Scholars argued that China’s actions in connection with
COVID-19 (and the novel SARS-CoV-2 coronavirus), especially with the
responsibilities of timing and information communication set out in Articles 6
and 7, violated the International Health Regulations (see, for example, here
and here).
If China had fulfilled these commitments, today’s case of
COVID-19 would possibly be exponentially less. This leads another scholar to
declare, “China can and must be sued for the massive losses it has caused
to the world, and to alert China of the arrival of the lawyers. Nevertheless,
all these authors all share one thing: they do not recognize a legal precedent
to hold China responsible for these infringements by a foreign court or
tribunal.
In compliance with Article 56 of the International Health
Legislation, at least two researchers have pointed out a conflict resolution
mechanism (see here and here), but that mechanism does so only if China accepts
that it is of course, very improbable.
However, there is an authority overlooked: Article 75 of the
Constitution of the WHO. Article 75 provides: any issues or disputes pertaining
to or not addressed in talks or the health assembly on the interpretation or
implementation of this Constitution, shall be referred to the ICC…
In fact, the Court itself accepted that the Court’s
authority (Armed Practices, Jurisprudence and Admissibility), Decision,
paragraphs of Article 75 of the WHO Constitution. [10]. Moreover, if the Court
viewed Article 75 as Article 22 of the CERD (Ukraine v. Russia, preliminary
objections, decision, para 113), then a State does not proceed to the World
Health Assembly until the State meets the negotiating requirements so that it
may sue China before the Court.
The harder question is how does a State frame its argument
about Chinese actions as an interpreter or application of the WHO Constitution?
It does not seem that the WHO Constitution includes significant
responsibilities under the international health law. Rather the key consideration
is as the name implies, the creation of a legislative system, which discusses
concerns such as membership and institutional structure.