iNTRODUCTION
We have been witnessing an unprecedented static scenario of the restless world. The ensuing crisis of the outbreak of the coronavirus (SARS-CoV-2) has developed a multifaceted character and has been destroying the world’s trade, health, education, and economy—in other words, everything. Hence, the World Health Organisation (WHO) declared the outbreak a public health emergency of international concern on 30 January 2020 and a pandemic on 11 March 2020.[1]
Jurists[2] and Scholar’s notes[3] verified by the official research that the Chinese government had been hiding important information regarding the COVID-19 prevalence in Wuhan from the world for weeks until it was too late. Whereas being a state party to the International Health Regulation (hereinafter “IHR”), 2005, China has two international obligations to respond, scilicet the obligations, to notify the WHO within 24 hours of discovery, and to disclose details of such an unforeseen public health incident in accordance with Rules 6 and 7 of the IHR respectively. Furthermore, a study has substantiated that if China had complied with these obligations, the global spreading of COVID-19 (and the novel coronavirus SARS-CoV-2) would have attenuated. Exponentially saying if intervening measures e.g., improved disease detection, isolation of cases, and social distancing could have been conducted just three weeks earlier, it would have been possible to limit the geographical spread of viruses, and cases could have been reduced by 95 percent.[4]
Consequent to such deliberate missteps COVID-19 has been spreading and is wreaking human, economic, and social damage catastrophically throughout the world. Claims of damages have been made, and voices have been raised accusing China of being negligent, not exercising due diligence, hiding information, being opaque, and fueling the worldwide epidemic. Should China not pay reparations to the affected nations and accept international legal responsibility for the pandemic’s outbreak? Such bold claims are the result of the damage’s unparalleled breadth. This article addresses the argument that international law imposes an obligation on China to make reparation for damage and injury caused by COVID-19 and the potentiality of bringing China before the International Court of Justice [hereinafter “ICJ”].
Can China Be Brought Before the ICJ?
Among other(s), the scale of damage caused by COVID-19 depicts the claims of China’s purported violations as follows.
1. Examining China’s Conduct through the Lens of the UN Charter
The Purpose of the United Nations is to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace.[5] The ‘threats to peace and security’ in the twenty-first century include deadly infectious diseases[6] and pandemics.[7] The unprecedented extent of the Ebola outbreak in Africa[8] and COVID-19[9] was declared to constitute a threat to international peace and security.[10] Thus, China’s conduct of hiding outbreaking of COVID-19; as such, failure to take collective preventive measures is a failure to preserve the purpose of the UN Charter.
2. Potential Claims against China under the IHR
a. IHR is a Binding International Legal Instrument.
The IHR is the main tool used by international health law to address this pandemic response. At the time of IHR ratification, China announced that it “applies to the entire territory of the People’s Republic of China, including the territory under its administrative control.”[11] According to article 22 read in conjunction with article 21 of the WHO Constitution, IHR is a binding regulation. [12] Thus, being itself a treaty,[13] its provisions are obligatory to the parties.[14] Moreover, irrespective of the terminology ‘Regulation’ the party’s intention to bind themselves legally under international law, is material, [15] and has the same normative force as a treaty.[16]
b. China violated its’ obligation to disclose the outbreak of the COVID-19.
i. Violation of the Article 6 of the IHR
The IHR refers to COVID-19, comparable disorders “caused by a new subtype” of SARS (which prompted the adoption of the revised IHR, 2005), It places responsibilities on the contracting parties to exchange pertinent COVID-19 information “within 24 hours” of the virus’s detection. IHR does not, however, address the question of whether violating it imposes a duty to compensate state parties that suffer injury because of the infringement. Moreover, in order to mobilize efforts to avert pandemics, Article 6 of the IHR mandates that governments notify WHO of possible public health crises of international concern (PHEIC) in a timely, adequate, and expedited manner. This is one of the “hard-and-fast” IHR requirements, meaning that its compliance can be verified almost instantly.[17]
Additionally, IHR Brief No. 2 mandates that a state evaluate using a certain procedure included in Annex II of the IHR(2005), known as the decision instrument, within 48 hours of receiving the first reports of a PHEIC inside its borders (emphasis added).[18] It also makes clear that States Parties must base their assessment on four different criteria: 1) the severity of the event’s impact on public health; 2) the event’s unusual or unexpected nature; 3) the risk of the disease spreading internationally; or 4) the risk of other nations imposing trade or travel restrictions. Occurrences that match at least two of the aforementioned criteria must be alerted, and occurrences that may fulfill any one or more of these four requirements must be evaluated. China therefore had 48 hours to determine if this “unusual event” was related to the PHEIC in accordance with the IHR (2005) methodology.
Whereas, the South China Morning Post claimed that the first report appears to have been made by Dr. Zhang Jixian, (of the Hubei Provincial Hospital of Integrated Chinese and Western Medicine) who had reported to China’s health authorities at an even earlier date on 27 December 2019 that the flu-like disease that had stricken a rising number of patients was caused by a new coronavirus,[19] followed three days later by Dr. Ai and Dr. Li.
Over and above, there is mounting evidence from Chinese whistleblowers for example Dr. Li Wenliang, an ophthalmologist at Wuhan Central Hospital, who sounded the alarm and warned his colleagues in an online chatroom on December 30 about the virus, was forced by the regime and muzzled not to disclose the incubation of novel coronavirus in Wuhan.[20] Additionally, Dr. Ai was censured,[21] and those who dared to speak about the outbreak of COVID-19 were threatened or put in jail.[22] It shows clearly that instead of immediate assessment, Chinese authorities withheld crucial information, both nationally and internationally. Thus, as such tried to shroud in secrecy the outbreak of the virus for several weeks after it was first discovered in Wuhan: an argument to propound that China concealed the gravity of the situation with the WHO and, as such, violated the obligation under art.6.
ii. Violation of the Article 7 of the IHR
Moreover, under Article 7 read with Article 64 China had the duty to inform the WHO, “timely, accurate and sufficiently detailed, within 24 hours of determining the nature of the virus, using a prescribed checklist, as well as any measure it has deployed to deal with its outbreak, and epidemiological reports’ in a manner prescribed by the WHO. Such notification includes case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease, and the health measures employed.[23]
As the available facts show, Chinese authorities allegedly quarantined information and any public discussion about COVID-19 for nearly three weeks, furthermore, failed to share efficient information with the WHO; for example, it waited two months until Feb. 14 to disclose that 1,700 healthcare workers were infected.[24] Nevertheless, such timely information about the vulnerability of the medical workers’ health was key to understanding transmission patterns and developing strategies aimed at containing the virus. Thus, it is argued that even after disclosing the existence of COVID-19 China did not periodically inform the WHO of the true nature of the virus and about the alarming level of its spread within its territory; an argument to elicit that China did not comply with its obligation under aforementioned articles.
An independent and reputable foreign medical journal ‘The Lancet’ study found that 41 patients “had been identified as having laboratory-confirmed 2019-nCoV infection,” on 2 January. Whereas the Chinese government allowed this study to be published – which given its’ official nature, this research study amounts to a direct admission by the Chinese government that they knew early on about the nature of the contagion in Wuhan. Accordingly, China should have alerted the designated IHR Contact Point within 24 hours of this determination. Romel Bagares[25] remarked that this study could be a “smoking gun in any international litigation”
iii. Violation of the Article 10 of the IHR
Another obligation that China failed to comply with is WHO’s mandate, which is articulated in Article 10 of IHR, to seek verification from states concerning unofficial reports of potential PHEIC. Under this obligation, China was duty bound to provide timely and transparent information, as requested to verify, within 24 hours, and to participate in collaborative assessments of the alleged risk. Despite that, China rejected offers of epidemic investigation assistance reiterated by WHO officials in late January without any justification.[26]
Furthermore, it is worth mentioning that the purpose and scope of the IHR (2005) are “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”[27]
iv. Violation of the Article 3 of the IHR
On top of that, Article 3 of the IHR states that the IHR principles shall be respected with full dignity, human rights, and fundamental freedoms. The outbreak of COVID-19 has already been affecting the right to life and the right to health of nearly millions of people globally. Thus, it could be argued that China breached the human rights of its citizens and millions of global citizens by not respecting the IHR principles. Moreover, in defining the scope and purpose of the IHR, instead of commercial interests public health considerations get priority.[28] Thus, it is crystal clear that the health, security, and safety of the world being the spirit of the IHR (2005) are fundamentals and common interests of nations hence a breach in IHR (2005) obligations triggers international responsibility under article 42 of the Articles on Responsibility of States for Internationally Wrongful Acts.[29]
3. Invocation of the WHO Constitution to bring China before the ICJ
The World Health Organization (WHO) possesses the authority to create norms related to health.[30] Moreover, UNSC Resolution 2177 insists States to comply with WHO’s recommendations.[31] Additionally, the WHO reiterated the obligation for all States Parties to fully implement and comply with the IHR.[32] The Constitution of the WHO’s preamble proclaimed that the enjoyment of the highest attainable standard of health was a fundamental human right.[33] Although the WHO Constitution does not contain any substantive requirements under international health law, a few arguments exist over how it should be interpreted or applied across the board. First off, every state party is required by Chapter XIV of the constitution to provide a statistical public health report.
Moreover, states may claim the ICJ’s jurisdiction by using Articles 21 and 22 of the WHO Constitution. China’s claimed violations of its IHR requirement relate to how the WHO Constitution is interpreted, as Article 21 gives the WHO the authority to create rules such as the IHR. As a result, the IHR is the “subsequent practice” of the WHO Constitution. Consequently, any nation ready to take China to court might argue that China has violated its IHR duty. Furthermore, Article 22 of the WHO Constitution deals with Member States’ obligation to comply with IHR as it states that “…… regulations adopted pursuant to Article 21 shall come into force for all Members ”( emphasis added). However, some scholars raise counterarguments that this Article concerns only the process of the regulations “com[ing] into force”.
Article 37 of the WHO Constitution requires the state ‘to respect the exclusive international character of the Director-General and the staff and not to seek to influence them.’ Whereas, China, by withholding information about the nature of the virus at an earlier stage, sought to influence certain conduct of the WHO Director-General which resulted in the strong expression of support for China and the allegedly delayed announcement of a PHEIC. However, any state claiming China violated this negative obligation would also have to demonstrate an implicit intent element -“seek to influence”. In other words, the State would have to show that, rather than negligence, China took all the steps contended to influence the WHO and yield a certain outcome in its favor.
4. Teleological Approach: Plausible Claims under VCLT
The teleological element[34] under Article 31(1) of the Vienna Convention on Law of the Treatise (VCLT) requires the provisions of the IHR to be interpreted considering the principle of “effectiveness[35]” or the “purposive approach”.[36] The object and purpose may be determined from ‘circumstances of adoption’[37] including substantive provisions.[38] Furthermore, a State is required by Article 18 to abstain from actions that would undermine the goal and objectives of a treaty. Comprehensively, the IHR aims to maximize protection against public health risks while minimizing interference with travel and trade though.[39]
Based on these commitments, a State may argue that China has violated the WHO Constitution’s mission and purpose, which is “the attainment by all peoples of the highest possible level of health,” as stated in Article 1 of the WHO Constitution. These obligations also prompt an argument to question China’s abuse of its veto power to block a United Nations Security Council (UNSC) meeting to discuss COVID-19, which might bring some safeguards to prevent the global spreading of COVID-19
5. Plausible Claims under the Biological Weapons Convention
Furthermore, China is prohibited by Article I of the Biological Weapons Convention from retaining microbial or other biological agents, or toxins, regardless of their source or mode of production, in any situation, in amounts or types that are not justified for defensive or other peaceful purposes. As a result, the argument that non-reporting constitutes a form of such retention; hence, a violation of the Convention is compelling. If China was 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 complain about this convention to the UNSC.
Legal Barriers to Bring China before the ICJ
The door appearing through these potential legal issues to bring China before ICJ might be shut down as it lacks sufficient jurisdictional and legal basis. Amongst many, the following two are core issues to be discussed here.
1. ICJ’s Jurisdictional Basis to Adjudge China for COVID-19
Firstly, such a claim ignores the jurisdictional compatibility issue. A well-established principle of general international law evolved from the Eastern Carelia case[40]and later acknowledged by ICJ[41] is that no State without its consent can be compelled to submit its disputes to arbitration, mediation, or any kind of pacific settlement. ‘Principle of State Sovereignty’ is the genesis of this rule. Furthermore, for contentious cases, ICJ needs a state’s consent to exercise its jurisdiction,[42] while China has never given one.
Thus, the only lawful course available to bring China before the court is under Article 75 of the WHO constitution, which provides for the court’s jurisdiction but with limitations to the interpretation or application of the Constitution and a pre-condition of going through negotiation or the Health Assembly first. Thus, it is impossible to submit a case before the ICJ directly, only if even after approaching the World Health Assembly (WHA), or negotiation, these issues failed to be resolved then. The Court affirmed this position in Armed Activities (new application).[43]
In Whaling, the court underscored that treaty terms are not to be determined in the abstract,[44] but in light of its context, object, and purpose.[45]While Article 1 of the WHO Constitution’ depicts the salient objective as “the attainment of the highest possible level of health”, thus the achievement of such an aim could be rendered more difficult if the procedural preconditions under Article 75 became an obstacle to trying a state for its’ negligence and absence of due diligence towards the public health emergency. While, Article 56 of the IHR stipulates its settlement mechanism but provides for arbitral mechanism only (including negotiation, mediation, or conciliation), but not submission to the ICJ. However, as we know China’s usual stance on international litigation, stay away from it, when it goes against your interest, it is very unlikely to get China’s consent for arbitration.
Paralleling these two positions, it can be concluded that in order to bring China before the Court the only precondition needed to satisfy is ‘exhaustion of the negotiation condition’; it would not further need to go through the WHA. That means dispensing the dispute to be submitted before WHA, States may directly approach the Court if they went through negotiation only. In the same way, the court itself liberally interpreted the dispute resolution mechanism enshrined under Article 75 of the WHO Constitution in Armed Activities (new application)[46],and Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, (CERD), 1965 recently in Ukraine v. Russia case[47]of 2019.
However, the court when interpreting the optional protocol to the Vienna Convention on consular relations in the Jaddav case, – referring to its previous interpretation in United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)[48], noted that recourse to arbitration is not a prerequisite to approaching the world court. Considering the reasoning behind this rule, the ICJ would exempt the negotiation criterion in Article 75 of the WHO Constitution.
However, notwithstanding these jurisdictional hurdles for the States concerning a contentious case, WHO can go ICJ with the authorization of UNGA, requesting an advisory opinion under Article 76 of the WHO Constitution, provided such request should be concerning a legal question within the scope of the activities of the WHO. The court interpreted that the responsibilities of the WHO were necessarily within the sphere of “public health”,[49] as the present COVID-19 pandemic primarily falls under the ambit of “public health,” the WHO is competent to request an advisory opinion as it falls within its mandate. Among manifold advantages of requesting such an advisory opinion, the salient one is China can be instructed by the ICJ to compensate for losses to the injured states, as in the landmark ‘construction of the wall’ case the ICJ observed that victims can be provided reparations.[50]
However, the ICJ itself is entitled to take into account the view of the experts.[51] Thus, in Costa Rica,[52] the Court ascertained competing scientific evidence on its own, without appointing a scientific expert.[53]
2. Does the Case Meet the Causality Link Requirement?
Secondly, the obligations alleged to be breached involve a positive duty that must be discharged to prevent the spread of COVID-19, thus, before making China responsible and claiming damages, reparations may require a causal link between the alleged breach of an international obligation and the damage sustained by the injured States.
Under a newly developed model of causation – a “sufficiently direct and certain causal nexus test” established by the ICJ in the ‘Bosnian Genocide’,[54] 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 complied with its treaty obligations. Whereas, pursuant to the ‘simple test model’ of an obligation of conduct as was observed in ‘Corfu Channel,’ failure to discharge the positive duty to notify under customary international law was sufficient to be liable to pay damages against the offending state, Albania, which failure was deemed a form of negligence.[55]
However, In addition to the absence of a causality element, scholars also raise the counter-argument of remoteness and the fact that other states’ failure to act promptly, 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.
Invocation of the ARSIWA: China’s Alleged International Wrongful Act & Possible outcome of the Case
The notion of responsibility for wrongful conduct is a basic element in the possession of international legal personality.[56] It is a well-established principle of international law that a State that has suffered harm has the right to receive compensation for that harm from the State that committed an internationally unlawful act.[57]
A treaty, a norm of customary international law, or both may impose obligations on a State.[58] Comprehensively, this grave breach of IHR, 2005 is tantamount to international wrongful acts as defined in Article 2 of the ARSIWA, which brings China within the ambit of international responsibility under Article 1 of the same. According to Article 1 of ARSIWA, every unlawful act committed by a state carries with it an international obligation for that state to repair it[59] in an adequate form,[60] as the PCIJ,[61] and ICJ require the same in different cases[62] and its advisory opinion.[63]
Article 2 read in conjunction with Article 12 of the ARSIWA demands that China’s purported act be traceable to it and not in violation of any of its international responsibilities in order to hold China accountable on a global scale.[64] Moreover, article 4 makes it clear that the state is likewise responsible for the functions of its organs. As a result, wrongful conduct, originated with the Wuhan local government and is therefore attributable to China.
Therefore, China’s failure to fulfill its commitment under the IHR to promptly and honestly disclose information to WHO constitutes an early and subsequently prolonged breach of its legal responsibilities, as per Article 14 of ARSIWA.
Thus, China would be required to wipe out all the consequences of the illegal act.[65] It must compensate for any material loss caused by the breaches of international law.[66] Compensation includes damages for loss sustained as a result of the wrongful act[67] and covers all financially assessable damage including loss of profits.[68] This must be done ‘immediately between the States concerned.[69] Such assessment of damages may also come with an award of satisfaction, or a formal apology and an assurance that its unlawful conduct will not be repeated. [70]Moreover, Article 39 paves the way, to bring Chinese President Xi Jinping and others who contributed to the Chinese breach of its obligation to immediately share information with the rest of the world, into responsibility.
Concluding Remarks
At the very conclusion of this esoteric discussion assuming that the ICJ decides on the merits, the enforcement happens at the Security Council. China, as a permanent member of the UN Security Council, might veto the enforcement of the judgment, as it was previously witnessed in the ICJ in Nicaragua v. USA.[71] Thus, I would rather prefer to conclude that International law has licensed a wide room to roam, albeit it does not mean it should be a tool for political games, aims and interests rather should be a tool to preserve the peace of the world and the good of the human.
[1] <https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen> accessed 20 April 2020.
[2] Peter Tzeng, ‘Taking China to the International Court of Justice over Covid-19’ <https://www.ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid-19> accessed 20 April 2020.
[3] Belluz Julia, ‘China hid the severity of its coronavirus outbreak and muzzled whistleblowers’ <https://www.vox.com/2020/2/10/21124881/coronavirus-outbreak-china-li-wenliang-world-health-organization > accessed 20 April 2020.
[4] Shengjie Lai and others, ‘Effect of non-pharmaceutical interventions for containing the COVID-19 outbreak in China’ medRxiv (March 13, 2020) <http://www.medrxiv.org/content/10.1101/2020.03.03.20029843v2 > accessed 02 May 2020.
[5] United Nations, Charter of the United Nations (24 October 1945) 1 UNTS XVI, [“UN Charter”], Article 1(1).
[6] UNGA, ‘Report of the Secretary-General’ (21 March 2005) UN Doc A/59/2005 ¶78.
[7] E de Wet, ‘Peace, Threat to’ Max Planck Encyclopedias of International Law [MPEPIL] (vol. VIII, OUP 2009) ¶9.
[8] UNSC Resolution 2177 (18 September 2014) UN Doc S/RES/2177.
[9] UNGA Res. 74/307, ‘United response against global health threats: combating COVID-19’ (15 September 2020), UN Doc A/RES/74/307.
[10] Gian Luca Burci and Jakob Quirin, ‘Ebola, WHO, and the United Nations: Convergence of Global Public Health and International Peace and Security’ (2014) 18 (25) ASIL Insights.
[11] WHO, International Health Regulations, 2005 (2nd edition, WHO Press, 2008, ISBN 9789241580410) appendix II, p.62
[12] J. Ruger, ‘Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements’ (2006) 18 Yale Journal of Law & the Humanities 273. 312.
[13] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [“VCLT”], Art. 2(1) (a).
[14] VCLT, Art. 26.
[15] Robert Kolb, The Law of Treaties: An Introduction (Cheltenham: Edward Elgar Publishing Limited 2016) 25.
[16] Austro-German Customs Regime [1931] PCIJ, ser. A/B, no. 41, p. 47.
[17] Pedro A. Villarreal, ‘COVID-19 Symposium: “Can They Really Do That?” States’ Obligations under the International Health Regulations in Light of COVID-19 (Part I)’ opinio juris (31 March 2020) <http://opiniojuris.org/2020/03/31/covid-19-symposium-can-they-really-do-that-states-obligations-under-the-international-health-regulations-in-light-of-covid-19-part-i/> accessed 9 May 2020.
[18] https://www.who.int/ihr/publications/ihr_brief_no_2_en.pdf?ua=1
[19] Josephine Ma , ‘Coronavirus: China’s first confirmed Covid-19 case traced back to November 17’ The South China Morning Post ( 13 March 2020) <https://www.scmp.com/news/china/society/article/3074991/coronavirus-chinas-first-confirmed-covid-19-case-traced-back> accessed 20 April 2020
[20] Helen Davidson ‘Chinese Inquiry Exonerates Coronavirus Whistleblower Doctor’ The Guardian ( Sydney, 20 March 2020)
[21] Lily Kuo, ‘Coronavirus: Wuhan doctor speaks out against authorities’ the Guardian (11 March 2020) <https://www.theguardian.com/world/2020/mar/11/coronavirus-wuhan-doctor-ai-fen-speaks-out-against-authorities> accessed 9 May 2020.
[22] Gerry Shih and others, ‘Early missteps and state secrecy in China probably allowed the coronavirus to spread farther and faster’ the Washington post (1 February 2020) <https://www.washingtonpost.com/world/2020/02/01/early-missteps-state-secrecy-china-likely-allowed-coronavirus-spread-farther-faster/> accessed 9 May 2020.
[23] IHR Brief No. 2, <https://www.who.int/ihr/publications/ihr_brief_no_2_en.pdf?ua=1> accessed 9 May 2020.
[24] Emily Rauhala ,’World Health Organization: China not sharing data on coronavirus infections among health-care workers’ the Washington post (26 February 2020) <https://www.washingtonpost.com/world/asia_pacific/world-health-organization-china-not-sharing-data-on-health-care-worker-coronavirus-infections/2020/02/26/28064fda-54e4-11ea-80ce-37a8d4266c09_story.html> accessed 9 May 2020.
[25] Romel Regalado Bagares, ‘China, international law, and Covid-19’ Interlacements (27 March 2020) <https://enkapsis.wordpress.com/2020/03/27/china-international-law-and-covid-19/> accessed 3 May 2020.
[26] Donald G. McNeil Jr. and Zolan Kanno-Youngs, ‘C.D.C. and W.H.O. Offers to Help China Have Been Ignored for Weeks’ the New York Times (Feb. 7, 2020) <https://www.nytimes.com/2020/02/07/health/cdc-coronavirus-china.html> accessed 9 May 2020.
[27] WHO, International Health Regulations, 2005 (2nd edition, WHO Press,2008, ISBN 9789241580410) 1
[28] David P. Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4(2) Chinese Journal of International Law 325, 361.
[29] Articles on Responsibility of States for Internationally Wrongful act (Dec. 12, 2001) U.N. Doc. A/RES/56/83 [“ARSIWA”].
[30] Lawrence O. Gostin, Sridhar & Hougendobler, The normative authority of the World Health Organization (2015) 129 (7) Public Health 854, 856-857.
[31] UNSC Resolution 2177 (18 September 2014) UN Doc S/RES/2177, ¶9.
[32] WHO, (Resolution of the 146th session) ‘Strengthening preparedness for health emergencies: implementation of the International Health Regulations (2005)’ (8 February 2020) EB146.R10, 1(1).
[33] The WHO Constitution, Preamble.
[34] Richard Gardiner, Treaty Interpretation (OUP 2015), 211.
[35] Aegean Sea Continental Shelf [1978] I.C. J. Reports 3, 22 ¶52; Case Concerning the Territorial Dispute (Libyan Arab Jamahirya v Chad) (Judgment) ICJ Rep 1994 6, 25¶ 51; Armed Activities on the Territory of the Congo (New Application: 2002) (Congo v. Rwanda) (Jurisdiction) [2006] I.C.J Rep. 67, 33 ¶ 72.
[36] LaGrand (Germany v. United States of America) (Judgement) [2001] ICJ Rep 466 [“LaGrand”] ¶99; Legality of Use of Force (Serbia and Montenegro v. United Kingdom) (Preliminary Objections) [2004] ICJ Rep. 1345 ¶98.
[37] Martin Ris, ‘Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties’ (1991) 14 B.C. International & Comp. L. Rev. 111, 115.
[38] Case Concerning Rights of Nationals of the USA in Morocco (France v USA) (Judgment) [1952] ICJ 176, 196; Certain Norwegian Loans (France v Norway) (Judgment) ICJ Rep 1957 9, 24; Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment) [2014] ICJ Rep. 226, [“Whaling”] ¶58.
[39] Trygve Ottersen, Steven J. Hoffman, Gaëlle Groux, ‘Ebola Again Shows the International Health Regulations Are Broken: What Can Be Done Differently to Prepare for the Next Epidemic?’ (2016) 42 American Journal of Law & Medicine 356, 361.
[40] Eastern Carelia, PCIJ, Ser. B. NO.5, p. 27.
[41] Ambatielos case (merits: obligation to arbitrate) (Judgment) [I953] ICJ Rep. 10 (19 may ) p. 19.
[42] ICJ Statute, Article 36.
[43] Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction and Admissibility) [2006] I.C.J Rep. 67 [“Armed Activities (New Application)”] ¶99.
[44] ILC, Commentaries on Draft Articles, Y.I.L.C. Vol II, 221(1966), ¶12.
[45] Whaling, 250 ¶55-58; Ukraine v. Russian Federation (Preliminary Objections) (8 November 2019) I.C.J. Rep. [“Ukraine Vs. Russia”] ¶111.
[46] Armed Activities (New Application: 2002) (n 43) ¶100.
[47] Ukraine v. Russia, (n 45) ¶113.
[48] United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment) [1980] I.C.J. Reports, pp. 25-26, [“Consular Staff”] ¶48.
[49] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (Advisory Opinion) [1996] I. C. J. Rep. 66 ,at p. 80 ¶26.
[50] Legal Consequences of the Construction of a Wal1 in the Occupied Palestinian Territory Advisory Opinion) [2004] I. C. J. Rep. 136, at 198 [“Construction of the Wall”] ¶151
[51] WTO, Japan: Measures Affecting the Importation of Apples– Appellate Body Report (26 November 2003) WT/DS245/AB/R, ¶166
[52] Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), (Judgment) [2015] I.C.J. Rep. 665.
[53] Yoshifumi Tanaka, ‘Costa Rica v. Nicaragua and Nicaragua v. Costa Rica: Some Reflections on the Obligation to Conduct an Environmental Impact Assessment’ (2017) 26(1) Review of European Community and International Environmental Law, 91, 96.
[54] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina/Serbia and Montenegro) (Judgment) [2007] I.C.J. Rep. 43, [“Bosnian Genocide”] at 243 ¶462.
[55] Corfu Channel, (Merits) (Judgment) [1949] ICJ Rep. 4, [“Corfu Channel”] at pp. 17–18 and 22–23.
[56] ILC, Draft articles on Articles on State Responsibility, with commentaries, II. 2 YILC 31 (2001), at 34, Article 1, ¶7
[57] Gabčikovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep. 7, [“Gabčíkovo”] at p. 81 ¶152
[58] North Sea Continental Shelf (Judgment) [1969] ICJ Rep. 3, at pp. 38–39 ¶63.
[59] ARSIWA, Article 31.
[60] Factory at Chorzow (Germany. v. Poland.) (merits) [1928] P.C.I.J. (ser. A) No. 17 (Sept. 13) [“Factory”], 21
[61] Phosphates in Morocco, Judgment [1938] P.C.I.J., Series A/B, No. 74, p. 10, [“Phosphates”] at p.28; S.S. “Wimbledon”, 1923, P.C.I.J., Series A, No. 1, p. 15, at p. 30; and Factory, (n 60)29.
[62] Corfu Channel, (n 55) 23; Gabčikovo. (n 57) 38 ¶47.
[63] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174, at p. 184; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J. Reports 1950, p. 221.
[64] Consular Staff in Tehran (n 48), at 29 ¶56, at 41 ¶90.
[65] Factory, (n 60) 47.
[66] Factory at Chorzów (Jurisdiction) [1927] P.C.I.J (Ser. A) No. 9 [“Factory: Jurisdiction”] ¶21; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) [1996] ICJ Rep. [“Genocide”] ¶460; Gabčikovo. (n 57) ¶152; ARSIWA, Article 34.
[67] ILC, ‘Commentary on the Articles of State Responsibility’ (2001) Vol. II [“ARSIWA Commentary”], Article 91, art.31, ¶ 2.
[68] ARSIWA Commentary, Article 36 ¶98.
[69] Phosphates (n 61) 28.
[70] LaGrand (n 36) at p. 495 ¶81; Paraguay v.USA, (Provisional Measures) Order of 9 April 1998, [1998] ICJ Rep. p. 248.
[71] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Jurisdiction and Admissibility) (1984) I.C.J. Reports p. 392.
