The COVID-19 outbreak has shocked and de-globalized the international community. The World Health Organization (WHO) has declared the outbreak a pandemic and several scholars have argued that China breached International Health Regulations (IHR) by not preventing the spread of the deadly COVID-19. The IHR aim to aid the international community in preventing and responding to acute public health crises with the potential to cross borders and threaten people worldwide. The IHR work through an emergency committee that provides technical advice to the WHO Director-General in the context of a “public health emergency of international concern,” which is defined as “an extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to require a coordinated international response potentially.” The views of the world community are that China has not complied with the IHR, in particular scholars maintain that China violated Article 7 of the IHR concerning information-sharing and Article 3 which categorically states that the IHR principles shall be respected with full dignity, human rights and fundamental freedoms. This being the case, one could argue that China breached the human rights of its citizens by not respecting the IHR principles. The mechanism under Article 56 of the IHR provides for arbitration as a means of settlement of a dispute with the consent of the disputed state, in this instance obtaining the consent of China is highly unlikely; moreover, one of the prerequisites for Article 56 to be put into operation is the existence of a ‘dispute.’
The WHO and COVID-19
States could invoke Article 21 and 22 of the WHO Constitution as a basis for establishing the jurisdiction of the International Court of Justice (ICJ). Article 21 provides the World Health Assembly the power to establish regulations like the IHR. I am of the view that the assembly and the subsequent regulations constitute the subsequent practice of the WHO Constitution; hence, the subject matter relates to the interpretation of the WHO Constitution. A State could in all probability bring multiple claims against China for violation of the WHO Constitution; firstly under Chapter XIV of the constitution, each state party is under an obligation to submit a statistical public health report. Further, Article 6(2) of the IHR states
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.
Similarly, Article 7 provides for information sharing. Therefore, any state willing to drag China to the ICJ could claim the breach of Article 6 and 7 of the IHR.
Moreover, one of the salient rules of treaty interpretation is the principle of good faith as codified under Article 31 of the Vienna Convention on the Law of Treaties. With respect to the performance of the treaty mandate, China was in blatant violation of the good faith principle. Apart from Article 6 and 7 of the IHR being violated, States could also forward claims for the breach of Article 37 by not respecting the WHO by providing inaccurate data on COVID-19. Notwithstanding the potential for multiple claims against China, one has ascertained the jurisdictional compatibility of these claims.
The ICJ’s Jurisdiction vis-à-vis COVID-19
The basis for the jurisdiction of the ICJ is Article 75 of the WHO Constitution, which states “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 state intending to drag China to the ICJ must satisfy the criterion of negotiation to invoke the jurisdiction of the ICJ. In the Jadhav Case, when interpreting the optional protocol to the Vienna convention on consular relation, the ICJ noted that recourse to arbitration is not a prerequisite to approaching the world court. Drawing from the Jadhav reazoning, the ICJ would exempt the negotiation criterion in Article 75 of WHO Constitution. The fundamental problem that states would encounter while pulling China to the ICJ is the establishment of a dispute, under Article 36(2) of the ICJ Statute. The function of the ICJ is only to decide international law disputes that states submit, popularly called ‘non ultra petita rule’, and according to Article 36, paragraph 2 of the ICJ Statute, the court’s jurisdiction extends to all “legal disputes” that may arise between states party to the Statute having made a declaration under that provision. The existence of a dispute between parties is thus a condition of the court’s jurisdiction, and the burden of proving the existence of the dispute falls on the applicant. Therefore, any state contemplating bringing a claim against China has to establish the existence of a dispute. The ICJ has applied stringent interpretation when determining the existence of a dispute. In the Marshall Islands case, the ICJ rejected the argument of the Marshall Islands by a vote of nine to seven on this precise question. Only if the issue of ‘dispute’ is settled can the ICJ proceed on the merits of the case.
Advisory Opinion – The Way Forward
The jurisdictional hurdles in the ICJ concerning the contentious cases could prompt the WHO to request an advisory opinion. Article 76 of the WHO Constitution provides that
Upon authorization by the General Assembly of the United Nations or upon authorization by 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.
The sole criterion to be fulfilled for requesting an advisory opinion is that the request should be a legal question within the scope of the activities of the requesting organ. In 1993, the WHO requested the ICJ to provide an advisory opinion on the use of nuclear weapons by a State in war or other armed conflicts for breach of its obligations under international law including the WHO Constitution. The ICJ concluded that the responsibilities of the WHO was necessarily restricted to the sphere of “public health” and therefore could not encroach on the responsibilities of other parts of the United Nations system. Since the present COVID-19 pandemic primarily falls under the ambit of “public health,” the WHO is competent to request an advisory opinion as it falls within its mandate. The advantages of requesting an advisory opinion are manifold. Firstly, to date the ICJ has rendered 27 advisory opinions. While advisory opinions are not binding on state, they lay down a path for the subsequent course of action. In the instant case, it could assist the General Assembly to pass resolutions condemning the passivity of China in controlling the spread of the pandemic. Secondly, in the landmark advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ observed that victims can be provided reparations. Drawing the same analogy, China can be instructed by the ICJ to compensate for losses. Thirdly, the advisory opinion does not require the consent of states; this can offer scope for judicial activism and transcend the passivity that is associated with contentious cases. Fourthly, in an advisory opinion every state is provided with an opportunity to submit relevant evidence and facts. The court gets to decide on the basis of all the available evidence at its disposal thus ensuring evidentiary propriety.
Conclusion
The present crisis can allure states to approach the ICJ against China; however, the probability of success is very slim because the question of dispute, as pointed out above, would be difficult to establish. Secondly, assuming that the ICJ decides on the merits, the enforcement happens at the Security Council, China as a permanent member of the UN could veto the enforcement of the judgment as previously witnessed in the ICJ. Therefore, it will be a safe bet to place the ball in the court of the General Assembly for further course of action through an advisory opinion from the ICJ. Further, by rendering an advisory opinion on such a massive issue the ICJ could set a right precedent by regulating the conduct of states and thus participate proactively in the fruitful functioning of the United Nations.
Atul Alexander is an assistant professor of law at West Bengal National University of Juridical Sciences, one of the leading law schools in India. He is also a member of the Asian Society of International Law and is presently pursuing his Ph.D. in international law.
Suggested citation: Atul Alexander, Gauging the Advisory Jurisdiction of the International Court of Justice in the Face of COVID-19, JURIST – Academic Commentary, April 6, 2020, https://www.jurist.org/commentary/2020/04/atul-alexander-icj-covid/
This article was prepared for publication by Brittney Zeller, Deputy Managing Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
