By Mohit Khubchandani – International Disputes Resolution Attorney, Research Fellow, United Nations International Law Commission. Masters of Law (LL.M.), Stanford Law School.
The bone of contention
The entire world is wrecked with the exponential spread of the novel coronavirus, COVID-19; so much so that the World Health Organisation (WHO) on March 11th, 2020 declared it as a pandemic. Legal scholars have been formulating claims of damages based on negligence, due-diligence and concealment against the People’s Republic of China (China) for not containing COVID-19 timely. A 20 Trillion US Dollar suit has already been filed in a US District Court. A considerable body of research has already been and is being written on it.
However, there is another imminent threat looming around us which has yet not been discussed from a legal lens. If reports are to be believed, China has re-opened its ‘wet-markets’ which sell bats, pangolins, dogs et al. as of at least 1st April 2020. This decision comes after China has been able to flatten the curve of COVID-19 cases in Wuhan, its epicentre. The animal source of COVID-19 has not been identified yet, but the original host is thought to be bats, which are a host to wide range of zoonotic viruses, including Ebola and Rabies. Albeit, the ‘precautionary principle’ (Principle 15, Rio Declaration) under International Environmental Law states that “…lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” In situations of gravity and urgency like the present one, the International Court of Justice (ICJ) under the powers vested with it under Article 41 of its Statute can order provisional measures of protection so as to avoid an irreparable harm. The ICJ may at the least issue an advisory opinion in accordance with Chapter IV, Articles 65-68 of the Statute of the ICJ read with Part IV, Articles 102-109 of the Rules of the Court, if such an issue is referred to it by international organisations. In this backdrop, this piece examines issues of jurisdiction and merits based on public international law to make a case.
Violations of International Health Law by China
Upon examining the broader picture, the claims of China’s purported violations are under:
(1) Article 6 of WHO’s International Health Regulations 2005 (IHR) by not notifying the WHO of a public health emergency: an argument to propound that China concealed the gravity of the situation with the WHO when the first set of COVID-19 cases emerged in Wuhan in January, 2020.
(2) Article 7 of the regulations for untimely ‘information-sharing during unexpected or unusual public health events’ read with Article 64 for not providing ‘timely epidemiological reports’ in a manner prescribed by the WHO: an argument to elicit that even after disclosing the existence of COVID-19, China did not periodically inform the WHO about the alarming level of its spread domestically.
(3) 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’: an argument that WHO’s Director General Dr. Tedros Adhanom Ghebreyesus’ initial remarks on China, and the delay in announcing a Public Health Emergency of International Concern, may show some complicity and influence of China upon the world body.
(4) The overarching defences under Article 18 of the Vienna Convention on Law of Treaties, 1969 (VCLT) for not adhering to the ‘object and purpose’ of the WHO constitution, read with Article 31 of the VCLT of not acting in ‘good faith’: an argument to question China’s abuse of its veto power to block a United Nations Security Council (UNSC) meeting to discuss COVID-19, which co-incidentally happened to be during the month of its presidency at the council in the pretext of encouraging ‘votes by writing’.
Jurisdiction of the World Health Assembly or the ICJ?
These four allegations form an in exhaustive list amongst others, which can be pursued in several ways, i.e. by mediation or conciliation initiated under Article 56 of the International Health Regulations. Parties may also upon mutual consent, go for arbitration, which China is likely to object. Given the said assumption, and China’s veto power at the UNSC, the only lawful course available for countries is under Article 75 of the WHO constitution, which provides for approaching the World Health Assembly (WHA), and if these issues are not resolved there, then to the ICJ. The ICJ has acknowledged this position in the Armed Activities on the Territory of the Congo case (New Application: 2002). Alternatively, if the Court were to give a broader interpretation to Article 75 of the WHO constitution, similar to what it did to the dispute resolution mechanism enshrined under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 in the recent Ukraine v. Russia case of 2019, then the stage of resolution of disputes at the WHA can be dispensed and the parties may directly approach the ICJ with mutual consent to adopt ‘immediate and effective measures.
However, even if there was a way to take all the said issues to the ICJ under its compulsory jurisdiction power under Article 36(2) of the Statute of the Court, there would be two obstacles. One procedural, and the other, practical. Firstly, since China has never accepted the compulsary jurisdiction of the ICJ, and it is not likely to consent to adjudication of such disputes. Secondly, most of the issues above could be rendered unripe at the stage of admissibility by the Court since scholars might argue that they do not yet conclusively establish a ‘causal link’ between China’s action and the spread of COVID-19.
There is though one ace issue which could be still be adjudicated by the ICJ with or without sufficient causation, and merits immediate response.
Setting Up Wet Markets is in Violation of General Principles and Customary International Law
China might have blocked a deliberation to discuss the question of COVID-19 at the UNSC, but the United Nations General Assembly (UNGA) can still refer the question of setting up wet markets to the ICJ like it did in the Construction of Wall advisory opinion issued in 2004, since the Court found that it was an issue of concern to the United Nations at large and not just Israel and Palestine, as it concerned maintenance of international peace and security.
Now, if we consider this issue on its merits, as stated before, as per the law of transboundary harm, several international conventions stipulate that ‘the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between these substances, on the one hand and the potential transboundary impact’. This view has also been endorsed by Judge Weeramantry of the Court as one gaining increasing support as a part of international environmental law in the Nuclear Tests case, 1995. Therefore, if China knowingly harbours such a risk, then such acts are attributable to it, as the ICJ in the Corfu Channel case, 1949 held that no state may “knowingly allow its territory to be used for acts contrary to the rights of other states.”
In addition, it could be argued that China has been in violation of the general principles of negligence and due diligence in its action and owes a duty of care to the world. It has thus committed an internationally wrongful act.
While an advisory opinion might not be binding upon China, it might be just the political catalyst that might achieve the purpose of getting China to close the markets by succumbing to International legal outrage, or at the least get them on the table to discuss their actions at international forums like the UNSC or by accepting the compulsory jurisdiction of the ICJ in this case, where they might ultimately lose and environmental compensation be awarded to countries like it was in the recent Case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).At the very least, it will give an impetus to this uphill task as was in the 2016 case of Marshall Islands v. UK, Pakistan, US and India where despite Marshall Islands losing the case, scholars noted, ‘of course, this will stand as a declaratory statement of international law without any enforcement mechanisms, but can ostensibly serve to strengthen the global taboo against nuclear weapons use.’ This might be a David v. Goliath fight, but it is worth a shot as we have an unprecedented threat posed on humanity, and it is now or never.