29 June 2020

Suing China for the Virus: Why, Where, and How

When all this will be over, and perhaps even before, the Chinese Communist Party (CCP) may find itself attacked by an enemy its mighty military power will not be able to stop, aggressive Western lawyers. According to a UK think tank’s report released this month, Beijing and the CCP must pay up for the epidemic. The Henry Jackson Society report is entitled, “Coronavirus compensation? Assessing China’s potential culpability and avenues of legal response,” and estimated China’s liability at US$ 4 trillion.

Indeed, there is ground in international law to sue the Chinese government and/or the CCP for the damages their irresponsible conduct caused to the whole world. A study by American legal scholar James Kraska discussed this point. I do not agree with all his statements, but am summarizing and developing here some of his ideas, adding others of my own.

What would be the legal basis for the lawsuits? It is, indeed, a basis the world created with China in mind. In 2002, SARS spread from China’s Guangdong province. By 2003, it had spread to 28 countries, with a total death toll of 774. The figure may now look small, compared to the victims of COVID-19, but the world realized that many casualties could have been avoided, had China not tried to shroud in secrecy the epidemic for several weeks after it occurred. SARS led to the new International Health Regulations of the World Health Organization (WHO),  adopted in 2005 and legally binding on all WHO member states, including China. The Regulations refer inter alia to SARS as well as to similar diseases “caused by a new subtype” (such is the virus responsible for COVID-19), and establish an obligation by member states to share relevant information within the WHO “within 24 hours.”

No matter how much China uses its political leverage to control statements by WHO leaders, it is crystal clear that China has violated its obligation to report under the 2005 Regulations. The story of Doctor Li Wenliang (1986-2020), to whose family the CCP apologized when he had already died from the disease, shows clearly that China did not want information on the virus to go public internationally, and those who dared to speak about it were threatened or put in jail. The CCP withheld crucial information for weeks, both at home and internationally, and there is a general consensus that, had China released them on time, thousands of lives would have been saved.

A crucial problem in international law is sanctions. Proclaiming that UN member states are responsible for their actions is easy. Sanctioning them is difficult. To help with the notoriously intractable problem of enforcing international law, the United Nations established in 1947 the International Law Commission (ILC). In 2001, this Commission published the Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Many have noted the limits of the ILC: its documents are authoritative but not legally binding on member states. However, the case law of the International Court of Justice tells a partially different story. The Court has used ILC documents, including the Draft Articles, as guidelines to interpret international law. Art. 34 of the Draft Articles states that a state that intentionally breached an international obligation is liable to “full reparation for the injury caused by the internationally wrongful act,” in “the form of restitution, compensation and satisfaction.” Of interest is also Art. 39, according to which, “In the determination of reparation, account shall be taken of the contribution to the injury by willful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought.” This means that, in addition to China as a state, entities (such as the CCP) or persons (such as President Xi Jinping and others) who, to say the least, “contributed” to the Chinese breach of its obligation to share immediately information with the rest of the world through the WHO, are also liable.

The damages are obviously enormous. China may find several ways to reject the jurisdiction of the International Court of Justice, whose vice-president, by the way, is a Chinese, Ms. Xue Hanqin. However, states have found alternative way to punish the wrongdoers. Since 2016, the Global Magnitsky Act authorizes the United States to take action against human rights offenders. Courts throughout the world have also accepted civil lawsuits seeking damages from foreign officials. The Western lawyers’ fantasy is almost without limits. 

They have started using it. The Chinese national government and the Hebei provincial authorities have been sued before the U.S. District Court for the Southern District of Florida and elsewhere for damages by American citizens who did not test positive for COVID-19 but claim to have suffered economic losses because of it. The Florida lawsuit named as defendants the People’s Republic of China (PRC), the National Health Commission of the PRC, the Ministry of Emergency Management of PRC, the Ministry of Civil Affairs of PRC, the Government of the Hubei Province and the Government of the City of Wuhan. 

Chinese scholars Zheng Sophia Tang (currently at Newcastle University) and Zhengxin Huo came to the defense. They argued that American courts should not assert jurisdiction against a foreign sovereign state such as China—although American law allows them to do so in some circumstances. In fact, the Foreign Sovereign Immunities Act (FSIA) of 1976 states that foreign states can be sued “for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”

Under U.S. law, China can indeed be liable for damages, but the burden of proof is severe for the plaintiffs. My impression is that these are just preliminary moves. Some of the lawyers who went public with their lawsuits against China are marginal figures, who have sued in the past American Presidents, and have lost. We have not seen yet top law firms entering the fray. And, for what is worth, I suggest that suing the CCP as a party may be easier than suing China as a sovereign state. 

One curious Chinese reaction has been to start lawsuits against the American government, based on the theory officially promoted by the Chinese government that the virus originated in the United States and came to China through U.S. soldiers who participated in the Wuhan Military Games in October 2019. In theory, local courts in China should seek the guidance of the People’s Supreme Court, which should stop the cases since (unlike American law), Chinese laws maintains that foreign sovereign states enjoy absolute immunity from legal prosecution.

But it is obvious that these cases are merely retaliation and political propaganda. Nobody can seriously believe that the U.S. exported the virus to China, and the CCP propaganda machine seems to have already switched to the equally absurd theory that the virus originated in Italy.

Civil suits are, on the other hand, serious. Those considering them should, first of all, seek the assistance of reliable law firms.

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