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International Law & Ethics during Corona: The role of UN & International Law in containing Pandemics

Mukul Sudhir Thombare, Student, Savitribai Phule Pune University

Introduction

The sudden and unexpected emergence of the pandemic and the consecutive measures taken by the world to stop it is the topic of debate of now and post-pandemic world. In this article, I make an attempt to try and summarize the legal implications of the common enemy in the violation of China’s international obligations placed by International law, the international health regulations, the remedies before injured nations, and the collective role of the UN Agencies and International law, along with the help of domestic law to contain it.

The idea of a common enemy, identifying it, and being afraid of it, unites us; reminds Umberto Eco through the years; a reason why most of the world leaders are coming out saying we are in a war against an unseen enemy. This is one of the crucial reasons why we must adopt drastic measures to contain the unseen. Although, in other news, disputes are revolving around politics. That is why when the President of USA, uses the term “Chinese Virus”, the debaters around the world get rattled; or when China says a US Military officer was responsible for the origin of the virus; or when the Italians claim that it all started due to the visits from Chinese delegations; or a country got most affected due to “hug-a-Chinese” campaign; or when all the countries blame China for not having immediately informed to the world the situation which was getting out of hand; or when the WHO did a terrible job in downplaying and underestimating the whole pandemic situation. In all these cases, it ultimately boils down to a justification, a story, that will give the measures a fundament and make them understandable. This opens discussions to whether China can be held responsible under general international law vis-à-vis under the rules of state responsibility; obligations China has towards the world in compensating the affected countries; the health regulations; the WHO constitution and potential claims under it, and the role of India in filing the complaint in UNHRC.


Massive defence against the pandemic

The decision to isolate the people, to quarantine them, and to make them follow the social distancing norm is mostly applied in all countries because those who initially opposed ended up adopting the same measures. The model called conjectural action is the analytical method since there is insufficient information. Decisions are based on and in favour of life as it is of higher value. Even though the bigger problem we are facing right now is of asymmetric information, much is known about the cost of supporting the measure, but nothing about the cost that is being avoided. Therefore, it is relevant to consider what would happen if nothing was done in order to sustain citizens’ trust. If the precautionary measures are regulated, it will establish that under serious and imminent threat, lack of certainty should not be used as a reason to postpone the adoption of effective measures.

Sustaining the social isolation of around almost 3 billion people at a time becomes problematic since the implications are diversified and huge. Even the economy tells us that we are on the verge of a great global recession that will affect all sectors.


Jurisdictional Challenges and potential claims under the WHO Constitution Article 75 of the WHO Constitution provides for the settlement of disputes by the International Court of Justice.[1] Any question or dispute relating to interpretation or application of the constitution shall be referred to the ICJ if negotiations could not have settled the same. The Court itself has acknowledged that “Article 75 of the WHO Constitution provides for Court’s jurisdiction” in Democratic Republic of Congo v Rwanda.[2] Moreover, the disputants are also free to choose any mode of settlement of disputes instead of moving the ICJ. Very recently, ICJ in the case of Ukraine v Russian Federation interpreted article 22 of CERD- Convention on Elimination of all kinds of Racial Discrimination, that it gives alternative conditions to the jurisdiction of ICJ.[3] A disputant State could claim the violation of International Health Regulations through Article 21 and 22 of the WHO Constitution. Article 21 grants the World Health Assembly the authority to adopt regulations like International Health Regulations.[4] 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. One could thus argue that in light of articles 21 and 22, China’s alleged violations of International Health regulations concern the interpretation or the application of the WHO Constitution by the International Court of Justice.

Another option is to claim the violation of Article 63 which provides for the prompt communication by each member to the Organization about the laws, regulations, official reports and statistics pertaining to health which have been published in the state concerned.[5] The claim would not concern the communication of the laws or regulations, but rather the official reports and the statistics. China allegedly has withheld early reports of medical staff infections, leading the WHO to believe that human-to-human transmission was not possible. However, an issue would arise that these official reports and statistics would have to have been published in China.


State Responsibility and Accountability

Customary international law on state responsibility holds that a state violating international law has an obligation to make full reparation for the injury caused by the internationally wrongful act. This customary rule has played no discernable role in disease outbreaks over the long international health cooperation even when states have argued that countries violated applicable treaties. It appears prima facie the conducts of China have been wrongful and are in violation of International Law. The Draft Articles on State Responsibility of States for Internationally Wrongful Acts, 2001 (Draft Articles) was adopted by International Law Commission at its 53rd session in 2001 and was submitted to the United Nations General Assembly.[6] Draft Articles are not legally binding documents. However, they hold authoritative values. While interpreting international law, the ICJ often takes the help of these Draft Articles.

Article 1 of Draft Articles says that every internationally wrongful act of a State entails the international responsibility of that state. Article 2 states the wrongful acts are those actions or omissions which breach international obligation and can be attributable to the state under international law. The conduct is attributable when a state organ commits it through the legislature, executive or judiciary. Responsibility emanates from the local Wuhan authorities to the Chinese Central Government, which are all State organs. China’s alleged intentional failure to pass on information expeditiously to the WHO constitutes a breach of international obligations under Article 12 of the Draft Articles. By continuing the breach of the obligation, China violates even Article 14 of the Draft Articles. China is under obligation to make full reparation for both material and moral injury caused by its wrongful acts under Article 31.

The ICJ in the famous Corfu Channel case[7] held that no state might knowingly allow its territory to be used for the acts contrary to the rights of the other states. The reparations China will have to bear will be in the form of compensations, restitutions, satisfactions and even in the form of assurances of non-repetition of the wrongful act.


International Health Regulations

The International Health Regulations must be applicable all over the world for the protection of humankind from the spread and infection of a pandemic. This is one of the main principles incorporated in the IHR. The World Health Organization shall also be guided by the principle of universal application of the regulations mentioned in IHR. The treaty of IHR is itself established to combat the spread of infectious diseases. It applies to any illnesses that present or could present significant harm to humans or any public health emergency of international concern. The latter refers to an extraordinary event that may pose a public health risk to other states through the international spread of disease, and that may potentially require a coordinated international response.

Under Article 5, a state is responsible for developing, strengthening, and maintaining public health infrastructure, which will help in detecting, monitoring, reporting, ad notifying the events of global health crises.[8]

Article 6 talks about Public Health Emergency of International Concern (PHEIC). It talks about a duty that a member state, here China, has towards WHO to inform about the viral outbreak within 24 hours of determining its nature.[9] Article 7 of International Health Regulations also requires China after notification, to continue to provide timely, accurate, and sufficiently detailed and available public health information about unexpected or unusual incidents irrespective of origin.

Researchers have refuted the theory of producing nCovid-19 in a laboratory in Wuhan. “By comparing the available genome sequence data for known coronavirus strains, we can firmly determine that SARS-CoV-2 originated through a natural process.”[10]

On December 31st, the Wuhan Municipal Health Commission wrongly claimed that there is no human to human transmission of nCovid19. They described it as seasonal flu which is preventable and controllable. Till February 14th, China waited to disclose that around 1700 healthcare workers have been found positive for the coronavirus. Apparently and evidently, the Chinese government has knowingly and intentionally suppressed the crucial public health information for almost two months from the WHO.

A claim for damages requires a causal link between the alleged breach of an international obligation and the damage suffered by the injured states. Under the sufficiently direct and certain causal nexus test established by the ICJ in the Bosnian Genocide Case,[11] an injured state must establish from the case as a whole and with a sufficient degree of certainty that the pandemic would have been averted had China compiled with its IHR obligations.

Article 56 of IHR requires an injured state first to explore good offices, mediation, or conciliation to settle any dispute involving treaty interpretation and application and failing that the parties may refer the dispute to WHO Director-General.


Conclusion

History teaches us that there were times when humanity faced great challenges and evolved into medium-term solutions. In some cases, fear was the basis of authoritarianism which ended up aggravating the tragedies. However, there were also some cases in which the people who had to decide did so through scientific, legitimate, democratic rationality. Those who dare to do the herculean task of dragging the State to ICJ will be doing favourable good to not only their own state but to the world as a whole. Highly unlikely of China submitting before an international forum. Nevertheless, it is not impossible. What makes this a herculean and painstaking task is the power, and military and diplomatic influence the perpetrator state has. It becomes even more seemingly impossible when we remember China has a permanent seat at the United Nations Council and can invoke its veto power to block the events when it thinks their interests are at stake. A less vigorous way to hold China liable is to resort to ICJ’s advisory jurisdiction. For this, the consent of the disputant parties is not necessary. The problem with the advisory opinions of ICJ, though, is that it lacks a binding authority. Thus, it leaves the enforcement of a decision on the disputant states and the good faith of the UN General Assembly. However, we must not forget that this fight will not be an easy one.

However, prioritizing life, health, protecting the vulnerable is also of utmost importance and should not be sidelined while running behind legal remedies for seeking reparations from the State. This is a great challenge that we are currently facing. It is difficult to comply with isolation, it is a herculean task as well, which involves sacrifices, but we must do it as well as worrying about respecting the law. It is in times like these we prove to what extent we are willing to defend those principles and values.

[1] Constitution of the World Health Organization 1946, art 75. [2] [2006] ICJ General List No 126. [3] [2017] ICJ General List No 166. [4] Constitution of the World Health Organization 1946, art 21. [5] Constitution of the World Health Organization, art 63. [6] International Law Commission, Draft Articles on Responsibility of States (Law Com No 53, 2001). [7] United Kingdom of Great Britain and North Ireland v Albania [1949] ICJ Rep 237. [8] International Health Regulations 2005, art 5. [9] International Health Regulations 2005, art 6. [10] KG Andersen, ‘Proximal Origin of SARS-CoV-2’ (2020) National Library of Medicine https://pubmed.ncbi.nlm.nih.gov/32284615/ accessed 10 May 2020. [11] Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ GL No 91.

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