Scholars argued that China's actions in connection with
COVID-19 (and the novel SARS-CoV-2 coronavirus), especially with the
responsibilities of timing and information communication set out in Articles 6
and 7, violated the International Health Regulations (see, for example, here
and here).
If China had fulfilled these commitments, today's case of
COVID-19 would possibly be exponentially less. This leads another scholar to
declare, "China can and must be sued for the massive losses it has caused
to the world, and to alert China of the arrival of the lawyers. Nevertheless,
all these authors all share one thing: they do not recognize a legal precedent
to hold China responsible for these infringements by a foreign court or
tribunal.
In compliance with Article 56 of the International Health
Legislation, at least two researchers have pointed out a conflict resolution
mechanism (see here and here), but that mechanism does so only if China accepts
that it is of course, very improbable.
Legal History
However, there is an authority overlooked: Article 75 of the
Constitution of the WHO. Article 75 provides: any issues or disputes pertaining
to or not addressed in talks or the health assembly on the interpretation or
implementation of this Constitution, shall be referred to the ICC...
In fact, the Court itself accepted that the Court's
authority (Armed Practices, Jurisprudence and Admissibility), Decision,
paragraphs of Article 75 of the WHO Constitution. [10]. Moreover, if the Court
viewed Article 75 as Article 22 of the CERD (Ukraine v. Russia, preliminary
objections, decision, para 113), then a State does not proceed to the World
Health Assembly until the State meets the negotiating requirements so that it
may sue China before the Court.
The harder question is how does a State frame its argument
about Chinese actions as an interpreter or application of the WHO Constitution?
It does not seem that the WHO Constitution includes significant
responsibilities under the international health law. Rather the key consideration
is as the name implies, the creation of a legislative system, which discusses
concerns such as membership and institutional structure.
A fourth law that China may have infringed on is Article 37
which sets out in its relevant parts: each member of the Organisation...
commits itself to respect, and not attempting to control, the WHO]
director-general and WHO] staff, solely in their foreign character.
Here it is clearly important to note that States are still
seeking through letters, meetings, and the like to manipulate members of
intergovernmental organizations. Thus any intention to manipulate would not be
a breach of Article 37. It would not be credible. However, it may be claimed
that measures to manipulate a breach of other international law clauses such as
the International Health Legislation by themselves would constitute an
unconstitutional influence for the purposes of Article 37.
Finally, it would be possible for a State to consider
depending on the duty under the general international law not to defeat the aim
and intent of a Treaty (see Article 18 of the VCLT), arguing that China defeat
the purpose of the WHO Constitution that would if equated to the WHO goal, be
to ensure the highest possible standard of health for all citizens (WHO
Constitution, art. 1). This argument may theoretically contain all the above
claims, and those related to the blocking of COVID-19 meetings at the United
Nations Security Council. It must be reminded now that the Court claimed that a
competence provision such as Article 75 of the Constitution on the WHO could
not protect a claim under general international law based on this duty
(Military and Paramilitary Activities, Merits, Judgment, para. 271).
But one could attempt to challenge, by recalling that
Article 75 does not only grant authority over any disagreement but also over
any issue pertaining to the meaning or operation of the WHO Constitution, the continued validity of this 34-year old dicta.
Conclusion
Again my views on the merits of these arguments have not
been conclusive. If there was merit, a state willing to prosecute China before
the International Court of Justice would also have to be found, something that,
of course, is not a simple feat. But even though the legal issue fails, it
could also lead to major political wins by trying an argument in public fora
such as the International Court of Justice.
It is not every day that foreign law abuses are reportedly
blamed for the deaths of so many civilians in so many countries. So it would
definitely be if there were any cases where justice needs to be served.
