There is still scientific uncertainty about several aspects of the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2). However, it is uncontroversial that the original epidemic quickly turned into a pandemic, that the World Health Organization declared in March 2020, due to the virus capacity of easy and fast transmission from person to person.
Obligations under the WHO Constitution and Regulations
First, every State has the obligation to inform the WHO of anomalous situations that have occurred in their territories related to human health. This duty is expressed in Article 7th of Regulations, whose writing – in the best style hard law – it is direct and imperative, in the following terms:
“If a State Party has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information. In such a case, the provisions of Article 6 shall apply in full”.
Referred Article 6 gives a period of 24 hours for this communication to be carried out. So the question is whether China has omitted to warn the WHO by the most efficient means of communication available and within 24 hours of the assessment of public health information about all events in its territory that could constitute a public health emergency of international importance.
Press reports say it took China more days than expected to disclose the information. The Chinese government’s omissive conduct, therefore, would be in violation of its international obligation arising from the WHO Regulations..
However, only the WHO Constitution – not the International Health Regulations – provides for recourse to the International Court of Justice. In fact, Article 75 of the WHO Constitution states:
“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 in conformity with the Statute of the Court unless the parties concerned agree on another mode of settlement”.
The International Court of Justice (ICJ) has already recognized the validity of Article 75 of the WHO Constitution in Armed Activities on the Territory of the Congo. In paragraph 99, the ICJ stated as follows:
“The Court observes that the DRC has been a party to the WHO Constitution since 24 February 1961 and Rwanda since 7 November 1962 and that both are thus members of that Organization. The Court further notes that Article 75 of the WHO Constitution provides for the Court’s jurisdiction, under the conditions laid down therein, over ‘any question or dispute concerning the interpretation or application’ of that instrument”.
This provision requires that such an issue or divergence concerns the interpretation or application of the WHO Constitution. However, the whole difficulty lies in finding in the text of the WHO Constitution itself objective obligations to States to safeguard health in cases of transnational pandemics, such as those contained in the International Health Regulations. All of this leads to uncertainties about whether a state can sue China in the International Court of Justice for the Covid-19 pandemic.
There are several other ways to link Chinese responsibility to the WHO Constitution. First, article 21 expressly gives the Health Assembly authority to adopt regulations sanitary and quarantine measures and other procedures designed to prevent the international spread of diseases.
In addition, the obligation to comply with the regulations of the World Health Assembly also entails States, under the terms of Article 62 of the WHO Constitution, the duty to “report annually on the action taken with respect to recommendations made to it by the Organization and with respect to conventions, agreements and regulations”. In fact, it would be pointless for the standard to require States to submit annual reports if it were not to exercise its role as an international body for monitoring global health issues.
Finally, it can be suggested that the hypothesis of China’s use of the “force majeure” institute as an exclusion of illegality. Force majeure is mentioned in the Draft Articles on State Responsibility in the following terms (Article 23, § 1):
“The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation”.
However, there will be no exclusion of State liability if (a) the irresistible or unforeseen situation is due, alone or in combination with other factors, to the conduct of the State invoking it, or (b) if the State has assumed the risk of the situation occurring (Article 23, § 2).
Could the force majeure be claimed by China, or other States involved in the pandemic, as excluding responsibility for the spread of the virus? The whole analysis, to the evidence, involves establishing whether or not the virus was under the control of the Chinese State. In fact, although it is understood that there has been the responsibility of China due to the delay in disclosing information, this would not rule out the possibility of an exclusion of the wrongfulness of its acts.
However, it is no less true that China’s lack of information regarding the epidemic (in violation of the respective international standard) could affect the rule in Article 23, § 2, b, of the Draft Articles on State Responsibility, which prevents the exclusion of force majeure “if the State has assumed the risk of the occurrence of the situation”. As a result of this rule, when the State accepts the risk of the occurrence of the harmful situation, due to its previous conduct or unilateral act, it cannot benefit from the force majeure in order to exclude the illegality of the act. If it is true that the rule under consideration is expressed in a draft international convention, and, therefore, it would not yet be capable of generating any obligation, they reflect and codify international customs already established and recognized concerning the issue under analysis.
The whole issue will come down to proving whether China actually “took the risk of the situation occurring” generated by the COVID-19 pandemic, as well as whether the issue at hand was (really) unpredictable, despite the lack of initial due diligence, which leads to the spread of the virus. Should countries that have a history of outbreaks or epidemics have better conditions to predict and handle new ones?
If it is true that China did not directly cause the pandemic, born out of a natural event resulting from the interaction between humans and animals, it is also certain that the unjustifiable delay in the dissemination of information was the cause (with nexus) of a faster spread. These facts are critical when taking into account the possibility of violating international norms.