The Covid-19 pandemic received international attention in the fall of 2019, and by January of 2020, concerns had heighted to the point that the World Health Organization (WHO) took center stage in coordinating efforts to slow or stop the spread of the virus globally. The virus originated in the Wuhan province of China, and although the WHO publicly praised China for its timely disclosure of information about the virus, it was later reported that China failed to disclose the virus’s genome for up to one week. This delay deprived the WHO and other government organizations of precious time that could have been spent preempting the spread of the virus.
In light of this information, lawmakers in the United States have proposed legislation authorizing the President to sanction China for any continued lack of cooperation in the investigation of the outbreak. Meanwhile, several class-action lawsuits have been filed against the government of China by groups of private citizens in the U.S. These lawsuits have a vanishingly small chance of achieving the desired effect. Moreover, unilateral action by single nations will not be enough to deter similar governmental negligence in the future to the extent necessary. The United Nations Member States have legal standing to bring international charges against China’s government in the International Court of Justice (ICJ) and must work together to send a unified and forceful message. Global health depends on a strong response for future deterrence.
Early on, any attempt to hold the Chinese government accountable for its response to the Covid-19 outbreak was mostly limited to the efforts of private citizens. By May of 2020, at least six class-action lawsuits had been filed against the Chinese government in federal U.S. courts. However, early on in the wave of lawsuits, legal experts were already responding to the discourse around this possible route of action and informing the public that such suits would be symbolic at best. For example, Chimène Keitner noted that federal U.S. courts had no jurisdictional authority to bring civil or criminal charges against a sovereign state. Keitner explained that the Foreign Sovereign Immunities Act of 1976 is unambiguous on this matter. She explained: “Clearly all of the named defendants qualify as a ‘foreign state’ under § 1603(a) of the act, which indicates that a foreign state ‘includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state.’” In the lawsuits in question, all of the named defendants are precisely that— agencies or instrumentalities of the government of China.
To be fair, the plaintiffs’ legal representation for these cases appear to have been aware of the parameters set in place by the Foreign Sovereign Immunities Act. In fact, their gambit was to precisely sidestep the legal limitations put in place by the law in order to override China’s immunity. For example, a class action lawsuit filed in March through the U.S. District Court of Florida argued that China should not be granted immunity of a foreign sovereign state, because the Covid-19 outbreak should be treated the same way as a terrorist attack. In effect, this classification would bypass the relevant provision of the Foreign Sovereign Immunities Act. Unfortunately for the plaintiffs, this route is exceedingly unlikely to work.
According to Stephen L. Carter, a professor of law at Yale University, the necessary reclassification requested by the lawsuits is precisely what the law aims to prevent. In other words, nation-states are not simply immune from lawsuits filed by citizens of other countries, but they are immune from lawsuits that might attempt to reclassify the Chinese government or its agencies as terrorist (or otherwise illegitimate) entities. Carter writes: “Sovereign immunity is not a favor courts do for foreign regimes. It’s an act of reciprocity, a peace treaty resting on a shared understanding that we will not allow our people to sue you if you will not allow your people to sue us.” In this formulation, “you” and “us” mean China and the United States, and other countries have similar laws on the books as well. This can result in a similarly unsuccessful outcome for the class-action legal route. For example, Canada’s State Immunity Act (1985) provides that foreign states and their agencies are immune from the jurisdiction of Canadian courts with the exception of terrorist organizations or activities. The law is virtually identical to the U.S. equivalent.
The foregoing issues have important implications for what approach would be both appropriate and effective in holding the Chinese government accountable for its role in the initial spread of Covid-19 and preventing similar negligence in the future. First, it would be virtually impossible for a single nation or its citizens to take unilateral legal action against the Chinese government in the form of civil or criminal charges. Second, however, the infeasibility of such legal action does not rule out the use of international bodies, such as the afflicted courts or governments to enact punishments and/or establish a precedent for accountability in the future. Moreover, the legal fact of sovereign immunity only draws further attention to the intensifying need for international action.
To pursue this route, a strong international consensus will be required. Such a consensus would be pursued through the cooperation of the UN Member States in order to explore the charges brought before the ICJ. Unlike the class-action lawsuits filed in domestic courts, a stronger case can be made for the use of the ICJ to bring disputes and international sanctions against China. Legal expert Devashsish Giri makes a persuasive case in which China’s failure to disclose timely and accurate information during the initial outbreak constitutes a violation of the International Health Regulations, adopted by the WHO in 2005. Article 6 of the regulations concerns notifications and provides that “Each State Party shall notify WHO, by the most efficient means of communication available […] 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 light of the Chinese government’s failure to notify the WHO of the outbreak within 24 hours, and their subsequent withholding and failure to report accurate information, there is no question that China failed to follow Article 6 of the regulations.
It is another set of questions altogether regarding whether China’s violation of WHO regulations constitutes a breach of international law to such an extent that the ICJ would impose sanctions on China, which could include reparations to the respective entities seeking to hold China responsible. According to Giri, China’s actions meet the standards adopted by the UN’s International Law Commission in 2001. To writ, Articles 1 and 2 of Responsibility of States for Internationally Wrongful Acts (2001) provides that an “internationally wrongful act of a State entails the international responsibility of that State,” and defines an internationally wrongful act as an “action or omission” amounting to “a breach of an international obligation of the State.” The key word here is omission. The complaint against China would be that they neglected to report, or omitted key information, and failed to provide timely notification to the WHO as well as the rest of the international community.
In this respect, China was not only in breach of WHO regulations, but also in violation of international law recognized by the UN due to their failure to follow the organization’s notification procedures. Therefore, the international community has clear legal standing to pursue a case in the ICJ. Swargodeep Sarkara,who is an expert in the field of international law is most likely correct in his prediction that bringing such charges would require a “herculean” effort which would be met with strong resistance from China. These plausibilities make it all the more important for near unanimity among UN member states in bringing the complaint before the court.
With sufficient international cooperation, the UN and the ICJ can ensure that any sanctions imposed on China will send a message not only to China, but to the rest of the world. In that regard, timely and transparent communication is the bare minimum responsibility of any nation experiencing a global health risk on its soil. Regardless of one’s view on retributive justice in this case, the main purpose of sanctions should be to protect the international community and its citizens from the next outbreak. The Chinese government clearly violated internationally recognized law, and a precedent must be established to deter similar catastrophic contingencies in the years to come
Journal on World Affairs, UCLA 