Can the WHO’s study on COVID-19 underpin legal action against China?

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For some time now, commentators have raised the possibility of international legal proceedings against China over COVID-19, in particular concerning its belated communication of COVID-related information to the World Health Organisation (WHO) in late 2019. On 14 January, a team of health experts commissioned by the WHO for a Global Study of the Origins of SARS-CoV-2 arrived in Wuhan, China, for a site visit and are currently in a two-week quarantine. While the Study has a scientific mission, it could also be significant for international adjudication. As I have argued elsewhere, if a state decides to file suit after negotiations and a settlement attempt by the World Health Assembly (the WHO’s decision-making body) have proved unsuccessful, the International Court of Justice (ICJ) would likely have jurisdiction pursuant to Article 75 of the WHO’s Constitution (Constitution). However, can such violations of international law also be proved?

States’ information-sharing obligations

International law instruments contain information-sharing obligations which help to enable the WHO to declare a public health emergency of international concern (PHEIC) and recommend states to take certain actions when needed. These obligations could provide an avenue for the establishment of China’s international responsibility. According to Articles 63 and 64 of the WHO’s constitution, states parties “shall communicate promptly to the [WHO] 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.” The Assembly subsequently adopted the International Health Regulations 2005 (IHR). Articles 6 and 7 of IHR provide the timeline for sharing the aforementioned information, in particular 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].” Annex 2 to the IHR contains a binding decision-making scheme for assessing the need to inform the WHO.

The COVID study’s origin and mandate

Questions over the origins of the coronavirus persist. In May 2020, the Assembly (including China) called on the WHO Director-General “to identify the zoonotic source of the virus and the route of introduction to the human population, including the possible role of intermediate hosts, […] through efforts such as scientific and collaborative field missions” (Article 9(6) WHA Resolution 73.1). Relatedly, the Assembly instructed the WHO continue to work closely with the World Organisation for Animal Health (OIE), the Food and Agriculture Organisation of the United Nations (FAO) and countries, “as part of the One-Health Approach.” The WHO-led Study was subsequently established to coordinate research, create a research plan and organise a site visit to China.

According to the Study’s terms of reference, its short-term descriptive epidemiological study is to review “hospital records for cases compatible with COVID-19 before December [2019]”, “surveillance trends for disease in the months preceding the outbreak” and “trends of all-cause mortality, and […] death registers for specific causes of death compatible with COVID-19.” It will also perform “[i]n-depth interviews and reviews of currently identified early cases and potentially earlier cases,” and conduct “[s]erological studies based on stored blood/serum samples collected in weeks and months before December 2019.” In addition, the short-term Animals, Products and Environmental Study lists the “[t]esting of frozen sewage samples for evidence of circulation prior to December 2019.” The Study’s long-term agenda “may include” various “in-depth epidemiologic, virologic, serologic assessments in humans […] as informed by the initial short-term studies and other international findings.”

Probative force

Fabian Leendertz, a member of the Study’s expert team, told the Financial Times (17 December 2020) that the Study is “really not about finding a guilty country.” And yet, while the probe’s phases have not yet been delimited, its findings could be relevant to future legal proceedings. They could tell us when doctors in Wuhan became aware of unusual health trends, how unusual they were and when they were communicated to the authorities. They could even give rise to a reconstruction of what Chinese officials knew and when. This in turn could facilitate a legal analysis of whether China promptly shared information with the WHO, as required under international law.

In fact, striking about ICJ proceedings is the virtually unlimited admissibility of evidence. If the Study’s findings become public, these could be produced as evidence before the ICJ. The real issue, however, is their probative force. The Court has in past cases – for example, the Armed Activities and Bosnia Genocide cases – assessed international reports produced by the UN Security Council, UN Special Rapporteurs, the African Union and the Conference for Security and Cooperation in Europe and others. Many were found to have probative value. However, there are limitations. China is likely to object to the use of the Study’s findings, which would make the Court more reluctant to rely on it. The Court has at times refused to accept conclusions drawn in UN reports, even if in case of scientific findings such a refusal increases the challenges for a bench with exclusively legal training.

In addition, disputing parties might commission and submit reports based on the Study’s work that focus on legally relevant questions. The Court is quite skeptical of evidence produced specially for legal proceedings. Furthermore, who may legitimately opine on China’s internal medical and administrative dynamics, a foreign expert or China itself? Whether the Study’s findings and subsequent interpretations thereof suffice to discharge the burden of proof would largely depend on the strength of its conclusions and the availability of corroborative evidence, particularly in light of the Court’s notoriously varying standards of proof.

Risks to the study’s reliability

Apart from uncertainties relating to the Court’s assessment of its findings, the Global Study itself could be subject to interference, thereby diminishing its evidentiary value. Its mandate appears surprisingly invasive for an international study conducting research in and on China. That some of its findings could be used ‘against’ China in international legal proceedings and political processes creates a major disincentive for cooperation. China’s reticence has in fact already been on display. In August 2020, a two-member WHO advance team did not visit Wuhan but remained in Beijing for three weeks, leading to fierce criticism from US and Australian officials. In the first week of 2021, some members of the Study’s expert team were denied entry to China, leading the WHO Director-General to state that he was “very disappointed” in China. A Chinese spokesperson meanwhile indicated that the state and the WHO were still negotiating the dates and itinerary of the visit.

The team that is now in China may produce findings that can be used as evidence in future ICJ adjudication. Much of their probative strength depends on the Study’s uninterrupted work, the research outcomes and the form in which they would be introduced before the ICJ. While there is a risk of interference with the Study, it could also improve the chances of legal actions over the handling of the early coronavirus outbreak.

Mike Videler is a PhD researcher at the Law Department of the European University Institute. His PhD project examines the fact-finding process in international courts and tribunals. He teaches law at HEC Paris and worked as a Lantos Fellow in the US Congress. His research interests span international dispute settlement, legal theory, international economic law, and transitional justice.

This blog post is part of a research project funded by an EUI Research Council grant.