The Indian Bar Association was talking about a law suit against China over the Covid-19 pandemic.
May 21, 2020 03:31:11 pm
Edited by: Tim Zubizarreta | U. Pittsburgh School of Law, US
JURIST Guest Columnist Dr. Abbas Poorhashemi, President and Scientific Director of the Canadian Institute for International Law Expertise (CIFILE), discusses whether China can be held accountable by other states for its role in the spread of COVID-19 in domestic or international forums…
Under the immense human and economic loss caused by the COVID-19 pandemic, some countries have mentioned that they are willing to file lawsuits against China. Do they have any basis for filing a lawsuit? In the current state of international law, is the claimant State required to prove negligence or breach of a international legal duty to receive any compensation from China?
In fact, according to the fundamental principles of international law, violation of state international obligations or commission of any internationally wrongful act by a State engages its international responsibility. Thus, the claimant states 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. There are no general legal duties and obligations that apply to China as a violation of international law.
In this perspective, to engage the Chinese government’s international responsibility, which court has competence for this kind of lawsuit? There are four possible scenarios for a lawsuit against China.
First of all, a lawsuit could be brought in national courts. According to 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 so 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. In addition, 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.
Second, 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.
Third, the International Criminal Court (ICC) would be another option. The ICC prosecutes individuals for international crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression. In this particular case, neither China nor the United States has ratified the Rome Statute. For this reason, there is no international court competent for a state to bring a claim against China.
The last option is the UN Security Council which has the power under the ICC’s 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: China, the United States, France, the United Kingdom, and Russia.
…However, based on the principles of international law, it seems that there is no national or international court competent to bring a claim against China.
Lawyers collective seeks to sue China for COVID-19
EW DELHI , May 18, 2020 03:08 IST
Every citizen of India has been affected from different angles, it says
The government should allow private citizens to seek compensation from China for the spread of the novel coronavirus, a collective of Indian lawyers has argued. In a letter sent to Prime Minister Narendra Modi, the All India Bar Association has blamed China for the pandemic and asked for altering of laws so that citizens suffering financial and emotional losses because can seek damages from China.
“Every citizen of India has been affected from different angles. The affected persons wish to seek justice from the courts. One of the ways in which such accountability can be pinned is by judicial recourse for recovery of damages from the Chinese government,” said a letter signed by Dr. Adish C. Aggarwala, chairman of the association.
Under the Civil Procedure Code, a foreign power can be sued in an Indian court. However, this is possible only with the prior consent of the Central government. Mr. Aggarwala sought the Prime Minister’s intervention to amend Section 86 of the CPC that makes it mandatory to get clearance of Delhi. The Ministry of External Affairs is yet to comment on this development.
Ridiculous legal arguments about suing China show Indian elites’ hysteria
By Global Times Published: Jun 30, 2021 10:22 PM
Abhijit Bhattacharyya, an advocate of India’s Supreme Court, published an anti-China opinion piece entitled “Pandemic is a fit case for China to pay up” in the Indian newspaper The Tribune on Tuesday. Bhattacharyya said in the article that “the door is open” to take the Communist Party of China (CPC) to the International Court of Justice (ICJ) over the outbreak of the COVID-19 pandemic.
Such a cliché has no legal basis, nor is it based on facts at all. First, from a legal point of view, the ICJ is the main judicial organ of the United Nations (UN). It needs a state’s consent to exercise its jurisdiction, but China has never given one. This means that it has no jurisdiction over China. Therefore, without the consent of the Chinese government, it is impossible to bring a lawsuit against China in the ICJ. Bhattacharyya’s article is nothing but another example of discrediting China in the international community. It is legally impossible.
Second, the article is completely opposite to the facts. The International Health Regulations (2005) requires countries to report information to the World Health Organization (WHO) on certain disease outbreaks and public health events. As is known to all, after the COVID-19 outbreak in Wuhan, China promptly notified the WHO and other countries in the first place. It also shared the full genetic sequence of the novel coronavirus, and has informed the WHO about the situation on a regular basis. China also published a timeline on COVID-19 information sharing and advancing international cooperation in both Chinese and English. The so-called investigation of China is entirely a presumption of guilt. China is not guilty of anything.
Sovereignty is the supreme authority within a territory. Whether the ICJ has a state’s consent to exercise its jurisdiction or not is based on the premise of all countries’ free will. As long as the Chinese government refuses, some people and countries’ attempt to make China “pay up” will never yield any practical effect under the current international law system.
The article was compiled based on an interview with Huo Zhengxin, a law professor from China University of Political Science and Law. email@example.com