Introduction
COVID-19 changed everything. Effort to prevent and contain the spread of the virus has caused the world to change. COVID-19 had far reaching economic and social consequences which stunned the rate of globalization.
The COVID-19 pandemic has caused a near standstill in the global economic activity and a financial crisis with yet unforeseen consequences. World economies are in shambles, but when the dust settles fingers will be pointed and responsibility strictly apportioned. One would be able to foresee the issue of China's legal liability for the COVID-19 outbreak. In particular, the United States of America (USA) filed a $20 trillion lawsuit – an amount larger than China’s GDP – against Chinese authorities to seek reparation for economic harm.
Under the immense human and economic loss caused by the COVID-19 pandemic, do they have any basis for filing a lawsuit? With the current state of international law, is the claimant State required to prove negligence or breach of an international legal duty to receive any compensation from China?
According to the fundamental principles of international law, a State breaches its international responsibility when it violates international obligations or intentionally commits a wrongful act. Thus, the claimant State should prove that China has violated its international obligations. In this case, only an internationally wrongful act such as the breach of an international treaty or the violation of another state’s territory will be taken into consideration. With regards to the pandemic, China has not breached any general legal duty or obligation. (You may want to refer to the UN Charter - it will list what States can/cannot do)
Hence, the question is which court has the competence and jurisdiction to deal with the international responsibility of the Chinese Government. There are three possible scenarios for a lawsuit against China.
Possible scenarios
First of all, a lawsuit can be bought in the national courts. At least six class action lawsuits have been filed against the Chinese government and governmental departments in the federal U.S. courts. The lawsuits are concerned with COVID-19 related losses, death and injuries. Nevertheless, law professor Stephen L. Carter from Yale University and several other jurists question the legal liability of these class action suits since it is hard to prove and there is no basis for the American courts to have jurisdiction. Professor Carter explains that Nation-states are immune from such lawsuits.[1]
In accordance with the principles of international law, the national courts are not competent to entertain an international dispute between states. As mentioned above, the individual complaints in domestic courts have no legal basis. Hence, China can invoke its immunity from such jurisdiction. In a case where any local court made a judicial decision in this matter and ordered compensation from China, that decision would not be enforceable.
Moreover, the judicial doctrine called “sovereign immunity” or “state immunity” offers foreign governments a protection against prosecution in American courts. The doctrine protects the Chinese government or its political subdivisions, departments, and agencies from being sued without its consent in any country including in the United States.
Therefore, domestic laws, barring all its other benefits, are unsuited for this task for the principle of sovereign immunity, which prevents local courts from ruling on the acts of foreign governments. Sovereign immunity is not a favor courts do for foreign regimes. It’s an act of reciprocity, a peace treaty resting on a shared understanding. So broad is the traditional doctrine that a British court held in 1894 that even if a foreign ruler moves into one’s country, takes on an assumed name and conceals his true position and enters into a contract, a lawsuit against him for breach is still barred.
For the lack of enforceability, we must redirect our attention to supranational legal frameworks for remedies and solutions to this precarious inquiry. Unlike national courts, China would not be protected by sovereign immunity before an international court.
International Health Regulations, 2005
After the spread of SARS in 2003, the World Health Organization (WHO) adopted an International Health Regulation (IHR) by making member countries accountable to counter such global pandemic. Article 6 mandates each member country to “notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information.” Further, Article 7 goes on to state that if a country “has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, it shall provide to WHO all relevant public health information.” These regulations are further fortified by Articles 11 and 12 of IHR which requires the WHO to share such verified data with other countries so that they can enact precautionary measures.
Some alleged that China not only failed on both counts, but also censored, misled and suppressed information from the media and WHO, about novel coronavirus and its effects. Moreover, China portrayed COVID-19 as a new form of Pneumonia that could not be transferred from one human to another, which was later admitted by Chinese authorities as otherwise. Collectively, these actions made it difficult for countries around the world to adequately prepare for this deadly virus leading to colossal damages to the nation's finance and health of its citizens.
Although China has admitted there were early missteps and underestimation of public risks during the initial stage, it had quickly acted to inform the WHO and scientists in the United States soon after. China’s Global Times said :“This miscalculation did not hinder the communication between Chinese and foreign scientists. All data were sent out, including a thesis by Chinese scholars in international academic journals”.[2] On the 20th January of 2020, China made public its findings on human-to-human transmissions. Global Times argued: “At the global level, the time lost could have been compensated by taking resolute measures. This was especially true for those countries far from China.”
Thus, in order to solve the legal dispute, a lawsuit could be brought in the International Court of Justice (ICJ). The ICJ is one of the principal judicial bodies of the United Nations for settling disputes between states. For a court to be competent for settling this claim, the court must obtain the consent of the adverse countries to resolve their differences. In this case, neither China nor the United States recognizes the jurisdiction of the court, so the ICJ has no competence to render a judicial decision for this possible lawsuit.
Some jurists think that it is not worth bringing an action against China in the ICJ.[3] The ICJ can only exercise its jurisdiction when a State has given its consent, which is not the case. The reason why consent is important is because the international legal system operates on state sovereignty which is recognized in the UN Charter.[4] Alexander and others are of the opinion that rendering an advisory opinion of the ICJ could offer a safer and more advantageous option. Consent from the disputant parties is not necessary for invoking the advisory jurisdiction of the ICJ.[5] Even though an advisory opinion from the ICJ is not legally binding, it could nevertheless help to set a precedent for the international community which would help to regulate the conduct of states. This would aid states to participate proactively in the fruitful functioning of the United Nations system, says Alexander.[6]
The third option is the UN Security Council which has the power under the International Criminal Court’s (ICC) Rome Statute to refer cases to the ICC or adapt a resolution against China based on its “primary responsibility for the maintenance of international peace and security.” In this case, China could use its right to veto because the Security Council’s veto power is granted solely to the Security Council’s five permanent members: the United States, China, France, the United Kingdom, and Russia.
Is it possible for these countries to win the case? What would be a reasonable reaction to the Chinese government? Legally speaking, each type of national or international court has its own jurisdiction, which means that it has the authority to decide specific types of cases. Any individual or government could file a lawsuit against the Chinese government seeking remedies for causing the COVID-19 pandemic. Nevertheless, based on the principles of international law, it seems that there is no national or international court competent to bring a claim against China. Essentially, without China’s cooperation, it is extremely unlikely that it will be forced to pay any compensation for the COVID-19 pandemic. Ultimately, focusing on efforts to blame China risks detracting attention and efforts that are otherwise urgently needed to respond to the crisis.
Conclusion
Judicial action against China is not an immediate response for the pandemic crises that are affecting all of humanity in the world. The principle of cooperation has been considered as one of the cornerstones of international law. According to this principle, all states have an obligation to cooperate in such a situation collectively. As such, the World Health Organization (WHO) plays a vital role in the matter.
It is also necessary to show solidarity in fighting COVID-19, especially to countries which have been affected the most. A very good example of solidarity is the Coronavirus Global Response.[7] This pledging event was convened on May 4, 2020. The event was started with the objective of raising funding for the development and universal deployment of diagnostics, vaccines and treatments against COVID-19. The initiative has been co-convened by several countries, including the EU, Germany, France, Norway, the United Kingdom, Spain, Italy, Japan, the Kingdom of Saudi Arabia and Canada.The donors have raised €7,4 billion in pledges.[8]
[1]https://www.bloomberg.com/opinion/articles/2020-03-24/can-china-be-sued-over-the-coronavirus
[2] https://www.globaltimes.cn/content/1186214.shtml
[3]https://www.chinadaily.com.cn/a/202004/09/WS5e8ec46aa3105d50a3d15041.html
[4]Article 2(1) of UN Charter
[5] https://www.jurist.org/commentary/2020/04/atul-alexander-icj-covid/
[6]ibid.
[7]https://global-response.europa.eu/index_en
[8] https://audiovisual.ec.europa.eu/en/topnews/M-004725
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