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William Julie
Attorney at law, Paris Bar
wj@wjavocats.com

Sophie Menegon
Attorney at law, Paris Bar
sm@wjavocats.com

Alice Murgier, Jurist
 

Introduction: facts and figures

Pursuant to public information, the first known Covid-19 case would be a man from Wuhan who developed symptoms in mid-November 2019, even though the exact date is disputed. The unknown virus spread rapidly, and the number of infected individuals increased, pushing countries in Asia, Europe, the Middle East and North America to react and impose strict measures, such as introducing a lockdown. The World Health Organization (WHO) declared a pandemic on 11 March 2020.

As of 9 July 2020, over 12 million people have been infected, and over 549,000 people have died of the virus worldwide.^[1]

Several political figures have questioned the Chinese government’s handling of the health crisis, arguing they had been too slow to inform the public and the international community, and too slow to impose sanitary measures.

The course of events shows that the Wuhan Municipal Health Commission informed the city, and the Chinese Health Authorities informed the World Health Organization China Country Office of several cases of respiratory failures for unknown causes, on 31 December 2019. This was more than two weeks after Zhang Jixian, a doctor from the Hubei Provincial Hospital of integrated Chinese and Western Medicine, had alerted the authorities about the new form of Coronavirus.

The WHO struggled to get needed information from China during critical early days of the pandemic. Recordings of WHO internal meetings for the week of 6 January 2020 show officials complaining in meetings that Beijing was not sharing data needed to evaluate the risk of the virus to the rest of the world. It was not until 20 January that China confirmed that coronavirus was contagious and 30 January that the WHO declared a global emergency.^[2]

Consequently, the communication of information from China during the months following the apparition of the virus is controversial. It is alleged that China withheld important information regarding the virus, including inaccurate reports of medical staff with regard to human-to-human transmission,^[3] and crucial reports on the number of ‘silent carriers’, that is, people who are infected by the coronavirus but show delayed or no symptoms.^[4]

Indeed, multiple reports have suggested that doctors and health professionals who were speaking about the outbreak of virus in health facilities were silenced, threatened or arrested.^[5]

Such a worldwide crisis has led several actors to question whether China should be held accountable for the pandemic and/or of its disastrous consequences on the human, social and economic levels.

The purpose of this Article is to identify the legal actions which have or could be led against China in order to render the state accountable for the damages caused by the virus. Several proceedings have already been initiated by individuals or non-governmental organisations against Chinese authorities at the domestic or international level. The possibility of an action by a State against China before an international jurisdiction remains open. Even if such an international court were to issue a decision against China, its implementation would be uncertain.

Legal proceedings already initiated against China

Individuals or NGOs have launched several actions against China at the national and international level.

Domestic legal actions

In March 2020, lawyer and former federal prosecutor Larry Klayman submitted a class action complaint against the Chinese government in the United States District Court for the Northern District of Texas. It alleges: ‘massive damage caused by defendants as a result of COVID-19 release from an illegal and internationally outlawed bioweapons facility in the city of Wuhan of the People’s Republic of China.’ Klayman maintained that Covid-19 was ‘designed by China to be a biological weapon of war’ and that it had violated ‘US law, international laws, treaties and norms’, whether or not it intended to release it.^[6]

During the same month, a class action was filed in US District Court for the Southern District of Florida, by residents of Miami-Dade County and Palm Beach County, and The Pitching Lab LLC. They sued China for having ‘covered […] up’ the eventual coronavirus Covid-19 pandemic for its ‘own economic self-interest’, alleging negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, strict liability for conducting ultrahazardous activity, and public nuisance.^[7]

In April 2020, Missouri Attorney General Eric Schmitt filed a lawsuit against the Chinese government in the US District Court of Missouri, seeking ‘billions of dollars’ in damages for the medical and economic toll of Covid-19, alleging that China had misled the world about how easily the virus could spread, silenced doctors who tried to sound the alarm, failed to respond adequately to the threat and then hoarded crucial medical supplies.^[8]

However, these lawsuits have very little chance of succeeding. In the US, the 1976 Foreign Sovereign Immunities Act (FSIA) provides foreign governments with state immunity, that protects them from lawsuits in US federal and local courts, except in relation to certain actions relating to commercial activity in the US. The implication of state immunity is that sovereign governments are immune against lawsuits in foreign courts. This means that the Chinese government cannot be sued in a US court.

In April 2020, a Republican Senator and a Republican Congressman proposed a Bill to change the Foreign Sovereign Immunities Act (FSIA) in order to authorise suits against China over Covid-19.^[9] If this Bill passes, it might open the gates to lawsuits against China for the damages caused by the pandemic. However, it seems unlikely considering the courts would be flooded by individual lawsuits and would have little to no means to hold the Chinese government accountable.

International legal actions

International legal proceedings have also been initiated against the Chinese government.

In March and April 2020, three reports (‘signalements’) were filed before the International Criminal Court (ICC), two against China’s government and one against Brazil’s President, alleging crimes against humanity and asking the Court to open an investigation.^[10]

The first report was submitted by US lawyer Larry Klayman, who argued the Chinese government could be liable for crimes against humanity, on the grounds that the virus would have been created in a laboratory in Wuhan as a ‘bioweapon’ and released without proper caution.^[11]

Another report was filed against the Chinese authorities by a Mumbai-based lawyer, Ashish Sohani, accusing Beijing of failing to contain the Covid-19 pandemic and allowing the deadly virus to spread around the globe.^[12]

A third report was filed by a Legal Association in Brazil, ABJD, against the country’s President, Jair Bolsonaro, for crimes against humanity, alleging that he endangered the Brazilian people by ending prematurely the containment and minimising the pandemic.

Pursuant to Article 7 of ICC Statute, crime against humanity means certain acts ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. Article 30 adds that ‘unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.’

In light of these criteria, the qualification of crime of humanity appears doubtful, especially with regard to the mental element, and it is not likely that any of the reports mentioned above would lead to the opening of an investigation by the ICC Prosecutor.

A complaint has also been filed against China by the International Council of Jurists and the Indian Bar Association in front of the United Nations Human Rights Council (UNHRC), asking the organisation to inquire and direct China to ‘adequately compensate the international community […] for surreptitiously developing a biological weapon […] and also for serious […] harm caused to these States due to the inaction and negligence to respect the international obligations.’^[13] However, the UNHRC has no sanction power, it can only render reports and recommendations.

The Chinese government as well as the Wuhan laboratory have denied all these accusations.^[14]

Considering the disastrous consequences of the global pandemic, some states may contemplate taking legal action against China for how it handled the crisis.

Potential international legal actions from states against China

Any action from a state against China would necessitate identifying both the proper forum and the international norms which would have been violated by China.

Which forum for an international legal action against China?

A state could contemplate filing a lawsuit against China before the International Court of Justice (ICJ) or the Permanent Court of Arbitration (PCA), for having endangered the world population and hurt the international economy by its poor management of the Covid-19 pandemic, on the basis of a breach of its international obligations.

In this regard, several actors have alleged that China would have failed to inform the WHO, a United Nations special agency, in a timely manner against the dangers of the virus and its transmission mode, in violation of the WHO Constitution or of the WHO International Health Regulations, which refer, respectively, to the ICJ or the PCA’s jurisdiction.

The International Court of Justice

The ICJ is a United Nations body, which has contentious and advisory jurisdiction. It can settle legal disputes between states submitted to it by them (contentious cases) and issue advisory opinions on legal questions referred to it by UN bodies and specialised agencies (advisory proceedings).

In order for the ICJ to rule on a dispute involving China, it must have jurisdiction, whether by a provision in a treaty or by a declaration of the states in question, and there must be a legal basis for the action, ie, an alleged violation of a provision of a treaty.

There are several possibilities for a state to refer a case to the ICJ. The conditions are the result of the will of states to contribute to international public law while keeping their sovereign immunity.

Only States Members of the UN^[15] and other states which have become parties to the Statute of the Court^[16] or which have accepted its jurisdiction under certain conditions may be parties to contentious cases.

The Court is competent to entertain a dispute only if the states concerned have accepted its jurisdiction in one or more of the following ways:

1. Through the reciprocal effect of declarations made by them under the Statute, whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another state having made a similar declaration.^[17] These declarations must be deposited with the UN Secretary-General and may contain reservations excluding certain categories of dispute. China has not made such a declaration so far and it is not probable that it would issue such a statement in the near future, giving its binding effect.
2. By entering into a special agreement to submit the dispute to the Court. It is not likely that China, which has never been a party to a dispute before the ICJ and contests any wrongdoings in its management of the Covid-19 pandemic, would agree to ratify such a special agreement to solve a dispute with a state related to this issue.
3. By virtue of a jurisdictional clause, for instance when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court.^[18]

This last option would be the most secure way for a state to ensure China’s appearance before the ICJ, without China being able to object to the Court’s jurisdiction.

China has ratified several treaties which contain such a provision, such as the Treaty Of Friendship, Commerce and Navigation of 4 November 1946 with the US (Article XXVIII), the Economic Cooperation Agreement of 3 July 1948 with the United States (Article X), or the Treaty of Amity of 18 April 1947 with the Philippines (Article 2).

It has also ratified the Constitution of the World Health Organization, whose Article 75 expressly confers jurisdiction to the ICJ in the event of a dispute not resolved in front of the World Health Assembly. The Article states that: ‘Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.’

These treaties, therefore, would confer jurisdiction to the ICJ to settle a dispute with China if the requiring state could demonstrate a breach of a provision of these treaties.

It should be noted that if a dispute arises concerning the jurisdiction of the ICJ, the matter is decided by the ICJ itself.^[19]

The Permanent Court of Arbitration

The PCA, established by treaty in 1899, is an intergovernmental organisation providing services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organisations, and private parties. The PCA’s functions are not limited to arbitration; they also include providing support in other forms of peaceful resolution of international disputes, including mediation, conciliation, and other forms of alternative dispute resolution.

The cases dealt with by the PCA span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade.

Similarly for the ICJ, the PCA is competent to entertain a dispute only if the states concerned have accepted its jurisdiction.

With regard to health issues, China, which is one of the 122 Member States of the PCA, is bound by the WHO International Health Regulations adopted on 23 May 2005. These impose several obligations on WHO Member States in case of events that may constitute a public health emergency of international concern. The Regulations stipulate, in Article 56 section 3, that any dispute between states regarding their application or interpretation may be settled through arbitration under the auspices of the PCA:

‘A State Party may at any time declare in writing to the Director-General that it accepts arbitration as compulsory with regard to all disputes concerning the interpretation or application of these Regulations to which it is a party or with regard to a specific dispute in relation to any other State Party accepting the same obligation. The arbitration shall be conducted in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States^[20] applicable at the time a request for arbitration is made. The States Parties that have agreed to accept arbitration as compulsory shall accept the arbitral award as binding and final. The Director-General shall inform the Health Assembly regarding such action as appropriate.

Nevertheless, the same article, in its section 4, specifies that: ‘Nothing in these Regulations shall impair the rights of States Parties under any international agreement to which they may be parties to resort to the dispute settlement mechanisms of other intergovernmental organisations or established under any international agreement.’

Therefore, a state alleging a violation of the WHO 2005 International Health regulations by China in its management of the Covid-19 crisis could invite it to settle their dispute through the arbitration of the PCA, but China could refuse.

Which breach of international law for an international legal action against China?

As noted above, to bring a case against China in front of the ICJ or the PCA, a state will have to demonstrate a violation, by China, of an international legal instrument conferring jurisdiction to these courts, unless China voluntarily agrees to submit their dispute to such courts, which is an unlikely hypothesis.

A violation of the Constitution of the World Health Organization

China’s responsibility over the Covid-19 crisis could be invoked on the basis of several Articles of the WHO Constitution.

The introductory principles of the Constitution state that:

‘[…]Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures. Accepting these principles, and for the purpose of co-operation among themselves and with others to promote and protect the health of all peoples, the Contracting Parties agree to the present Constitution and hereby establish the World Health Organization as a specialised agency within the terms of Article 57 of the Charter of the United Nations.’

In addition, Article 1 of the Constitution states that ‘the objective of the World Health Organization shall be the attainment by all peoples of the highest possible level of health’.

Article 20 states that the Members States tacitly accept the conventions or agreements adopted by the Health Assembly. According to Article 21, the Health Assembly is the competent authority to adopt regulations concerning ‘sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; nomenclatures with respect to diseases, causes of death and public health practices; standards with respect to diagnostic procedures for international use […]’.

In addition, Articles 61 to 65 list the obligations by states to provide reports to the WHO on the sanitary and health situation in their territory. For example, Article 63 states that ‘Each Member shall communicate promptly to the Organization important laws, regulations, official reports and statistics pertaining to health which have been published in the State concerned.’ Article 64 further requires that ‘Each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly’.

Consequently, a state may consider relying on these provisions of the WHO Constitution to allege that China failed to comply with its reporting obligations to the Organization by delaying and/or limiting the information disclosed about the Covid-19 virus and its transmission mode. Since, as noted above, Article 75 of the WHO Constitution confers jurisdiction to the ICJ, such a dispute could be submitted to the ICJ.

It should be noted that Articles 21 and 64 of the Constitution explicitly or implicitly refer to the International Heath Regulations adopted by the Health Assembly, which could also be relied on to allege a breach, by China, of its international obligations.

A violation of the international health regulations

As mentioned earlier, China is bound by the WHO International Health Regulations adopted on 23 May 2005. The purpose of these Regulations is ‘to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’ (Article 2). Such Regulations are directly relevant to determine whether China managed the Covid-19 crisis properly.

Article 3 of the Regulations stipulates that their implementation shall be guided by the Charter of the United Nations and the WHO Constitution, as well as by the goal of their universal application for the protection of all people of the world from the international spread of disease.

Article 6 of the Regulations focuses on the required celerity in notifying information to the WHO related to events which may constitute a public health emergency of international concern, such as the Covid-19:

‘1. Each State Party shall assess events occurring within its territory by using the decision instrument in Annex 2. Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory in accordance with the decision instrument, as well as any health measure implemented in response to those events. If the notification received by WHO involves the competency of the International Atomic Energy Agency (IAEA), WHO shall immediately notify the IAEA.

2. Following a notification, a State Party shall continue to communicate to WHO timely, accurate and sufficiently detailed public health information available to it on the notified event, where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the potential public health emergency of international concern.’

Even if the state does not have specific information on the situation, it should keep the WHO informed as thoroughly as possible during unexpected or unusual public health events (Article 7) and consult the WHO regarding possible sanitary measures (Article 8).

In addition, Article 42 stresses that ‘health measures taken pursuant to these Regulations shall be initiated and completed without delay, and applied in a transparent and non-discriminatory manner’. Article 44 recalls that ‘States Parties shall undertake to collaborate with each other, to the extent possible, in: (a) the detection and assessment of, and response to, events as provided under these Regulations […]’.

A state may therefore consider relying on these provisions of the WHO International Health Regulations to allege a violation of China’s obligations towards the WHO and its Member States, by its belated reaction to the apparition and propagation of the Covid-19 virus. As mentioned above, since Article 56 section 3 of the Regulations stipulate that any dispute between states regarding their application or interpretation can be settled through arbitration under the auspices of the PCA, a state could submit such a dispute to the PCA, but only with the agreement of China. A dispute alleging a violation of the International Health Regulations could also be submitted to the ICJ with a special agreement of China.

A breach of other international instruments

Two other treaties ratified by China could be considered as a potential basis for a claim against China in front of the ICJ, since they include a jurisdictional clause for this Court.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora prohibits the trade of endangered species, among which is the pangolin since 2013.^[21] A state would have to prove that the origin of the Covid-19 was caused by the trade of wild animals on open markets in China to submit a case against China before the ICJ. This has not been demonstrated yet pursuant to available public information.

In addition, the 1946 Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of China,^[22] in its Article VI, provides that on the territory of each contracting party, the nationals of the other contracting party ‘shall receive the most constant protection and security for their persons and property, and shall enjoy in this respect the full protection and security required by international law’. The US could consider submitting a case against China before the ICJ if they could demonstrate that some US citizens died of the Covid-19 in China because of the insufficient protection or security provided by the Chinese authorities.

Even if a court were to rule in disfavour of China, its adversary could face some difficulties to obtain the implementation of its judgment.

Obstacles to the implementation of decisions against China

The states may face some difficulties to obtain the implementation of a decision issued against China by an international jurisdiction in light of the lack of enforcement power of these courts, resulting from the states’ sovereign immunity. Nevertheless, the states are not powerless between themselves and could have recourse to other mechanisms to incite China to implement a decision issued by an international court.

The lack of enforcement power of international jurisdictions

The decisions of the International Court of Justice

Even if the ICJ were to issue a decision against China for a violation of its international obligations, it might be difficult to obtain the application of the measures or sanctions decided, since the ICJ does not have itself any enforcement power.

According to article 94 of the Charter of the United Nations:

‘1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.’

The application of ICJ decisions therefore relies on the voluntary execution by the states.

In addition, there is a debate as to whether the UN Security Council could intervene if the lack of implementation of the ICJ judgment did not threaten the world peace or security. Indeed, the Security Council is ‘primary responsibility for the maintenance of international peace and security’ pursuant to Article 24 of the UN Charter, and its enforcement power under Chapter VII of this Charter^[23] apply only in case of ‘threats to the peace, breaches of the peace, and acts of aggression.’

Last but not least, a judgment against one of the permanent members of the Security Council can be vetoed by one of them. Article 27 of the Charter of the United Nations gives a veto power to the five permanent members of the Security Council, including China, France, Russia, the United Kingdom and the US. Therefore, the Security Council could not adopt any measure against China without the Chinese authorities’ prior approval, which is unlikely. For instance, in 1986, in the Military and Paramilitary Activities in and against Nicaragua case, the ICJ condemned the US to compensate Nicaragua but the United States, which considered that the ICJ had no jurisdiction in this case,^[24] blocked the judgment at the Security Council. This prevented Nicaragua from obtaining the compensation awarded by the judgment.

Therefore, a decision from the ICJ against China, if any, will probably only be symbolic. Its application could be blocked at the level of the UN Security Council, even if this last one were to consider itself competent to ensure its implementation.

The decisions of the Permanent Court of Arbitration

Similarly, the PCA issues binding decisions but has no enforcement power. Like for the ICJ, the implementation of its decisions relies on the voluntary execution by the states. As opposed to the ICJ, the PCA is not a UN body, so it cannot even rely on the eventual assistance of the UN Security Council.

Thus, a state which would not recognise the PCA jurisdiction may refuse to implement its rulings. For example, in 2013 the Republic of the Philippines brought a case against the People's Republic of China concerning a territory dispute in the South China Sea. The PCA declared it had jurisdiction over the case, but China declared that it would not participate in the arbitration. On 12 July 2016, the Court ruled in favour of the Philippines, but China rejected the ruling.^[25]

The mechanisms available to the States in case of lack of implementation of an international judgment against China

In case of lack of application of a decision from an international court by China, the parties to the dispute, if willing to reach a compromise, may agree to conclude bilateral post-jurisdictional treaties, which will ‘adapt’ the judgment of the international court, or to set up joint commissions, mechanisms for the materialisation of post-jurisdictional arrangements, which aim, through negotiation, at achieving a consensual application of the judgment, even if it means making certain amendments to it. Such an approach has been adopted in cases involving territorial and maritime boundaries, following rulings from the ICJ.^[26]

In China failed to implement the judgment of an international jurisdiction, the opposing state could adopt some countermeasures to incite the Chinese authorities to apply it.

The concept of countermeasures first appeared in the practice of states to regulate relations with their neighbours. Their lawfulness was affirmed by the arbitral award of 9 December 1978 in the case of the Interpretation of the Air Agreement of 27 March 1946:

‘In the current state of general international law, apart from the specific commitments arising from specific treaties, and in particular from the mechanisms established within the framework of international organisations, each State itself assesses its situation with regard to other States. In the presence of a situation which in his opinion involves the violation of an international obligation by another State, he has the right, subject to the general rules of international law relating to armed constraints, to have his right respected by counter-measures.’^[27]

A first, procedural, limitation to the resort to countermeasures lies in the need to exhaust preliminarily amicable means of dispute settlements. A second, substantive, limitation to countermeasures is the requirement that they be proportionate to the alleged harm.

Countermeasures include interruption of economic relations or of means of communication, the severance of diplomatic relations, and so on.

In China’s case, the violation of its international obligation warranting countermeasures would be the non-compliance with the decision of an international court. The opposing state could therefore decide to impose a full or limited embargo on trade with China, but this option would not be very pragmatic for most of the states given the economic power of China. Nevertheless, on 30 April 2020, President Trump threatened to impose tariffs on trade with China in relation with the coronavirus outbreak.^[28] Diplomatic relations with China could also be suspended.

It should be stressed that countermeasures are distinct from the public international law notion of retaliation or retorsion measures, which involve armed forces.^[29]Indeed, the lawfulness of retorsion measures remains questionable since treaty law has prohibited the use of force in interstate relations, except in the case of individual or collective self-defence in reaction to an armed attack (Article 51 of the UN Charter).^[30] In times of conflict, case law recognises that reprisals are lawful when they respond to an attack, provided that they are proportionate to the attack and directed exclusively against combatants and military objectives, in accordance with humanitarian law.

In conclusion, it seems there are many obstacles to a successful lawsuit against China in front of domestic or international jurisdictions, to make it accountable for the pandemic and/or its consequences: the questionable jurisdiction of a court over China; the question of the action’s legal basis; and, the difficult execution of a potential ruling. However, other non-binding mechanisms are possible in order to investigate the issue, such as the recourse to the World Health Assembly.

 

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