Taking China to the International Court of Justice over COVID-19

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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 (see, for example, here and here). Had China complied with these obligations, there would arguably be exponentially fewer cases of COVID-19 today. This has led another scholar to state that China “can and should be sued for the enormous damages they caused to the world”, and to warn China that “the lawyers are coming”. Nevertheless, 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 (see here and here), but that mechanism provides for arbitration only in the event that China consents, which, needless to say, is very unlikely.

A Jurisdictional Basis

There is, however, a jurisdictional basis that has been overlooked: 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). Moreover, if the Court interprets Article 75 the same way it interpreted Article 22 of the CERD (Ukraine v. Russia, Preliminary Objections, Judgment, para. 113), then a State would only need to satisfy the negotiation condition in order to sue China before the Court; it would not need to go through the World Health Assembly.

The more difficult question is this: 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. I have still not formed conclusive views on the merits of these claims, but I very much welcome readers (particularly any WHO experts out there) to assess, critique, and/or supplement them in the comments section below.

Potential Claims Under the WHO Constitution

First, a State could try to claim violations of the International Health Regulations through Articles 21 and 22 of the WHO Constitution. Article 21 grants the World Health Assembly the authority to adopt regulations like the International Health Regulations, and Article 22 provides in relevant part that “[r]egulations 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 the International Health Regulations concern the interpretation or application of the WHO Constitution. The counterargument, however, would be that Articles 21 and 22 concern only the authority to adopt regulations and the process of the regulations “com[ing] into force”, not the legal obligation of Member States to comply with those regulations.

A State could also try to claim that China has violated Article 64 of the WHO Constitution, 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 the Nomenclature Regulations (Nomenclature Regulations, art. 6). But one could also argue that at least some provisions of the International Health Regulations (which were also adopted by the Health Assembly), including elements of Articles 6 and 7, contribute to determining the “manner” in which “statistical and epidemiological reports” must be provided. Article 6(2), for example, requires State Parties, after notifying the WHO of an event which may constitute a public health emergency of international concern (PHEIC), to “communicate to WHO timely, accurate and sufficiently detailed public health information available to it …, where possible including … number of cases and deaths”. Article 7 is even broader, requiring State Parties, if they have evidence of an event which may constitute a PHEIC, to “provide to WHO all relevant public health information”. In light of the above, a State could potentially claim that China has violated Article 64 of the WHO Constitution by violating Articles 6 and 7 of the International Health Regulations.

Another option is to claim a violation of Article 63, which provides: “Each Member shall communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health which have been published in the State concerned.” The claim would not concern the communication of “laws” or “regulations”, but rather that of “official reports” and “statistics”. Indeed, China allegedly withheld early reports of medical staff infections, leading the WHO to believe that human-to-human transmission was not possible. China has also allegedly been withholding “classified Chinese government data” concerning the number of asymptomatic infected persons, a crucial element in ascertaining the contagiousness of the disease. An issue with the application of Article 63, however, is that these “official reports” and “statistics” would have to have been “published” in China. It is not clear how one would define the word “published” in this context. On the one hand, one could say that it refers only to formal government publications made publicly available. On the other hand, one could say that posts by Chinese doctors on social media that have been censored by China should also be considered “published” for the purposes of Article 63.

A fourth provision that China may have violated is Article 37, which provides in relevant part: “Each Member of the Organization … undertakes to respect the exclusively international character of the [WHO] Director-General and the [WHO] staff and not to seek to influence them.” (emphasis added) A claim could thus be made that China, by withholding information or by providing inaccurate information, sought to influence certain conduct of the WHO Director-General and staff, such as their strong expression of support for China and the allegedly delayed announcement of a PHEIC. In this respect, it should of course be recognized that States seek to influence the officials of intergovernmental organizations all the time, through letters, meetings, and the like. It would thus not be credible to claim that any attempt to influence would constitute a violation of Article 37. But one could argue that attempts to influence that in and of themselves violate other rules of international law, such as the International Health Regulations, would constitute unlawful influence for the purposes of Article 37.

Finally, a State could consider relying on the obligation under general international law not to defeat the object and purpose of a treaty (see Article 18 of the VCLT), 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 China’s blocking discussions on COVID-19 at the UN Security Council. Now it should be recalled 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 (Military and Paramilitary Activities, Merits, Judgment, para. 271). But one could try to challenge the continuing validity of this 34-year-old dicta, or attempt to distinguish it by noting that Article 75 grants jurisdiction not only over any “dispute”, but also over any “question” concerning the interpretation or application of the WHO Constitution.


Once again, I have not come to any definitive views on the merits of these claims. Assuming that they had some merit, one would still need to identify a State willing to sue China before the International Court of Justice, which, of course, is not an easy task. But even if the legal challenge is not successful, pursuing such a case in a public forum like the International Court of Justice could still lead to significant political victories. It is not every day that one comes across violations of international law that are, allegedly, responsible for the deaths of so many people in so many countries. So if there is any case where justice should be done, this would certainly be it.

Author’s note: The views expressed in this post are solely those of the author. They do not necessarily reflect the views of any institution with which he is or has been affiliated. Nor do they necessarily reflect the views of any of his current or former clients.

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Manuel Sanchez Miranda says

April 2, 2020

A big question mark not addressed in this post: you need to demonstrate causality. China could have acted more responsibly, but so the governments that did/have not take(n) timely measures to flatten the curve. You would need to separate and distinguish these two layers of responsibility, taking into account that whatever level of negligence incurred by a state had a snowball effect in the global damage.

Koorosh Ameli says

April 2, 2020

It is an interesting article. China and USA accuse each other for having caused the COVID-19 epidemic and not reported it in time. https://www.voanews.com/science-health/coronavirus-outbreak/chinese-diplomat-accuses-us-spreading-coronavirus

Hopefully the truth will be established by the ICJ if and when such a case is filed with it and enters the merits, although perhaps every affected state has been delinquent in the timely reporting and taking appropriate measures to contain the epidemic.

Neway Girma Tadesse says

April 2, 2020

There should also be a thorough analysis of the modalities through which the ICJ' jurisdiction can be utilized with respect to the case at hand. In spite of the fact that this is a treaty based claim,the issues as what results ultimately can be reached and how that, if there's any, can be executed in the face of irreconcilable power politics which seems to have overridden the importance of international law. But I hope there is always a way out if there is a concerted will and action on the part of the global community of relevant professionals and expertise.

Atul says

April 3, 2020

Although, the ICJ will derive it jurisdiction from the Statute and WHO constitution. The decision rendered by the world court will be ex-parte, Also,realistically speaking the decision will never be enforced because of veto.

Cathryn YU says

April 3, 2020

I am very shocked when your conclusion is “even if the legal challenge is not successful, pursuing such a case in a public forum like the International Court of Justice could still lead to significant political victories.” Is it an ultimate aim we should pursue for justice? It is a definitely sad story if ICJ is employed to be for political use but not for justice. Another big question in this post is evidence. What is the evidence to support those potential claims you mentioned in the post? Legal evidence is not written in the media reports. They should be linked to be used to prove exactly that China’s action leads to the enormous damages COVID-19 caused to the world, i.e, the causality, which renders a case to be seriously discussed.

Nadeem Hyder Advocate says

April 3, 2020

Authorities in China most likely knew of the devastating potential of COVID-19 and attempted to conceal facts. According to reports, “the first case confirmed to be COVID-19 infection was on December 8, 2019. However, doctors in Wuhan, and throughout China, were ordered “not to disclose any information about the disease to the public.” It is only after the first case of Coronavirus in Japan on January 15, 2020 raised possibility of human-to-human transmission, and videos of people dropping dead on Wuhan streets went viral, that Chinese authorities admitted to human-to-human transmission of the virus on January 23.
China, as a State Party, is additionally subject to the Biological Weapons Convention. The Convention states in Article I that each state party to this Convention undertakes never in any circumstances to retain microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for protective or other peaceful purposes,In my view, non-reporting is a form of retention in violation of the Convention. If China found acted in breach of its obligations deriving from the provisions of the Convention by its delay in reporting the coronavirus, the affected countries could lodge a complaint with the Security Council.

Norman Yap says

April 4, 2020

What I am reading is that negligence or omission is the probable basis for state responsibility. In that case, you may want to stress that China’s ban on the trade or consumption of wildlife is recent (if not yet already late) or that the ban came only in the midst of the outbreak. The legislation is an implied acceptance of a widely held consensus that: 1) the source of the virus was the Wuhan seafood market; and 2) there has been trade and human consumption of wildlife in that place for quite some time now (which could have been addressed earlier). These facts are relatively easier to demonstrate.

The normative standards might be found in texts such as: the Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, the International Agreement for the Creation of the World Organization for Animal Health, Article XX of GATT and declarations or agreements that relate to these texts. Also, it may be easier to approach this problem from a customary law perspective.

Albert Wang says

April 4, 2020

Firstly, the obligations under the IHR is an obligation of conduct, rather an obligation of result. Secondly, causality needs to be proven. In fact, the Chinese government has fulfilled its duty of due diligence. The Chinese government notified the World Health Organization in December and blocked Wuhan on January 24. At that time, the governments of other countries should have taken effective measures to avoid the spread of diseases in their own countries and reduce the risks the virus brought. A state does not need to pay for another country's faults. For a new virus, no country can predict its characteristics and infectious effects. In this case, the state has an obligation of conduct, not of consequence.

In addition, even there exists an obligation of result(I don't think it is reasonable), you need to prove that the occurrence of diseases in other places has a direct relationship with Wuhan. It is need to be proven that the place where the epidemic was first discovered is the origin of the epidemic? We know that AIDS is the first discovered in the United States, so should the United States be responsible for AIDS patients all over the world?
Finally, the international law is not a tool for seeking political aims and interests. You betray the spirits of the objectives of the international law, which seeks to preserve the peace of the world and the good of the human.

miss temitola m ojo says

April 4, 2020

Fantastic! I have been discussing it with my colleague. I am just hoping countries would stand up to the challenge. Covid 19 is going to open alot of avenues for change to our international laws .Thank you for this.

Connor Mew says

April 4, 2020

Great article

Xinxiang Shi says

April 5, 2020

I wonder if the author truly believes that international adjudication is helpful for the global endeavour to contain the pandemic? The consensual nature of international law, which often results in ambiguities in treaty provisions and legal standards, has certainly left wide room for politically motivated interpretations. But when it comes to global pandemic of this scale, what is needed is not 'political victories' but cooperation among States. There is hardly any evidence, beyond some coming-from-nowhere media reports, that China has failed to fulfil its obligations to the WHO. On the other hand, it is beyond doubt that China is using its best efforts to help other countries battle the virus. In this situation, I fail to see how subjecting China to international adjudication by twisting certain provisions in the IHR or WHO Constitution can serve any meaningful purpose, except perhaps disguising certain States' incompetence in handling the outbreak by shifting blame on China. While the science community has come to no conclusion as to where the virus has actually originated, it is rather ironic that legal scholars are starting to talk about realising ‘justice’ in a forum where justice is most unlikely to be realised.

Patricie Startlová says

April 6, 2020

China seems to be hard to hold accountable. But even after China has released provided information to the WHO, WHO has been somewhat slow to act upon them. We were wondering if China and/or other countries or even individuals might be able to sue the WHO for negligence and other torts or if the WHO has a full imunity...? Alternatively, could some WHO members be referred to the ICC for not declaring a pandemic earlier, not advising for closure of borders, etc.? Even last week, the WHO has maintained that masks are entirely ineffective and by the end of the week changed its course to say they can help mitigate the spread. These might be fatal mistakes, given that timely response and accurate evaluation is key to stoping the spread of COvid-19, right? With that, could there be a way to hold the WHO accountable?

Huiru Wang says

April 6, 2020

To begin with, it must be admitted that our views are more or less influenced by our language, culture and public opinion in which we live. We should be alert of the narrative and tendency of our mainstream media, how it portrays facts and conveys values, and how that shapes our world views. The mainstream western media (which does not necessarily represent western people’s opinion) seems to focus on and exaggerate the negative side of China's response to the epidemic, while ignoring or unwilling to recognize the huge sacrifice and contribution from China to contain the spread of the virus. The political motive behind it is not discussed here, but China's performance in its response to the virus should be viewed in a comprehensive and holistic way, not one-sidedly.

First, COVID-19 is an unprecedented and novel virus in human history. Its nature (including its transmissibility, latency and mortality rate) cannot be immediately known without epidemiological analysis, medical observation and scientific research. From the perspective of scientific rigor, no one wants to spread social panic without basis. This is important to understand that a few days gap from the time a new disease is discovered to the time its nature is known is inevitable and should be tolerated.

Second, there is sufficient evidence showing that China has taken swift, efficient and responsible measures to tackle the outbreak, including timely notification and concrete measures, which proved to be effective and credible even compared with the measures taken by other countries two months later. For those who might be misled by one-sided news, here is a factual-based timeline of another side of the story (most of which might not be seen in mainstream western media). In December 2019, Dr. Zhang Jixian, director of respiratory and Critical Medicine Department of Hubei integrated hospital of traditional Chinese and Western medicine, first discovered 3 unexplained pneumonia cases in Wuhan. On December 27, she reported to the hospital three cases of pneumonia of unknown cause in accordance with procedures. On December 31, the Health Committee of Wuhan city, Hubei province publicly announced the discovery of a pheumonia of unknown cause. On the same day, Chinese government sent a group of experts from the National Health Committee to Hubei Province to investigate the situation, with a total of three groups of experts dispatched. That night, the WHO China office received China's informal notification of the situation. On January 3, 2020, China formally informed the WHO and countries around the world, including the United States, of its discovery of a viral pneumonia of unknown cause. On January 11, the Chinese Center for Disease Control and Prevention uploaded the entire genome sequence of five new coronaviruses to the website, sharing its information with the world and the WHO. On January 20, Dr. Zhongnanshan, a respiratory expert and academician of the Chinese Academy of Engineering, pointed out the human-to-human transmissibility of the virus in a television interview. On January 23, Chinese government announced the lockdown of Wuhan city (which literally banned all transportation except for necessary needs). On January 25, Hubei Province was in lockdown, and soon the whole country adopted strict quarantine and disinfection measures to delay the spread of the virus. China has made great sacrifice at all costs to save people's lives and health, which literally means shutting down its growing economy, testing as many people as possible and treating every suspected and confirmed COVID-19 patient free of charge. According to a paper published in Science on March 31, China's containment measures may have prevented 700,000 people from being infected.

Third, the pandemic of COVID-19 is the result of both natural and human factors, which cannot be simply attributed to China. China had alarmed the world of the novel coronavirus outbreak as of early January, which is early enough to allow other countries to take preventative measures to avoid repeating China’s suffering. Even at the time of Wuhan lockedown, there were only a handful of reported cases all together outside China. However, few countries took timely preventative measures until the outbreak seriously happened to them. This is not because the world was not warned of the severity and danger of COVID-19, but because of the natural transmissibility of the virus strengthened by global mobility, combined with tricky human factors, such as misjudge of the evolving situation, miscalculation of policy priorities, lack of leadership and enforcement capacity, etc.

Unfortunately, the coronavirus outbreak first occurred in China, but it doesn't make it China's fault. Facing the unprecedented challenge to all mankind,we are all vulnerable victims. It is really not a good time to blame, but a time for compassion and understanding each other's difficulties. China has been trying its utmost to stop the spread of the epidemic within its borders, as well as providing assistance and donations to countries all over the world. If there is little expectant possibility that even the most developed countries (represented by the US and the UK) may not definitely do better had it been put under the same situation, why should we demand so high of China? China is just a developing country with many problems to solve. Would huge compensation from China really do justice, or is it one disaster after another? If the epidemic happened in a small and weak country, would it be humane to hold it responsible too?

Adejoké Babington-Ashaye says

April 21, 2020

Very interesting article! In addition to the causality element there is also the counter-argument of remoteness and the fact that other states' failure to act in a timely manner, as well as other detrimental policy decisions, may amount to a "novus actus interveniens" situation where responsibility for the global pandemic does not lie with China. Something to consider. Another point to consider regarding Article 37 is that any state claiming China violated that provision would also have to demonstrate intent. There's an implicit intent element ("seek to influence") which would need to be demonstrated. In other words, the State would have to show that, rather than negligence, China took all the steps contended in order to influence the WHO and yield a certain outcome in its favour. This is all the more important if the State is to adopt the approach suggested, namely that China made "attempts to influence that in and of themselves violate other rules of international law, such as the International Health Regulations, would constitute unlawful influence for the purposes of Article 37."  

Ayman says

April 25, 2020

The problem addressing if any potentialities to establish China under WHO constitution lies on there were not any attempt by states members of the WHO to trigger states accountability before domestic or international fora in comparable cases such Ebola or SARS .

States omission to adopt this very complicated trajectory which requires several basic and prerequisite objective steps does not negate opportunities to currently adopt this path .

2- Lacking monitoring mechanism of the WHO such several other international treaties and UN bodies and other specialized agencies requires revision to meet current and developing devastating pandemics to enhance states obedience to the WHO constitution and to find a legal obligation on states to carry out its obligation of Du Diligence in Bona Fide

Dr Ayman Salama