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Can China be sued over COVID-19 in The International Court of Justice?

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Manjunath Kakkalameli
Author is Cyber Law Expert, Columnist, Public Speaker, Practicing advocate at Bombay High Court. Aslo President - BJP Legal Cell, Solapur, State Spokesman for नरेंद्रमोदी विचार मंच, has been attended many Talks on News Channels & Aakashawani etc.

As the novel CORONA virus incubated in Wuhan from Mid- December to the Mid- January the Chinese state made evidently international misrepresentation to its people and to the world about concerned out break hence The Republic of China led entire mankind to the unprecedented biological calamity. Which has been witnessing the mass death across the world and still no remedy, medicine confirmed to be   invented to prevent or to cure out of deadly COVID-19. In such a situation, entire mankind is criticizing about the gross negligence and irresponsibility and wrongful act of The Republic of China.

Taking into account, the international treaties, conventions on human rights. Undoubtedly, China has violated Human Rights by violating international health measures.

China is signatory of Human Right Convention & permanent member of UNSC. Since a responsible country, China must have informed the WHO about pandemic but rather inform or alerting the world, China has not only misrepresented the facts and figures but also misguide the WHO on Novel CORONA Virus. This is not the first time; China is repeatedly committing the same act. The world has still not forgotten the SARC.

International Health Regulations

As one of 194 members to the legally binding 2005, International Health Regulations, China was duty bond to rapidly gathering of information and contributing it to the member countries.

As per Art. 06 of the International Health Regulations, it is mandatory for the state to provide expedited, timely, accurate and sufficient information to WHO about potential health emergencies. However, the China has repeatedly failed to inform to the WHO, which led to massive transmission of Corona virus across the globe.

As per Art. 10, WHO also has a mandate to seek verification from the state with respect to unofficial reports of pathogenic microorganisms and states are bound to provide timely transparent information to the WHO within 24 hours and participate in collaborative assessment of the risk presented. Yet china has rejected repeated offers of epidemic investigation assistance from WHO without any explanation.

COVID19- China’s legal responsibility

From the above act, one can say with conviction that, one cannot expect china to fulfill its obligation or to take required steps.

As per Art. 01 of International Law commission 2001, all states are responsible for their intentional wrongful conducts. However, for this wrongful conduct, if responsibilities to be checked, the responsibility flows from Wuhan Lab/Authorities to President Xi himself. 

Wrongful acts are those which constitute breach of international obligation and As per Art. 11 A Breach is an act which is not in accordance with obligations. China’s failure to share information transparently in accordance with international norms is breach in its legal obligation. China did not only intentionally create a global pandemic, but its negligence is certainly the cause of it.

Many Scholars have claimed that China’s conduct with respect to COVID-19 (and the novel coronavirus SARS-CoV-2) violated the International Health Regulations, in particular the obligations of timely notification and information-sharing in Articles 6 and 7. Had China complied with these obligations, there would arguably be exponentially fewer cases of COVID-19 today. This has led many scholars to state that China “can and should be sued for the enormous damages they caused to the world”, Nevertheless to say, but main constrain to sue against China is the Jurisdiction. all of these scholars have one thing in common: they fail to identify a jurisdictional basis for an international court or tribunal to hold China responsible for these violations. At least two scholars have pointed to the dispute settlement mechanism in Article 56 of the International Health Regulations , but this art. Provides exclusively on arbitrational jurisdiction & this is unlikely, because, this jurisdiction can only be operated only if China consents & it is totally, unlike.  

A Jurisdictional Basis

The most not talk about article is Article 75 of the WHO Constitution. Article 75 provides: “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 ….” Indeed, the Court itself has acknowledged that “Article 75 of the WHO Constitution provides for the Court’s jurisdiction” (Armed Activities (New Application), Jurisdiction and Admissibility, Judgment, para. 99). As per this verdict the ICJ having jurisdiction to try & entertain the matter against China. 

Question of Law

How can a State frame its complaint over China’s conduct as one concerning the interpretation or application of the WHO Constitution? The WHO Constitution does not appear to contain substantive obligations of international health law. Rather, as its name suggests, it is primarily concerned with establishing a constitutional framework, dealing with matters such as membership and institutional structure. All this said, there appear to be a few claims concerning the interpretation or application of the WHO Constitution, presented below, that a State could potentially lodge against China. 

Whether claim can be made Under the WHO Constitution

First of all , taking shelter of Art. 75 of the WHO Constitution – a State could try to claim violations of the International Health Regulations through Articles 21 and 22 of the WHO Constitution. Article 21 allows the World Health Assembly the authority to adopt regulations like the International Health Regulations & any other there in by time to time, and Article 22 provides in relevant part that “regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given” by the healkth assembly. One could thus firmly argue that, in light of Articles 21 and 22, China’s alleged violations of the International Health Regulations concern the interpretation or application of the WHO Constitution. 

As discussed above how China has violated Art. 06,10,11 of the International Health Regulations, A State could also try to claim that China has violated Article 64 of the WHO Constitution in accordance with International Health Regulations , which provides: “Each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly.” The Health Assembly has, expressly under Article 64, determined that statistics must be prepared in accordance with Nomenclature Regulations, 

Finally, a State could consider relying on the obligation under general international law not to defeat the object and purpose of a treaty claiming that China has defeated the object and purpose of the WHO Constitution, which, if equated with the objective of the WHO, would be “the attainment by all peoples of the highest possible level of health” (WHO Constitution, art. 1). Such a claim could potentially encompass all the aforementioned allegations, as well as others, such as those concerning restricting the China on COVID-19 at the UN Security Council. Now in the view of Military & Paramilitary activities  Merits, Judgment ,Para- 271, it should be kept in mind  that the Court has stated that a jurisdictional clause like Article 75 of the WHO Constitution would not be able to cover a claim based on this obligation under general international law But one can have chance to try to challenge the continuing validity of this 34-year-old dicta, or attempt to distinguish it 

While Concluding – 

In my entire discussion, I have tried to explore, all the parameters, jurisdictional provisions to bring the wrongful acts of China and how a state can sue against the China before International Court of Justice. However, all these remedies are up to the will of a state to sue china before International Court of Justice. However, it is not an easy task but not impossible indeed. 

The author Adv. K.Manjunath, is Cyber Law Expert, practicing advocate at Bombay High Court & a columnist.

Can be reached at adv.manjunathk@gmail.com  

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Manjunath Kakkalameli
Author is Cyber Law Expert, Columnist, Public Speaker, Practicing advocate at Bombay High Court. Aslo President - BJP Legal Cell, Solapur, State Spokesman for नरेंद्रमोदी विचार मंच, has been attended many Talks on News Channels & Aakashawani etc.

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