Will COVID-19 Pandemic Open a Pandora’s Box Of Longstanding International Lawsuits?
The COVID-19 pandemic has been rightly agitating the minds of people around the world, resulting in many attempts to attach the legal liability of its spread and havoc on the Chinese. These legal actions around the world are both in the form of civil and criminal in nature. This is certainly going to open a Pandora’s Box of longstanding international legal issues.
Undoubtedly, the first task in such litigations would be to overcome/satisfy the fundamental legal maxim of Damnum Sine Injuria (Injury without violation of a legal right), i.e. even if the injury caused is apparent, violation of legal right of the complaining party must be established. While the world points fingers towards China as the country where the first Coronavirus case was detected, China seems to shift the blame on the US, while feeding the reports of ‘ground zero’ patient being from Italy. Hence, it would be onerous to demonstrate the legal obligation of China to stop the spread of Coronavirus. Moreover, allegations of conspiracy and biological warfare attach far greater burden of proof on the accuser, that is to prove the mala fide beyond any reasonable doubt. China may further argue that it discharged its reasonable obligation when it informed about the pandemic through WHO on 31.12.2019, besides the possibility of it not originating in China itself.
Secondly, determination of the appropriate adjudicating authority is another legal challenge. The defense of sovereign immunity would obviously be claimed by China, however, interesting arguments against this defense can be advanced when the complaint is founded on human rights violations. The law suits in the US have cited the exceptions under Foreign Sovereign Immunities Act to press charges against China, but many experts have argued that such pleadings by the complainants before the domestic courts of the US are misplaced, even going by the text of said legislation of the US. Additionally, to sue the foreign states for their domestic policies could amount to judicial overreach. Fundamentally, it needs to be understood that in international law, there is no compulsory jurisdiction with International Court of Justice or any other judicial forum, as such jurisdictions are subject to agreement or acceptance under some treaty etc., and there is no such acceptance by China.
Thirdly, even if some adjudication forum assumes and exercises jurisdiction in such suits or prosecutions against China, thereby finding it guilty of the charges or declares it as a tortfeasor, the execution of such orders may be a Herculean task, as China may outrightly reject the legitimacy of such an adjudication itself. How probable is for US or any other country to impose sanctions under its domestic laws? Given the fact that such pandemics
may occur in any country, the mere spread of it without the unquestionable criminal culpability of the Chinese, US and other states would be wary of pressuring China to compensate for the disease, as such a precedent may boomerang at them in the future. Imposition of sanctions through Security Council shall fall flat for obvious reason of China exercising its veto. Ultimately, it may only give rise to another bilateral trade war between China and the US.
Written by: Attorney Faten Al Naqeeb