The COVID-19 crisis has underscored the importance of the notification imperative. I demonstrate the legal consequences of its infringement and explore the possible role of the ICJ to ensure the enforcement of that obligation
This article is part of the series Governance, in crisis.
By Esraa Adnan Fangary
Teaching assistant, International Law Department, South Valley University
Ph.D. Visiting Researcher, University of Missouri-Kansas City, School of Law
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.
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.
This is an excerpt. To read the full article, visit The Global.
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