As countries begin to come to terms with the extent of the challenge posed by the coronavirus, people across the globe are demanding answers. With serious questions being asked of governments and international bodies, demands for accountability and damage assessment are growing louder by the day.
While the true cost of this crisis–the loss of life and the projected economic devastation–seem immeasurable right now, what can be counted is the money that governments have already spent to combat it. According to IMF estimates, the total money spent by governments amounts to a staggering $6.5 trillion and the loss to the world economy stands at around $9 trillion. As the crisis continues, it is expected that more people will begin to lose their jobs, homes, and perhaps even the ability to feed themselves and their families.
The mounting fear, grief, and anger caused by this crisis have led many groups to seek legal compensation for the death and economic devastation wrought by the alleged failures to prevent the spread of the coronavirus. The primary target of such lawsuits has been China, reflecting widespread suspicions that Beijing failed to alert the WHO of an impending viral outbreak in a timely manner and instead suppressed evidence.
These sentiments and lawsuits are most prevalent in the United States, where the President himself has presided over the offensive against China. Donald Trump claims to be conducting “serious investigations” against China, and suggests that the US might seek “very substantial damages”. Alongside Trump’s grandstanding, however, there have been multiple class-action lawsuits filed in courts across America. Out of the six lawsuits against China in the US, five filed in California, Florida, Nevada, Pennsylvania, and Texas are class-action suits, filed on behalf of persons and businesses in the United States who have suffered injury, damage, and loss related to the coronavirus outbreak. Similar lawsuits have been filed in Missouri and Mississippi.
Many of the lawsuits filed accuse the Chinese government of conspiring to unleash a bioweapon to catapult itself to the position of a superpower. However, others, like Mississippi’s, don’t just target the Chinese government, but also other bodies within China. Some seek compensation from the government of the People’s Republic of China (PRC), while others target the Chinese Communist Party (CCP) and other government entities or agencies.
Having said that, despite a rising number of lawsuits in the US and elsewhere, experts have reiterated that any lawsuit against a foreign state or parts of a foreign state will face steep obstacles. International law experts have said that China is broadly protected under the U.S. legal doctrine of sovereign immunity that evolved from a court decision in the United Kingdom in 1894. Critics point out that the misconduct of Chinese authorities, as abhorrent as they may seem, do not constitute sufficient grounds for a waiver of this doctrine.
In addition, the 1976 Foreign Sovereign Immunities Act (FSIA) further limits the liability of foreign governments to U.S. judicial oversight. According to one federal court in the US, the intention of such a statute was basically “to protect foreign sovereigns from the burdens of litigations, including the cost and aggravation of discovery.” Additionally, even though it stated that foreign private entities could be sued, it permits the defendant to avoid responding to court summons. So far, China has vehemently denied all allegations and lambasted these lawsuits as frivolous with no legal basis, which makes it certain that it will ignore any potential court summons.
In fact, China’s foreign ministry spokesman, Geng Shuang, said the lawsuits have “no factual and legal basis at all” and repeated China's defense of its response to the outbreak. Since the outbreak began, China has proceeded in an “open, transparent, and responsible manner” and the U.S. government should “dismiss such vexatious litigation,” he said.
Moreover, Missouri’s success also hinges on its ability to show that the CCP must not be seen as a sovereign part of the Chinese government, which would, by extension, not entitle it to FSIA protection. Nevertheless, a foreign organisation can only be sued in the US if courts have personal jurisdiction over them. It is very unclear how Missouri can show that it has jurisdiction over the CCP. Moreover, despite the Missouri Attorney General’s office claims that China’s activities meet two exceptions to FSIA, experts remain sceptical. Additionally, even if Chinese authorities are forced to turn up to court to claim immunity and get a partial dismissal, it is unlikely to ever result in reparations.
Even in the unlikely event of a court judgment against China, the Chinese government would refuse to pay any award, leading to years of litigation in U.S. courts to seize Chinese assets in the United States. At a time of global recession, economic downturn, and a global supply chain shock, doing this will only escalate the trade war and adversely affect the health of the global economy.
That being said, the mere fact that China will have to turn up will hurt its image even if there are no tangible gains in terms of reparations. Professor Donald Clarke of George Washington Law School says that this is not without precedence. In the Huguang Bonds Case (Jackson v. PRC) in the 1980s, China originally refused to appear, but later was persuaded to appear to make the sovereign immunity argument without conceding jurisdiction.
Furthermore, a recent development has emerged that can turn the debate on its head. Sens. Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.) have drafted legislation that would strip a foreign government of immunity for any acts intended to conceal or distort information about the existence or nature of the coronavirus. The Cotton and Hawley bills appear to be modeled on the Justice Against Sponsors of Terrorism Act (known as JASTA) that Congress passed in 2016, overriding a presidential veto, to allow lawsuits against Saudi Arabia and other governments for aiding acts of international terrorism.
Some quarters in Washington have warned US lawmakers and urged them to resist the political temptations of allowing lawsuits against China, especially during an election year. Some analysts are wary of the potential dangers of Republican attempts to make Beijing bashing a centerpiece of the 2020 elections. These concerns are derived from the fact that sovereign immunity is based on reciprocity. If Congress allows lawsuits against China to proceed here, China may well retaliate by allowing lawsuits against the U.S. government or its officials in China for claiming that China had intentionally manufactured COVID-19. This is precisely why even Republican lawmakers immediately expressed misgivings over the recent legal offensives launched in the US. Senate Majority Leader Mitch McConnell (R-Ky.) said removing the immunity of foreign governments could have “unintended ramifications”.
Despite such hurdles, China can be held accountable in other ways, including through diplomatic pressure and a thorough global investigation of Beijing’s role in concealing and failing to stop the spread of COVID-19. It can be argued more convincingly that China’s delayed response, negligence, and data suppression rendered it extremely difficult for the WHO and foreign governments to adequately prepare for this calamitous infection. This avenue offers a greater probability of China being held legally liable in the eyes of international laws and regulations. For instance, the WHO's International Health Regulations-2005 has been referred to in order to assert that China violated its international obligations. Articles 6 and 7 of the WHO regulations make timely notification and information sharing obligatory on the country where an outbreak takes place.
These rules, which were framed and adopted by the World Health Assembly, the WHO’s highest decision-making authority can be used to push for an official investigation. Last week, the Australian PM called for a formal probe to be launched ahead of the Assembly’s annual meeting next month. Despite threats from Chinese authorities and economic coercion, Australia, which heads the panel, has not backed down. And considering that India will move into the leadership role next month by becoming the chairperson of the WHO’s executive board, like-minded nations can play a constructive role in finding the truth and fixing accountability.
In fact, rather than relying on domestic laws that China can easily skirt, the US can rely on international partners to place pressure on China to the point where it at least loses significant diplomatic and economic clout. This argument is corroborated by the fact that similar sentiments are arising across the globe.
The Italian consumers’ association, for instance, is evaluating the possibility of filing a class-action lawsuit against Beijing through US courts. Likewise, in Nigeria, a group of lawyers is suing China for $200 billion dollars in the federal court, while also persuading the Nigerian government to sue China in the ICJ. In Germany, the country’s largest newspaper, Bild, tallied up losses totaling 149 billion euros in an article entitled “What China already owes us.” Meanwhile, the London-based International Council of Jurists and the All India Bar Association also filed a joint complaint to the United Nations Human Rights Council seeking compensation from China, albeit on grounds of international laws.
Furthermore, a British conservative think tank, the Henry Jackson Society, which estimates that Chinese negligence has cost the G7 at least £3.2 trillion ($4 trillion), has also argued in a report in April that China could be taken to the International Court of Justice or the Permanent Court of Arbitration in The Hague. While some suggest that this requires China’s consent, others have argued that Article 63 of the WHO provides a basis for such a route.
Therefore, assertive diplomatic action is more likely to produce meaningful results for the victims than politically attractive but ultimately feckless, lawsuits, and battles over sovereign immunity.
Ultimately, China’s undoubtedly delayed response to the coronavirus outbreak and its ignorance for public health concerns merits greater scrutiny. However, in the absence of concrete evidence–especially when China has thwarted any independent investigation attempts and even destroyed evidence–it becomes difficult to prove that China committed deliberately wrongful acts or that COVID-19 arose from China’s commercial activities. Nevertheless, countries will find it difficult to ignore growing calls to hold China accountable for its many missteps during this crisis. While there is merit to the criticism that some of these attempts are a means for leaders to redirect blame towards China, not all such litigation attempts can be construed as what US General Charles Dunlap termed as lawfare: use of laws as a weapon of war.
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