Legally Speaking: Coronavirus and liability of foreign states

by Daniel Romano, BCL, LL.B., MA; Antonio Ostrica, LL.C., LL.B., LL.M.

“Somebody should be held to account for spreading this virus!”

The worldwide repercussions are severe, and many people want to hold the People’s Republic of China (PRC) responsible.

To win a case, one must prove one’s damages, that the Defendant was at fault, and that this fault was the direct cause of the damages. In response to the worldwide devastation being caused by COVID-19, the first three cases against the PRC to emerge were in Florida, Texas and Nevada. All three were class action lawsuits. These claims allege that the PRC, through its government, was at fault for several acts and omissions that led to the spread of the virus originating in Wuhan City. Most notable among these allegations is that the government censored eight doctors on January 1, 2020 from speaking about the outbreak and its dangers, and it took an unpardonable amount of time to warn the world of the danger after the PRC government became fully aware. According to all three lawsuits, this “fault” on the part of the government of China led to their failure to contain the virus thereby allowing it to spread worldwide, and thereby causing thousands of deaths and trillions of dollars of damages.

China, in response, may not even need to show up in Court. In theory, China is protected from lawsuit in the U.S. by the Foreign Sovereign Immunities Act, (FSIA) of 1976, which prevents foreign states from being sued. In Canada, our equivalent statute is the State Immunity Act, of 1985. Both laws evolved from a Common Law concept of reciprocity whereby each state promises to the other that they cannot be sued in their respective courts. Naturally, the lawyers in all three lawsuits will try to find exception to the rule of sovereign immunity, and with many billions of dollars at stake, the arguments will surely be as creative as they are interesting.

There exist other legal avenues whereby the PRC might be held accountable. Some legal experts claim that China was in breach of international law when it failed to report in a timely manner the outbreak of this virus. This breach is an international human rights violation, which would authorize the U.N. Security Council to take action to maintain or restore international peace and security. Of course, China is one of five countries to hold a permanent seat on the Security Council and has the power to veto any substantive resolution. This approach therefore poses little risk to the PRC.

Another avenue being explored stems from China’s membership as a State Party to the Biological Weapons Convention. This convention states that member parties undertake never in any circumstances to retain microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes. One Canada-based international lawyer has argued that non-reporting is a form of ‘retention’ and is in violation of the Convention. Another State Party, such as the U.S., could therefore claim that China acted in breach of its obligation and lodge a complaint with the Security Council. Whatever may be the merits of such an argument, let us remember that this is of course the same U.N. Security Council mentioned above, of which China is a permanent member with veto powers.

Other international jurists have argued that a case could be made in the International Court of Justice (ICJ) if it can be proven that a cover-up was perpetuated by high-level individuals. This would be an interesting case for the ICJ, but with one critical problem: participation in an ICJ arbitration must be consensual. In other words, China would have to agree to have a case heard against itself in the ICJ, otherwise, the ICJ has no jurisdiction.

Finally, even if a judgment of liability against the PRC could somehow be obtained somewhere in the world, the next important question is “how would one collect?” It is hard to imagine a domestic Chinese court allowing someone to seize government assets within China in order to satisfy a foreign judgment. Attempting to seize the foreign assets of state-owned Chinese enterprises abroad also bodes poorly as such assets are not considered Chinese government property in most countries. Whatever other repercussions the PRC may suffer, it is unlikely to be found liable for failing to stem the outbreak of the virus known as COVID-19.

Daniel Romano and Antonio Ostrica are attorneys with KALMAN SAMUELS, a family law firm. We invite you to follow us next month for Viruses and liability of local actors.

Dear Reader, these articles are published to provide you with general information about interesting legal topics and not as a legal opinion. Please do not try to hold the author, KALMAN SAMUELS, Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend you consult with a qualified attorney.

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