HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, October 23, 2021

Can China Be Sued under International Law for COVID-19?

Abbas Poorhashemi, Can China Be Sued under International Law for COVID-19?, SSRN (2021):

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 an 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 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 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 adopt 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.

https://lawprofessors.typepad.com/healthlawprof_blog/2021/10/can-china-be-sued-under-international-law-for-covid-19.html

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