Atul Alexander, Assistant Professor of Law, and Anushna Mishra, Student, West Bengal National University of Juridical Sciences, Kolkata
The principles of international responsibility can be used to hold the states and international organisations responsible for internationally wrongful acts. This analysis concerns the omission of the World Health Organisation (WHO) to divulge timely information on COVID-19 would qualify as an internationally wrongful act, thereby attracting Article 4 of the Articles on Responsibility of International Organisations (ARIO), adopted by the International Law Commission in 2011. Even during the 2009 swine flu (H1N1/09) outbreak, the response of the WHO was deemed to be insufficient and was lacking in transparency. It becomes crucial to establish whether the obligations are in connection with the conduct of aninternational organization as codified under Article 1(2) of ARIO .
WHO and its Discontents
Allegations against the WHO corresponded to its delayed cognisance about raising a timely alarm for the outbreak of coronavirus. Critics raise concerns that the WHO has been “too trusting” of the Chinese Government which was primarily responsible for concealing the outbreak in Wuhan—thereby holding Dr Tedros Adhanom Ghebreyesus delaying the declaration of the global health emergency. Such a delay added to the severity of the situation as the Chinese health officials described it asand stated that there was an absence of any evidence that it could be transmitted by human contact on a larger scale. The same claim was also endorsed by the WHO as late as mid-January. Comparing the approach to a similar situation during the 2002-2004 SARS epidemic (SARS-CoV-1), the WHO had played an more severe attitude by publicly criticising the Chinese Government for not maintaining transparency. In this context, it is essential to understand the consequences of the delay caused as it took away the vital time from the medical sector of various countries for the influx of a tremendously increasing number of patients. Some of the non sanitary consequences include economic loss especially for hospitality sector, micro and small scale industries. The pandemic affects in particular vulnerable categories, e.g. migrants. How the situation was handled initially gave a free pathway to the virus to have a tenacious control—this “China-centric” approach of the WHO has been widely criticised.
Another aspect pertinent to the allegations against the WHO is the reasoning provided by the US as a means to cover its shortcomings. The response of the country to the virus was significantly hindered by the underinvestment in the infrastructure of public health and other government regulations. The commercial orientation of the health sector on the supply-side and lack of health insurance coverage on the demand-side further exacerbate the problems of the under-provision of public services, such as health surveillance and preventive care. For the past 25 years, the Chinese Government has kept economic development at the top of the policy agenda at the expense of public health, especially in terms of access to health care for the 800 million people living in rural areas. Further, President Donald Trump’s announcements to halt the US funding for the WHO will have an adverse impact on the ability of the WHO to contribute to various national and international measures for saving lives. The rationale given by Mr Trump was based on two significant factors. Firstly, the delay in declaring the relevant information. Secondly, the disagreement of WHO with the restrictions placed by the US from February 2 on any travel from China. However, the halting of funds is branded as a “vindictive exercise of presidential authority.” While there lies a certain responsibility on the WHO, a thorough evaluation of the contribution of other nations also becomes extremely important. In this global emergency, an evaluation of responsibility becomes highly integral in understanding the true function of the international bodies and thereby improving their responses to future crises.
International Law and Responsibility of International Organisation vis-à-vis immunity
A breach of International Law may involve an obligation of reparation both for the states and international organisations (IOs). The turn of 21st century has witnessed the fostering of responsibility and accountability of IOS, a gleaming departure from the previously held conception of responsibility as a mere attribution of a state. The present pandemic concerns the international community, hence the responsibility of WHO transcends the domestic law framework; therefore it could be pointed that, states aggrieved by the pandemic has the right to sue the WHO at the domestic level, based on an accepted principle in international law, i.e., ‘Nationality Principle.’
Immunities of International Organisations got a footprint since the establishment of United Nations Organisation (UN), pursuant to Article 105(3) of the UN Charter and the 1946 Convention on Privileges and Immunities of the U.N, As WHO is a specialised agency of UN, the immunities conferred on the UN stretches to the WHO. Still, the international organisations would enjoy only the extent of immunity necessary for them to discharge their functions, as the scope of this immunities covers their official acts. Article 2 of the WHO Constitution enlists twenty functions of WHO, one of the critical functions being to “stimulate and advance work to eradicate epidemic, endemic and other diseases.” Further Article 66 of WHO constitution clearly states that the immunity of WHO is merely to the extent of the fulfilment of the function of the WHO, therefore the omission of WHO to act in desperate time proactively is deliration of its function thus immunity requires revaluation. If an act of WHO were not within the ambit of the functions and purposes of the WHO, it would be deemed ultra vires, and proceedings could be institutied against the erring international organisation in the domestic courts. As the U.S is the most significant contributor to the WHO, its discontent towards WHO for its lackadaisical attitude in tackling the pandemic is understandable, however, going by the recent developments, it can be deciphered that Trump’s intention to disown WHO albeit an act of desperation is well-founded.
Since the codification of the Articles on the responsibility of International Organisation of 2011,(ARIO) States have dragged IOs under their domestic courts for the violations of its mandate. Despite the draft articles, IOs have argued immunity to overcome the responsibility tag. The matter was variously evaluated in different jurisdictions. For instance, in cases like Beer and Regan v Germany and Waite and Keneddy v Germany, the European Court of Human Rights appears to have applied a proportionality test on a case by case basis, thus seeking a balance between responsibility and immunity. Concerning the case at stake which concerns the WHO, the responsibility of the organisation depends on an omission, i.e. the breach of Article 4 of ARIO. Consequently, the aggrieved States are entitled to claim reparations under Article 31, read with Article 36 of the ARIO, and further claim compensations from WHO for its failure to act. However, the question of instituting a proceeding in the ICJ is out of sight as the jurisdiction of ICJ applies merely to States and not to IOs; hence, national courts seem the most appropriate forum for states to try to establish an international responsibility of the WHO.