum is the ICJ. The ICJ exercises compulsory, special agreement, advisory and treaty-based jurisdiction depending on the facts of each case. At present China has not accepted the compulsory jurisdiction of the ICJ. China by agreement with other States may also submit a dispute to the ICJ by special agreement, accepting the ICJ's jurisdiction only with regard to the specific dispute at issue. This too seems unlikely on the part of China. The ICJ's jurisdiction in relation to areas of international law governed by a treaty that specifically provides that disputes will be submitted to the ICJ for resolution is untrammeled.

Since invoking jurisdiction under a treaty seems like the only viable option in the present scenario, Article 75 of the Constitution of WHO becomes relevant: "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".

The ICJ itself has acknowledged in Democratic Republic of the Congo v. Rwanda, 2002 that "Article 75 of the WHO Constitution provides for the Court's jurisdiction". However, the ICJ has stated that a jurisdictional clause like Article 75 of the WHO Constitution would not cover a claim based on obligation under general international law. In its Judgment of 3 February 2006, the ICJ ruled that it did not have jurisdiction to entertain the Application filed by the Democratic Republic of Congo. It found that the international instruments invoked by the Democratic Republic of Congo could not be relied on, either because Rwanda (1) was not a party to them (as in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) or (2) had made reservations to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination), or because (3) other preconditions for the seisin of the ICJ had not been satisfied (as in the case of the Convention on the Elimination of All Forms of Discrimination against Women, the Constitution of the WHO, the Constitution of UNESCO and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation). However, it observed that :

"that there is a fundamental distinction between the acceptance by States of the Court's jurisdiction and the conformity of their acts with international law. … whether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law"^[12].

Perhaps the ICJ may consider revisiting the aforesaid view in the light of subsequent global developments and entertain a claim based on the above against China. It may be noted that countries such as the United States of America have existing treaties with China which provide for compulsory jurisdiction of the ICJ. Apart from these there are a few multilateral treaties which provide for compulsory jurisdiction of the ICJ^[13]. There could therefore be individual claims by nation States against China based on their inter se treaty obligations provided the claims fall in the remit of those individual treaties.

Another rarely used jurisdiction which the ICJ possesses is advisory jurisdiction under which it gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or organizations authorized to make such a request. This jurisdiction can be used by members of the United Nations collectively and would entitle nation States to take counter measures against China based on the outcome of such advisory opinion.

An example of its use was on 8 October 2008 (resolution 63/3) when the General Assembly of the United Nations decided to ask the Court to render an advisory opinion on the following question : "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ?" Thirty-six Member States of the United Nations filed written statements and the authors of the unilateral declaration of independence filed a written contribution. Fourteen States submitted written comments on the written statements of States and on the written contribution of the authors of the declaration of independence. Twenty-eight States and the authors of the unilateral declaration of independence participated in the oral proceedings, which took place from 1 to 11 December 2009.

In its Advisory Opinion delivered on 22 July 2010, the ICJ concluded that "the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law". Before reaching this conclusion, the ICJ first addressed the question of whether it possessed jurisdiction to give the advisory opinion requested by the General Assembly. Having established that it did have jurisdiction to render the advisory opinion requested, the ICJ examined the question, raised by a number of participants, as to whether it should nevertheless decline to exercise that jurisdiction as a matter of discretion. It concluded that, in light of its jurisprudence, there were "no compelling reasons for it to decline to exercise its jurisdiction" in respect of the request^[14].

Enforcement:

United Nations is the world organization that binds and resolves matters concerning international relations between the States. Article 94 of the U.N. Charter provides that in case of failure or non fulfilment of the obligation under the judgment of the ICJ, any party may seek recourse in the UN Security Council and the Council will take necessary action to enforce the judgment. China is a permanent member of the UN Security Council, which enables China to invoke veto power. China has the power to block any action that the UN Security Council might take to give effect to an ICJ judgment. However, apart from the legal issues, a lot would depend on what nation states perceive to be in their strategic interests, political interest and economic compulsions while dealing with China – the world's second largest economy and a military powerhouse in its own right. As for the Chinese they would do well to remember the Chinese proverb "nothing is as heavy as a secret".

(Abhinav Mukerji, is an Advocate-on-Record at the Supreme Court of India, and Additional Advocate General, Supreme Court of India (State of Himachal Pradesh); Views are personal. The author may be reached at abhinavmukerji@gmail.com)