Recently, on the issue of the COVID-19, the multilateral litigations have been filed against China by the US, Germany and India-thereby accusing Beijing of violating its obligations under the Biological Weapons Convention (BWC) and the WHO Regulation IHR- 2005. The US state of Missouri has been the first to sue the Chinese government over the coronavirus pandemic last Thursday, followed by Mississippi, saying that China’s response to the outbreak that originated in the city of Wuhan brought devastating economic losses to the state. The truth is that the international law or international justice has no place for hypothecation, prejudice or conspiracy-based theories/allegations. Fairly speaking, all of the likely arguments so far framed have one thing in common: they fail to identify a jurisdictional basis for an international court or tribunal to hold China responsible for these violations. The argument that China could or should be sued for the enormous damages they caused to the world holds no substantial basis.
First: the Missouri civil lawsuit, filed in federal court by Missouri Attorney General Eric Schmitt, alleges negligence, among other claims. It says Missouri and its residents suffered possibly tens of billions of dollars in economic damages and seeks cash compensation. “The Chinese government lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease,” Schmitt, a Republican, said in a statement. One lawsuit filed in Florida by the Berman Law Group March 13 seeks Chinese compensation for American citizens and businesses that suffered trillions of dollars in damages. A Las Vegas law firm, Eglet Adams, filed a class-action lawsuit against the Chinese government on behalf of small businesses in late March.
Second: The International Council of Jurists (ICJ) and All India Bar Association (AIBA) have mutually filed a complaint in the UNHRC seeking unspecified amount as reparations from China over the global spread of coronavirus. The petition filed accused China of inaction and negligence on spreading the virus worldwide and alleged that the country had violated International Health Regulations (IHR), and International Human Rights and as also International Humanitarian Laws and ”UDHR clauses”. As per the filed petition, COVID-19 pandemic was a “conspiracy of Chinese government aimed at catapulting itself to the position of a superpower of the World and undermining other countries through biological warfare.”
Under the Foreign Sovereign Immunities Act, foreign states are immune from U.S. prosecution. Missouri is trying to avoid this obstacle to its case by suing the Communist Party of China, rather than the People’s Republic of China
Third: Germany’s tabloid newspaper named Bild in an article titled “What China owes us,” the newspaper created an invoice of Euro 150 billion damages from the pandemic. The said list of damages included €24 billion in lost tourism revenue from March to April, €7.2 billion in losses for the German film industry, €1 million per hour in costs for the airline group Lufthansa, and €50 billion in lost profits for German small businesses.. Responding to the article, the Chinese Embassy in Berlin said it “stirs up nationalism, prejudice, xenophobia, and hostility to China”.
Fourth: A new lawsuit has been filed by Freedom Watch Founder Larry Klayman [PDF] with the International Criminal Court (ICC), arguing coronavirus is a bioweapon. The theory has already been debunked in the past by a paper published in the New England Journal of Medicine, but the argument is still consistently put forward. The argument that coronavirus is a biological weapon carries little merit as scientific papers have already evaluated the structure of the virus and linked it to a specific species of bats.
Holistically, the role being played by international law seems very multifaceted vis-à-vis the coronavirus crisis since it entails the dynamics within the broad spectrum that includes international health law (IHR-2005), human rights law, international trade law, international peace and security and development finance. Yet given the overriding influence of geopolitical intricacies driven by the interstate relations – the scope of all these litigations against China seems very symbolic and narrowing.
Academically speaking, the more difficult question is this: how can a State frame its complaint about China’s conduct as one concerning the interpretation or application of the WHO Constitution? The WHO Constitution does not appear to contain substantive obligations of the international health law. Rather, as its name suggests, it is primarily concerned with establishing a constitutional framework, dealing with matters such as membership and institutional structure. All this said, there appear to be a few claims concerning the interpretation or application of the WHO Constitution that a State could potentially lodge against China.
As for the Missouri state case, the complaint is based on Estimating that the damages to Missouri and its residents could cost perhaps tens of billions, the state is seeking reimbursement from China for its costs to address the pandemic and compensatory damages for China’s “abnormally dangerous activities. “The 47-page lawsuit from Missouri also alleges China destroyed medical research and hoarded personal protective equipment, and claims China allowed people to leave Wuhan despite knowing about the virus.” China has described the Missouri lawsuit as very absurd. In any case, the suit faces an uphill battle in the courts. Under the Foreign Sovereign Immunities Act, foreign states are immune from U.S. prosecution. Missouri is trying to avoid this obstacle to its case by suing the Communist Party of China, rather than the People’s Republic of China.
Clearly under the US law, also endorsed by international law, a foreign state or an agency or instrumentality of a foreign state cannot be sued in a national court. The U.S. Foreign Sovereign Immunities Act (FSIA) states that a U.S. court does not have jurisdiction over the activities of a foreign state, with very few exceptions. It’s unclear whether the Missouri lawsuit will have much if any impact. U.S. law generally prohibits lawsuits against other countries with few exceptions, said Chimène Keitner, an international law professor at the University of California, Hastings College of the Law. “The legal problem is, it’s just not possible,” said Keitner, who recently wrote a blog titled “Don’t Bother Suing China for Coronavirus. Missouri Democratic party executive director, Lauren Gepford, called the lawsuit a stunt by a Republican attorney general who is up for re-election this year. And yet, the most irrefutable fact is that: suing a government is different than suing private individuals or companies. The first and foremost hurdle is the legal principle, often called sovereign or state immunity, that a government cannot be sued without its consent.
Another similar argument holds: “You’re looking at a lawsuit that has almost zero chance of surviving the very first jurisdictional hurdle,” she said. Without a way to overcome the sovereign immunity issues, the lawsuits are “largely symbolic,” explained Maria Glover, a Georgetown University law professor. Without a way to overcome the sovereign immunity issues, the lawsuits are “largely symbolic,” Glover added.
To be continued
The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan