Dr. Abbas Poorhashemi, President of the CIFILE, was interviewed by the Hong Kong Chinese newspaper ”MingPao” (明報), Coronavirus COVID-19: China could be sued in international law? published on May 16, 2020.
Q: Under the immense human and economic loss caused by the Covid-19 pandemic, some countries such as the United States have mentioned that they are willing to filing a lawsuit against China. Do they have any basis for filing a lawsuit law?
A: According to the fundamental principles of international law, violation of state international obligations or 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 the 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.
Q: To engage the Chinese government’s international responsibility, which court has competence for this kind of lawsuits?
A: There are four possible scenarios for the lawsuit against China:
First of all, they can make a lawsuit in national courts. According to the principle of international law, the national courts are not competent to entertain an international dispute between states. In this perspective, the collective civil actions launched by American lawyers to file lawsuits in the American Judicial System, such as the case filed in Florida, Nevada or California courts, do not pursue the general rules of international law. As mentioned above, the individual complaints in domestic courts have no any legal basis so China can invoke its immunity from such jurisdiction. In case of any local court made a judicial decision in this matter and condemns China for compensation, the decision could 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, the lawsuit can be made in the International Court of Justice (ICJ). The ICJ is a principal judicial body of the United Nations for settling disputes between states. The court to be competent for settling this claim must obtain the consent of 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 give a judicial decision for this possible lawsuit.
Thirdly, the International Criminal Court (ICC) would be the other 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 not ratified the statute of Rome. 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 China, the United States, France, United Kingdom, and Russia.
Q: Is it possible for these countries to win the case? What would be a reasonable reaction to the Chinese government?
A: Legally speaking, each type of national or international court has its jurisdiction, which means that it has the authority to decide specific types of cases. Any government or individual could file any lawsuits against the Chinese government for asking remedies for causing from COVID19 pandemic. However, based on the principle of international law, it seems that there is no national or international court competent to bring a claim against China.
Regarding the second part of your question, the government of China has an inherent right to the protection of international law against such interference or attacks.
Q: What is your final conclusion?
A: Judicial action against China is not a reasonable solution for the pandemic crises that affects all of humanity in the world. The principle of cooperation has been considered as one of the cornerstones of international law. According to this principle, all states have obligation to cooperate in such a situation collectively. In this context, the World Health Organization (WHO) plays an essential role in this matter.
