THE CLUTCHES OF CORONAVIRUS ON THE WORLD HEALTH ORGANISATION
In the wake of the Covid-19 Pandemic, the issues surrounding International Organizations and the debates lying at the heart of such issues have been raked up. This new context to these debates, which have also taken a fiercer form, is important as the world transitions through the checkpoints of both globalization and monism.
There is an increasing acceptance of the opinions or versions that paint the pandemic as a biological weapon or a means to thwart the world economic order ‘manufactured’ by China. While this remains a conspiracy theory for some, it becomes a matter of grave significance and a potential threat for others given the lack of transparency, multiplicity of the accounts surrounding the outbreak of the pandemic and the general ambiguity within the current world order to hold a state accountable, if at all it is the perpetrator.
There is a growing concern among the states that the outbreak of the virus is an intentional and planned infusion by China for its various sinister purposes that it has seemingly managed to achieve. In light thereof, individuals, states and organizations have begun to file suits in courts of law in order to investigate the outbreak, hold China accountable, seek reparations, and for other similar redressals. A few among these plethoras of lawsuits are the suits in the United States District Court for the Northern District of Texas and in the UNHRC, filed by the International Council of Jurists and All India Bar Association, seeking unspecified amounts of reparations from China for its alleged mischief.
While these are actions taken by states, with specific prayers and reliefs sought for themselves in the suits, the role that international organizations play in such a context is of paramount importance. For one, they have an unparalleled potential to represent the collective interest of state parties, whether they are in the form of underlying objectives of their establishment or as and when they are voted on. Moreover, they are endowed with certain powers and responsibilities, with the consent of state parties keeping in mind their significance, that they ought to fulfil in specific situations.
Since the Pandemic primarily affects the issue of public health, it directly falls within the mandate of the World Health Organization (hereinafter WHO). The WHO is a specialized agency for promotion and protection of health has certain clearly laid down functions, inter alia, under Articles 2, 18 and 28 and various powers enumerated in Articles 21, 23, etc. of its constitution. One of the important functions, mentioned in its constitution under Article 28(i), is that it has to take emergency measures within its powers to deal with events requiring immediate action.
Unlike most of the other functions, the function highlights the suo motu actions that need to be taken by the organization in case of an emergency, such as a pandemic. The phrase ‘immediate action’ emphasizes the peculiarity and gravity of the matter as well as the corresponding significance attached to the actions that need to be taken.
It is in light of this function perhaps that the world at large, and some countries rather specifically, are blaming the WHO for its inaction and mismanagement of the crisis. The question whether the WHO can, in fact, be held responsible for not carrying out its responsibilities as per its mandate, needs to be evaluated within the broad framework of international law surrounding the characteristics and capabilities of International Organizations.
The foremost requirement of the personality of an organization, owing to which it can exercise its powers independently and can also be held accountable for its actions, has been dealt with by the ICJ in the Advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations. Though in the present advisory opinion, the court focuses on the United Nations and its Charter to answer the questions raised, the reasoning adopted by the court can be extended to other organizations in pari materia. The international personality of an organization can be affirmed if its charter provided for and conferred upon the organization rights and obligations independent of its member states. This ‘objective’ international personality enables the organization to operate in an international plane and gives it a right to bring about claims for reparation against states, whether or not they are members of that organization.
In accordance with Article 3 of the Draft Articles for Responsibility of International Organizations, “Every internationally wrongful act of an international organization entails the international responsibility of that organization.”. Further, Article 4 lays down that any act or omission amounting to a breach of an obligation of the international organization constitutes an internationally wrongful act for which the organization entails responsibility under Article 3. The obligation in the current context of WHO’s responsibility is under Article 28(i) of its constitution, as also discussed above.
The International Court of Justice noted in its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, that international organizations are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.
However, in accordance with the Convention on the Privileges and Immunities of the Specialized Agencies, the immunities and privileges afforded to the UN in the original text have been extended to its specialized agencies also. WHO, having adopted this convention in its First World Health Assembly, embodies the juridical personality, by virtue of which it has the capacity to institute legal proceedings. But it does not refer to the viability of claims against such international organizations and WHO specifically. Only under section 4, it is enumerated that the organizations enjoy immunity from “every form of legal process” unless it chooses to waive the said immunity.
Also, in accordance with Article 34 of the Statute of the International Court of Justice, states are not allowed to bring international organizations before the ICJ and vice versa. In the advisory opinion of the International Court of Justice on Difference Relating to Immunity from the Legal Process of a Special Rapporteur of the Commission on Human Rights, only the issue of compensation for damage has been excluded from the aspect of immunity from legal process by the court.
It has been argued that this lack of direct remedial actions needs to be reconsidered and rectified in order to construct a responsibility regime around the conduct of international organizations. What is a settled position of law is that international organizations are subjects of international law, at par with other actors such as the states. In light thereof, claims against them in the courts of law or other enforcement bodies accounts for substantial ponderance and reconsideration as we move towards an integrated legal system at the international level. The standards of immunity afforded to the international organizations are also under continuous scrutiny and therefore, the proceedings instituted against the WHO for its response to the COVID-19 crisis are being accepted, as China also comes under the radar of legal proceedings for its alleged spread of the Coronavirus.
The author is a 3rd year Law student at Maharashtra National Law University, Mumbai.