Category Archives: WHO

A democratic biopolitics, anyone?

The notion of biopolitics – democratic or otherwise –often enough proceeds from the assumption that there really is no such thing as a jurally-delimited “public interest” that the state is supposed to pursue; such delimited public interest recognizes that there are a great many human responsibilities/relations/communities/associations that are outside the sphere of the political, and that are ontologically distinct from that occupied by the state.

Leftist/Marxist accounts of the state begin by expressly rejecting any notion of a telos for the political, only to proceed with a critique of the state that implicitly assumes there is such a thing. Dooyeweerd calls this “a state without a state-idea.”

Just consider the deployment of the democratic as a proposed curtailment of biopolitics.

In any case, a jurally delimited notion of the public interest would critique biopolitics as a reductionist, if expansive, sphere of the political (defined as state power). In reformational philosophical terms, the human is not/cannot be defined by any of its relations; the human transcends all of the aspects of reality. The human is only defined by its relation to the Origin.

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Filed under Agamben, Carl Schmitt, COVID-19, legal theory, political theology, Politics, Principled Pluralism, Public Interest, reformational philosophy, State

Suing China before the ICJ over COVID-19

Peter Tzeng of Foley & Hoag (the law firm behind our victory against China in the SCS arbitration) writes this excellent thought piece on suing China before the International Court of Justice.

We all know China’s usual stance on international litigation” : stay away from it, when it goes against your interest. And because state-to-state litigation in international law is pretty much a mirror of its largely consent-based system, the challenge is to find exceptional grounds against the general rule.

Here Tzeng discusses possible grounds for compulsory jurisdiction within the World Health Organization Charter, notably Article 75, which provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice. He links here too an opinion piece I wrote on the question last March 22 for the Philippine Daily Inquirer, pointing to China’s abject failure to provide timely notification on the outbreak under the World Health Organization International Health Regulations (2005).

I would add a “catch-all” (and admittedly novel) argument to his proposal, under the law of state responsibility: that given the scale and effects of this pandemic — nearly all 193 countries affected, so far — perhaps an argument can be made from general international law that China has no choice but to arbitrate (cf Art. 42 of the ARSIWA).

The safety, security and health of the world is a fundamental and common interest of nations that a breach in IHR (2005) obligations triggers compulsory jurisdiction.

After all, its intentional and willing breach of such obligations under Art. 6 and 7, given the nature of the contagion, resulted in mass deaths around the world, and counting, not to mention massive disruptions in the economic, social, political, and religious life of billions around the world.

I will expound on this approach in another post.

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Filed under China, COVID-19, International Court of Justice, International Law, South China Sea, State, State Responsibility, Uncategorized, WHO