ICJ Jurisdiction over Obligations to Share Information with the WHO

It has been almost a year since the World Health Organization (WHO) declared the Covid-19 outbreak a public health emergency of international concern (PHEIC) and many parts of the world are still suffering deaths, disease, and lockdowns despite the advent of vaccines. Yet little has happened in terms of international responsibility, even if the blogosphere has produced analyses on the potential for international adjudication against the People’s Republic of China (PRC) for its allegedly delayed response early in the outbreak in Wuhan in late 2019.

In a thoughtful contribution, Peter Tzeng performs a preliminary assessment in relation to the jurisdiction of the International Court of Justice (ICJ), though the focus of his contribution is mostly on the substantive legal foundations of any action. Concerning the applicable international rules, the most propitious arguments revolve around alleged breaches of the Constitution of the World Health Organization (WHOC or Constitution) and the International Health Regulations 2005 (IHR or Regulations). Articles 63 and 64 WHOC respectively demand of states parties, in addition to annual reporting obligations, that they ‘communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health’ and ‘provide statistical and epidemiological reports in a manner to be determined by the Health Assembly.’ Articles 6 and 7 IHR, adopted by the Assembly, specify the timeline for sharing this information, including when a state ‘has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a [PHEIC].’ Article 6 refers explicitly to a decision instrument annexed to the Regulations, which provides a step-by-step decision-making scheme for determining the need to inform the WHO.  

By contrast to possible substantive grounds, the jurisdictional foundations for potential referral to the ICJ have not yet been examined in any detail. In this post, I discuss the preconditions for seizing the Court under the WHOC for information-sharing violations, followed by an examination of the potential for conflict between the differing dispute resolution mechanisms in the WHOC and the IHR. 

The Prerequisites of Article 75 WHOC

Article 75 WHOC stipulates that ‘[a]ny question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the [World] Health Assembly shall be referred to the [ICJ] in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.’ A dispute over the information-sharing obligations contained in the Constitution would thus, absent a selected alternative, be justiciable before the ICJ.

However, this provision contains two prerequisites (negotiation and World Health Assembly settlement). Some have construed a 2019 judgment from the Court as holding that these two steps could be reduced to one. In Application of CSFT and CERD (598-600, paragraphs 106-113), the Court inter alia interpreted Article 22 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which reads: ‘Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, [upon request] be referred to the [ICJ] for decision […].’

The parties to this case disagreed on the meaning of the word ‘or’ separating ‘negotiation’ and ‘procedures expressly provided for’ in Articles 11-13 CERD, which involve the CERD Committee. The ICJ noted that, as opposed to affirmatively phrased clauses (‘shall be settled by X or Y’), negative clauses (‘not settled by X or Y’) such as Article 22 CERD could – in principle – support an alternative as well as a cumulative reading of the two preconditions. The ICJ found that the options in Article 22 ‘are two means to achieve the same objective, namely to settle a dispute by agreement’, resting on the states’ willingness to reach an agreed settlement (paragraph 110). Consequently, the Court found an interpretation requiring double negotiations to be unreasonable. Therefore, the Court saw the two preconditions as alternatives, meaning that a serious but failed attempt at one of them will clear the way for the Court’s jurisdiction.  

I am less confident that the Court would interpret Article 75 WHOC similarly. This clause is also worded in the negative, making cumulative and alternative readings of the prerequisites possible. But where the Court essentially equates the CERD prerequisites, it is unlikely that the Court would do the same with settlement by negotiation and settlement by the Assembly. The CERD Committee is a body of experts serving in a personal capacity, with the power to transmit communications, appoint a conciliation commission (also serving in their personal capacity), offer its good offices, and submit the commission’s recommendations to the disputing states (Articles 11-13).

The Assembly, however, is the main decision-making body of an international organisation and a representative organ whose delegates act on behalf of their states. Faced with a dispute, it would presumably create a special committee and ultimately adopt a resolution on the matter. The Assembly may make recommendations (Article 23 WHOC), but its powers extend beyond that. Its Rules of Procedure (Rule 70) make it possible for the Assembly to, through two thirds of members present and voting, suspend member’s voting privileges and services. Article 7 WHOC provides for that power when a member fails to meet its financial obligations and ‘in other exceptional circumstances.’ The Assembly could refuse to let the PRC designate a person to serve on the Executive Board (Article 18(b) WHOC). Moreover, it may request an advisory opinion from the ICJ on the matter (Article 76 WHOC and Article X Agreement between the UN and WHO) or entrust the dispute to the WHO’s Executive board (Article 28 WHOC).

On a side note, the Assembly’s rules of procedure envision the possibility to vote by secret ballot (Rule 78), making politically sensitive votes less risky. However, whether the aforementioned powers are likely to be invoked is strictly speaking irrelevant. What matters is that the Assembly has these powers. As such, while the Assembly cannot produce a binding settlement of an interstate dispute, its role is different from that of the CERD Committee. It is therefore not obvious that the two prerequisites could be reduced to one. In fact, the Court had occasion once to interpret Article 75, doing so in its 2006 Armed Activities: New Application (2002) judgment. Since it found that a dispute over the interpretation or application of the WHO Constitution did not exist in that case, it remarked that the ‘other preconditions’ (plural) of Article 75 had not been established either (43, paragraph 100). This suggests that both prerequisites must have failed prior to having recourse to the ICJ.

A Conflict Between the WHOC and the IHR?

States’ information-sharing obligations are detailed in the IHR 2005, a treaty adopted by the Assembly giving expression to regulatory powers provided for in the WHOC (especially Articles 2(k), 21(a), 22, and 64). Article 64 WHOC states that ‘[e]ach Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly.’ As such, the Regulations’ rules on information-sharing directly flow from delegated powers contained in the Constitution. The IHR’s own never before invoked three-pronged dispute settlement process provides for negotiation or alternative peaceful means of settlement; if unsuccessful, referral to the WHO Director-General; and finally, voluntary arbitration by the Permanent Court of Arbitration (PCA). Would this preclude recourse to the ICJ?

The ICJ’s jurisdiction over WHOC violations would likely not be affected. In fact, Article 56(4) IHR contains a conflict clause: ‘Nothing in these Regulations shall impair the rights of States Parties under any international agreement to which they may be parties to resort to the dispute settlement mechanisms […] established under any international agreement.’ This clause appeared when recourse to the ICJ under the Regulations was removed from the previous edition of 1969 (Article 93(3)). It was arguably inserted to counter any potential conflicts with the Constitution’s provision on ICJ adjudication. Article 30(2) Vienna Convention on the Law of Treaties (to which the PRC is a party) confirms that the Regulations would cede priority to the WHOC’s dispute settlement provision and thereby to adjudication by the ICJ.   

Would the Court also have jurisdiction over alleged violations of the Regulations themselves? The intimate connection between the two instruments is paramount here. As mentioned, the IHR’s information-sharing obligations were adopted by the Assembly in view of direct delegation under Article 64 WHOC. The duties concerning information-sharing in the Constitution itself are minimal. In fact, violations of the Regulations (Articles 6 & 7) could be described as indirect violations of the Constitution (Articles 63 & 64).

Following the Permanent Court of Arbitration tribunal’s decision in Enrica Lexie, the Court could also decide to consider violations of the IHR to be incidental to violations of the Constitution. In its award, the tribunal considered it necessary to address a question of immunity (not provided for in Art. 288 UNCLOS) in order to adjudicate the jurisdictional dispute between India and Italy. The ICJ has previously refused to read such additional issues into compromissory clauses. However, the delegated nature of the IHR’s information-sharing obligations, the minimality of the Constitution’s own provisions on the communication of information, and the Regulations’ deference to the Constitution’s dispute settlement clause could have the Court deciding ‘incidentally’ on a state’s observance of IHR obligations when it adjudges questions of WHOC compliance.  

There is some skepticism over the Court’s potential role in international health law, for it could hinder international cooperation on infectious disease control. Moreover, while it is explicitly mentioned in the Constitution as dispute settler, it has never had to assume this role. From a policy perspective, ICJ adjudication is perhaps not the most effective enforcement mechanism imaginable. But faced with few alternative mechanisms, it is incumbent upon us to examine all possible devices for realising more effective enforcement of public health obligations for when the next virus hits. Whereas it would be for the Court to decide on these matters in a future case, there appears to be no legal impediment to triggering the ICJ’s jurisdiction over information-sharing obligations in the WHOC and the IHR, after fulfilling both prerequisites mentioned in the former.