Can the United States Sue China over COVID-19 in an International Court?

Can the United States Sue China over COVID-19 in an International Court?

Legal Sidebari

Can the United States Sue China over
COVID-19 in an International Court?
July 24, 2020
Some Members of Congress assert that China should bear international legal responsibility for its alleged
role in failing to contain the COVID-19 pandemic in its early weeks. Proposed options to impose
accountability include initiating investigations of China, giving the President authority to impose COVID-
19-related sanctions, reforming World Health Organization (WHO) regulations, and narrowing China’s
foreign sovereign immunity so that it could face litigation in U.S. courts. In addition to these proposals,
some Members of Congress have urged the United States to sue China in an international forum for
damages arising from COVID-19’s spread.
Of the advocates for suit in an international court, some contend that China bears legal responsibility
because it violated the 2005 International Health Regulations (IHR (2005)) promulgated by the World
Health Assembly, WHO’s governing body. China’s critics often focus on Articles 6 and 7 of IHR (2005),
which require WHO member countries to notify and share information with WHO about any “public
health emergency of international concern.” Had China more fully complied with these regulations, its
critics argue, COVID-19 would have been better contained and resulted in fewer cases. But just as
attempts to sue China for COVID-19 damages in U.S. domestic courts face difficult legal hurdles
(discussed in this Sidebar), a suit in an international forum would raise complex legal questions. This
Sidebar examines these legal questions and discusses whether an international forum would hear a dispute
over China’s alleged failure to comply with IHR (2005)’s notification and information-sharing
requirements.
What Did IHR (2005) Require China to Do About COVID-19?
As discussed in this In Focus, IHR (2005) generally requires countries to build core public health
capacities and to notify WHO of and respond to disease outbreaks. Article 6 requires countries to notify
WHO of “all events which may constitute a public health emergency of international concern” and, after
notification, to communicate “timely, accurate and sufficiently detailed public health information” about
the event. Article 7 provides:
If a [member country] has evidence of an unexpected or unusual public health event within its
territory … which may constitute a public health emergency of international concern, it shall provide
to WHO all relevant public health information.
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Some have accused China of withholding information during the virus’s outbreak in violation of Articles
6 and 7. China denies concealing information. While resolution of the factual dispute is outside the scope
of this legal analysis, a detailed chronology of China’s handling of the outbreak is available in this CRS
Report.
Is There an International Forum with Jurisdiction to Hear a Case Against China?
If factual events support a claim that China did not comply with Articles 6 and 7, the United States would
still have to identify an international forum with jurisdiction to hear the dispute. Article 56 of IHR 2005
allows member countries to enter negotiations and mediation concerning disagreements over the
regulations. If the parties are unable to resolve a dispute between themselves, they may refer the
disagreement to the WHO director-general, “who shall make every effort to settle it.” If those efforts do
not succeed, Article 56 authorizes countries to submit disputes to the Permanent Court of Arbitration, one
of the world’s oldest institutions for international dispute resolution. But Article 56 of the IHR (2005)
does not require member countries to resolve their differences in the Permanent Court of Arbitration, and
participation is voluntary.
Some commentators have examined whether the parent international agreement to the IHR (2005)—the
1946 Constitution of the World Health Organization—could create jurisdiction in the International Court
of Justice (ICJ). The WHO Constitution is a binding international agreement that formed WHO. Article
75 of the WHO Constitution provides that:
Any 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 International
Court of Justice … unless the parties concerned agree on another mode of settlement.
By stating that disputes shall be referred to the ICJ, Article 75 binds member countries to the ICJ’s
compulsory (i.e., non-optional) jurisdiction for disputes that fall within in its terms. (Whether China
would comply with the ICJ’s lawful exercise of compulsory jurisdiction is a separate matter outside the
scope of this Sidebar.) As explained in this CRS Sidebar, the ICJ is the “principal judicial organ” of the
United Nations. To invoke the ICJ’s jurisdiction, Article 75 requires that the disagreement be one that is
“not settled by negotiation or by the [World] Health Assembly”—meaning that an effort at non-judicial
resolution must precede the suit. In interpreting a similar clause in Article 22 of the International
Covenant on the Elimination of All Forms of Racial Discrimination, the ICJ concluded that these
prerequisites were alternative rather than cumulative. If the ICJ were to apply this reasoning to the WHO
Constitution, either negotiation or reference to the World Health Assembly would need to take place
before the United States or another country could invoke Article 75.
Could the United States Bring a Case in the ICJ?
While Article 75 of the WHO Constitution provides the ICJ with compulsory jurisdiction in some cases, it
does not require the ICJ to hear every dispute. According to the ICJ in Armed Activities on the Territory
of the Congo, Article 75 creates jurisdiction only for disputes that “specifically concern” how countries
interpret or apply the WHO Constitution. Whether the United States could frame a complaint against
China to meet this standard is a difficult question.
The WHO Constitution is predominantly a framework document that defines WHO’s institutional
structure and membership. It does not include the same substantive reporting and information-sharing
requirements as Articles 6 and 7 of IHR (2005). The United States might argue that, because the WHO
Constitution authorized the World Health Assembly to issue IHR (2005), a dispute about application of
IHR (2005) is, in effect, a dispute about application of the WHO Constitution. But such a position would
likely face the counterargument that IHR-based claims do not sufficiently concern interpretation or
application of the WHO Constitution to lie in the ambit of Article 75.

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Some legal analysts suggest that the United States may have a stronger case for ICJ jurisdiction under
Article 75 if it alleged that China violated provisions of the WHO Constitution rather than IHR (2005).
For example, observers have discussed whether China’s COVID-19 response implicates the following
provisions of the WHO Constitution:
 Article 37, which states that each WHO member country “undertakes to respect the
exclusively international character of the [WHO] Director-General and the [WHO] staff
and not to seek to influence them.”
 Article 63, which requires WHO member countries to “communicate promptly to the
[WHO] … official reports and statistics pertaining to health which have been published in
the State concerned.”
 Article 64, which provides, “Each Member shall provide statistical and epidemiological
reports in a manner to be determined by the [World] Health Assembly.”
 The general international legal obligations (reflected in the Vienna Convention on the
Law of Treaties) to carry out the WHO Convention in good faith and not defeat its object
and purpose.
Whether the United States or another country could invoke the ICJ’s jurisdiction based on these
requirements is a fact-dependent issue. Given the strictures of Article 75 and barriers to the ICJ’s
compulsory jurisdiction, some observers advocate for alternative forms of accountability, such as
reforming the IHR (2005) to create stronger enforcement mechanisms in the regulations themselves.
Other observers have examined whether Article 75’s grant of compulsory jurisdiction is so narrow that
pursuing an “advisory opinion” from the ICJ is a more plausible option. Unlike judgments arising from
Article 75, advisory opinions are not legally binding—although they may aid in clarifying international
law. Individual countries such as the United States may not unilaterally request an advisory opinion from
the ICJ. But the U.N. General Assembly, U.N. Security Council, and certain other international bodies,
including WHO, may request them for some questions. WHO has previously requested at least two
advisory opinions from the ICJ: Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt in 1980 and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Nuclear
Weapons Advisory Opinion) in 1996.
The ICJ’s jurisdiction to hear a WHO-requested advisory opinion has limitations. Under WHO’s
international agreement with the U.N., WHO may request advisory opinions only “on legal questions
arising within the scope of its competence[.]” And the U.N. Charter requires advisory opinion requests
from specialized agencies, such as WHO, to concern legal questions within the scope of the agency’s
activities. In Nuclear Weapons Advisory Opinion, for example, the ICJ declined to provide an answer to
WHO’s question on whether use of nuclear weapons during an armed conflict would violate the WHO
Constitution and other forms of international law. According to the ICJ, WHO’s functions as a specialized
health agency did not have a sufficient connection with the legality of the use of nuclear weapons to
satisfy the jurisdictional requirements for the court to exercise advisory jurisdiction.
Would U.S. Withdrawal from WHO Affect a Suit in the ICJ?
The United States recently sent a letter formally notifying the U.N. Secretary-General, the depository for
the WHO Constitution, of the United States’ intent to withdraw from the WHO. According to the Office
of the U.N. Secretary General, the letter states the withdrawal will be effective July 6, 2021. As discussed
in this CRS Legal Sidebar, a joint resolution in U.S law appears to require the President to give one-year
advance notice before withdrawal is effective. As such, the United States remains a party to the WHO
Constitution until its withdrawal is complete. Under ICJ jurisprudence, the court’s jurisdiction is
determined at the time of filing and, once established, is not terminated by withdrawal from the

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jurisdiction-creating instrument. Accordingly, if the United States were to use the WHO Constitution to
invoke the ICJ’s compulsory jurisdiction before July 6, 2021, the case could still proceed even after
withdrawal is effective.
Is China Responsible for Damages Caused by COVID-19’s Spread?
Legal observers disagree on whether international law would require China to pay damages if China did
not comply with IHR (2005). Neither IHR (2005) nor the WHO Constitution expressly requires payment
of compensation to foreign countries for damages caused by the spread of an infectious disease. But
customary international law, which is derived from countries’ general and consistent practice followed out
of a sense of legal obligation, provides some secondary rules on the issue. One potentially relevant source
of rules for customary international law is the Draft Articles on State Responsibility for Internationally
Wrongful Acts (Draft Articles) prepared by the International Law Commission, a U.N.-based body
charged with the codification and “progressive development” of international law. The Draft Articles are
not a binding international agreement, and countries do not fully agree on how much they reflect
customary international law. But the ICJ has cited certain articles as representing agreed-upon rules of
customary international law.
The Draft Articles provide general standards for evaluating when a country bears international legal
responsibility for certain “wrongful acts.” “Wrongful acts” are acts or omissions that are “attributable to
the state under international law” and that constitute “a breach of an international obligation.” According
to the Draft Articles, when an organ of a country’s government commits a wrongful act, the country is
obligated to, among other things, “make full reparation for the injury caused by the internationally
wrongful act.” Reparation includes restitution (“re-establish[ing] the situation that existed before the
wrongful act”) and compensation for the damage, including any financially assessable damage. Article 39
of the Draft Articles provides that damages must take into account any willful or negligent conduct by the
injured country that contributed to its own harm.
Some observers argue that, under this legal framework, China may be liable for monetary damages
resulting from COVID-19’s spread. Others disagree, citing a lack of historical precedent for seeking
damages from the spread of infectious diseases and the challenge of proving causation under the
principles of state responsibility. According to the International Law Commission’s commentary on the
Draft Articles, there must be a causal link between the alleged wrongful act and the injury. The
commentary states that, for an injured state to obtain reparation and compensation, an injury must be
“ascribable to the wrongful act rather than any and all consequences flowing from an internationally
wrongful act.” Under this reasoning, the Draft Articles would likely not render China responsible for “any
and all” financial damages caused by COVID-19’s spread. If China has international legal responsibility,
damages would likely be limited to harm causally connected to China’s alleged failure to notify WHO of
the COVID-19 outbreak within IHR (2005)’s prescribed time frame. Separating what damages stem from
China’s alleged delayed reporting and what harms arose because of the disease’s inherently infectious
nature may present complexities if the United States or another country were to pursue a claim in an
international forum.
Finally, while the Draft Articles may supply standards for evaluating international legal
responsibility for monetary damages, neither the Draft Articles nor customary international law
in general create jurisdiction in an international forum. International agreements, rather than
customary international law, normally provide international courts with jurisdiction over cases
against countries. A country pursuing a claim against China in an international forum would need
to identify a jurisdictional basis on which the forum can hear the dispute and evaluate claims for
damages.

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Author Information

Stephen P. Mulligan

Legislative Attorney

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