This article is part of the series Governance, in crisis.
Esraa Adnan Fangary
Teaching assistant, International Law Department, South Valley University
Ph.D. Visiting Researcher, University of Missouri-Kansas City, School of Law
Synopsis: The COVID-19 crisis has further underscored the importance of the notification imperative as a part of the international transparency principle. I demonstrate the legal consequences of its infringement and explore the possible role of the ICJ to ensure the enforcement of that obligation.
Keywords: COVID-19, notification, transparency, Middle East, International Court of Justice (ICJ), World Health Organization (WHO)
The Middle East has not learned the lesson from China
Commentators have alleged that some states have lied about the situation of COVID-19 – as in the case of China and the number of cases informed to the World Health Organization (WHO) – what defiantly constitutes a danger and threat to the international community broadly. Unfortunately, many states in the Middle East continue to spread and notify false information about their COVID-19 cases.
For instance, Algeria has focused more on public-opinion surveillance and controlling information than on the response to the pandemic. Similar trajectories can also be seen in Iran, where the regime has sought to tighten control over the spread of information about COVID-19 within their borders and to minimize knowledge of any possible regime-threatening issue. While Iran might have had the financial resources and state capacity to respond to COVID-19 more effectively in ordinary times, the punitive measures imposed by the United States after its withdrawal from the nuclear deal have hit Iran’s economy and its ability to import the needed goods from abroad.
Unfortunately, most MENA states are suffering from non-transparency in public decisions that undermine their perceived legitimacy and democratic principles. Surprisingly, MENA governments are so worried about COVID-19 rumors that they have all imposed legal penalties like imprisonment and flogging for anyone who tries to spread incorrect information about the disease. This creates the opportunity for arbitrary repression and for authoritarian governments to tighten their control of freedom of speech and expression, as there is no guarantee that such measures would be removed once the health crisis ends.
I examine whether it is possible for the WHO or other states affected by such misinformation about the reality of COVID-19 cases to seek legal recourse before the ICJ, and whether there is a jurisdictional basis related to the breach of the 2005 International Health Regulations (IHRs) notification requirements. The controversial issue, according to IHRs, is that the WHO’s own access to information policy restricts the disclosure of information that “may adversely affect the relationship of the WHO with a Member State or other intergovernmental organization” seemingly without any concern of the public interest. This has led to significant discrepancies and ambiguity between states in disclosures on mortality rates, using various definitions and reporting criteria.
The notification obligation in light of international law
Per the IHRs, the overarching obligation to notify is stated in Article 6 and Article 7 of IHRs, which stress that late notification and/or omission of critical information constitutes a violation of the international transparency and the notification obligation.
The Convention on Early Notification of a Nuclear Accident – issued in 1986 – creates a strict obligation upon states to inform and notify immediately other states following emergency or accident. This obligation institutes a basis or a model that can be followed in the health domain. The information cooperation principle can be an initial benchmark – along with other international regimes – for demanding notification, especially to issues that can have transboundary effects for neighboring countries.
Form another perspective, the misleading or false information issued from states that threaten the safety and the public health of other states constitutes an international responsibility for harm. This point of view is supported by Articles 31and 36 of the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which provide the obligation of full reparation for any damage caused by an internationally wrongful act, whether it is material or moral.
The ICJ’s jurisprudence on the reparation of violating notification obligation
Reparation is a general term for varied measures to remedy or correct the violation of an international obligation. There are different forms of reparation in the context of international accountability, however, I argue that three of them – compensation, satisfaction, and guarantees of non-repetition – can be applied concerning the breach of the obligation to notify during the COVID-19 pandemic.
According to ICJ’s case law, the ICJ required only in one case related to the violation of the notification obligation that a state had to pay compensation. In others, the ICJ preferred “satisfaction” which may take the form of an acknowledgment of the violation, an expression of regret, a formal apology or some other suitable procedures, as a form of reparation. To obtain reparation, the violation-injury causation has to be proven, in other words, there must be a sufficient causal connection between the omission to notify and the harm to the injured state.
Remarkably, the ICJ’s interpretation of the consular notification obligation in the LaGrand case can be applied in the 2005 IHR, although it is substantially different from the supposed omission or the lack of transparency on the actual outbreak of COVID-19. Under Article 6 of IHR, the requisite of notification reflects on international cooperation since the information provided by the knowledgeable state allows other states to jointly assess and coordinate their actions.
Methods of evidence
The claimant can use all methods of evidence available to prove a state’s knowledge, which means that the plaintiff should be allowed all forms of recourse (material/ digital) to inferences of circumstantial evidence, given the difficulty to establish the negative omission and its consequences (see, for example, the Corfu Channel case). Furthermore, refusal to share true information and ignoring the obligation to notify the others of such danger create international responsibility for damage and loss caused by this risky situation. The absence of clear ICJ rules and procedures for digital proof is not inherently an obstacle to its evaluation and production before the ICJ, as the general rules of evidence may also apply to digital proof.
Dispute settlement systems can depoliticize the enforcement of international obligations, therefore, these systems can probably apply in cases of falsifying evidence related to the COVID-19 pandemic. Providing the scant precedent before ICJ for successfully obtaining compensation, litigation can trigger economic backlash, as the claimant would need to gather proof and to use considerable technical and material resources which might be better invested in protection efforts to address coronavirus-related issues.
Without discounting the role of “information clearinghouse”, the COVID-19 crisis demonstrates that the WHO and injured states have limited recourse against non-transparent uncooperative states. Problematically, the fulfillment of the WHO’s duties remains highly dependent on data received by states. Such obligation further entails solidarity, and cooperation between Member States implementing health rules, grounded on accurate, trusted, and complete information verified by the WHO.