Julist Guest Columnist Atul Alexander, Assistant Professor of Law at West Bengal National University of Juridical Sciences, discusses the implications of COVID-19 for the International Court of Justice …
The COVID-19 outbreak has shocked and demolished the international community. World Health Organization (WHO) declared pandemic outbreak and some scholars argue that China violated International Health Regulations (IHR) by not preventing the spread of deadly COVID-19. That IHR aims to assist the international community in preventing and responding to acute public health crises with the potential to cross borders and threaten people around the world. The IHR works through an emergency committee that provides technical advice to the Director General of WHO in the context of “public health emergencies of international concern,” which is defined as “extraordinary events that are determined as public health risks to others.” Declare through the spread of international diseases and require potentially coordinated international responses. “The view of the world community is that China has not complied with the IHR, especially scholars arguing that China violates Article 7 of the IHR on information sharing and Article 3 which categorically states that IHR principles must be respected with dignity, humanity. fundamental rights and freedoms. Therefore, one could argue that China violates the human rights of its citizens by not respecting IHR principles. The mechanism based on Article 56 of the IHR regulates arbitration as a way to settle disputes with the approval of the disputed state, in this case obtaining approval from China is very unlikely; in addition, one of the prerequisites for Article 56 to be operated is a ‘dispute.’
WHO and COVID-19
States can request Articles 21 and 22 of WHO Constitution as the basis for establishing the jurisdiction of the International Court of Justice (ICJ). Article 21 gives the World Health Assembly the power to form regulations such as IHR. I am of the view that the next assembly and regulations are next exercise WHO Constitution; hence, the subject matter is related to the interpretation of the WHO Constitution. A country is likely to be able to make many claims against China for violating the WHO Constitution; firstly under Chapter XIV of the constitution, each party is obliged to submit public health statistics reports. Furthermore, Article 6 (2) of the IHR countries
a State Party must continue to communicate with WHO in a timely, accurate and reasonably detailed public health information available to it at the notified event, if possible including case definitions, laboratory results, sources and types of risk, number of cases and deaths, conditions affecting the spread of diseases and health actions taken; and report, if necessary, the difficulties encountered and the support needed in responding to potential public health emergencies of international concern.
Likewise, Article 7 regulates the distribution of information. Therefore, any country that is willing to drag China to the ICJ can claim violations of Articles 6 and 7 of the IHR.
In addition, one of the important rules for interpreting agreements is the principle of good faith as codified in Article 31 of the Agreement Vienna Convention on Agreement Law. In connection with the implementation of the treaty mandate, China blatantly violates the principle of good faith. Apart from Articles 6 and 7 of the violated IHR, States can also forward claims for violation of Article 37 by not respecting WHO by providing inaccurate data about COVID-19. Apart from the potential various claims against China, someone has ensured the jurisdiction of these claims.
ICJ jurisdiction vis-à-vis COVID-19
The basis for ICJ jurisdiction is Article 75 of the WHO Constitution, which states “Any questions or disputes regarding the interpretation or application of this Constitution that are not settled through negotiations or by the Health Assembly will be referred to the International Court of Justice. Justice is in accordance with the Statute of the Court unless the relevant parties agree on other means of settlement. “
Countries that intend to bring China to the ICJ must meet the negotiating criteria to request ICJ jurisdiction. In Case Jadhav, when interpreting the optional protocol for the Vienna convention on consular relations, the ICJ noted that another avenue for arbitration was not a prerequisite for approaching world courts. Drawing from Jadhav Reazoning, the ICJ will free the negotiation criteria in Article 75 of the WHO Constitution. The fundamental problem that the state will face when attracting China to the ICJ is the formation of disputes, based on Article 36 (2) of the ICJ Statute. The function of the ICJ is only to decide on international legal disputes submitted by the state, popularly called ‘Non-petita rules’, and in accordance with Article 36, paragraph 2 of ICJ Statute, the jurisdiction of the court extends to all “legal disputes” that might arise between the states parties to the Statute after making a declaration based on that provision. Disputes between parties are thus a condition of the court’s jurisdiction, and the burden of proving existence the dispute falls on the applicant. Therefore, every country that intends to file a lawsuit against China must establish a dispute. The ICJ has applied strict interpretations when determining disputes. In The Marshall Islands Case, The ICJ rejects the Marshall Islands argument by nine to seven votes to this right question. Only if the ‘dispute’ problem is resolved, ICJ can proceed according to the case.
Advisory Opinion – Steps Forward
Barriers to jurisdiction in the ICJ regarding controversial cases can prompt WHO to seek advisory opinions. Article 76 of the WHO Constitution states that
After 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 to give an opinion on legal issues arising in the competence of the Organization.
The only criterion that must be met for soliciting an advisor’s opinion is that the request must be a legal question within the scope of the requesting organ’s activities. In 1993, WHO asked the ICJ to give an opinion as an advisor about the use of nuclear weapons by the State in war or other armed conflicts for violations of their obligations under international law including the WHO Constitution. The ICJ concludes that WHO’s responsibilities are always limited to the “public health” field and therefore cannot violate the responsibilities of other parts of the UN system. Because the current COVID-19 pandemic is mainly under the ambition of “public health,” WHO is competent to solicit advisory opinions because it is included in its mandate. The advantage of asking for an advisor’s opinion multiplied. First, to date the ICJ has provided 27 advisory opinions. While advisory opinions are not binding on the state, they provide a way for further action. In an instant case, it could help the General Assembly to issue a resolution condemning China’s passivity in controlling the spread of a pandemic. Second, in the opinion of a landmark advisor Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territories, ICJ observed that victims could be given reparations. Drawing the same analogy, China can be instructed by the ICJ to compensate for losses. Third, the advisory opinion does not require approval from the state; this can offer space for judicial activism and go beyond the passivity associated with controversial cases. Fourth, in the opinion of advisers each country is given the opportunity to submit evidence and relevant facts. The court can decide on the basis of all available evidence that is available so as to ensure the propriety of the evidence.
The current crisis can lure countries to approach the ICJ against China; however, the probability of its success is very slim because questions about disputes, as mentioned above, will be difficult to build. Second, assuming that the ICJ decides on services, the enforcement that occurs in the Security Council, China as a permanent member of the UN can veto the enforcement of the ruling as previously witnessed on the ICJ. Therefore, it would be a safe bet to place the ball in the court of the General Assembly for further action through the opinion of an advisor from the ICJ. Furthermore, by providing advisory opinions on such major issues, the ICJ can set precedent rights by regulating state behavior and thereby proactively participate in useful UN functions.
Atul Alexander is assistant professor of law at the National University of Jurisdiction of West Bengal, one of the leading law schools in India. He is also a member of the Asian International Law Association and is currently pursuing a Ph.D. in international law.
Suggested quote: Atul Alexander, Measuring Jurisdiction of International Court Counsel in Dealing with COVID-19, JURIST – Academic Commentary, 6 April 2020, https://www.jurist.org/commentary/2020/04/atul-alexander -icj-covid /
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