Source: Jerusalem Post, By ALAN ROSENBAUM MAY 27, 2020 13:51
The Stop COVID Act would make China legally and financially liable for damages caused by the virus in the US.
Can the Chinese government be held legally accountable for the spread of the coronavirus around the world? Does China’s suppression of early reports of the virus, its delay in reporting to the World Health Organization, and its failure to impose immediate travel restrictions on travelers to and from China make it subject to lawsuits from private individuals and other countries?
“Can China be sued for the spread of COVID-19” was the subject of a recent online discussion panel sponsored by Shurat HaDin – Israel Law Center. The panel included Tennessee Republican Sen. Marsha Blackburn; John Bolton, former national security advisor and US ambassador to the UN; Gordon G. Chang, columnist, author and lawyer; and John B. Bellinger III, legal adviser for the US Department of State and the National Security Council during President George W. Bush’s administration. The panel was moderated by Nitsana Darshan-Leitner, director of Shurat HaDin.
Describing the difficulties of making a legal claim against a sovereign country, Darshan-Leitner explained that in the United States, foreign countries have what is known as “sovereign immunity,” which bars lawsuits against foreign governments and states. “In order for countries to function and for governments to carry out their policies and do business with other countries, they need to be immune from legal actions, or criminal actions. This is in order to let them function. Otherwise, they will be scared of being sued in everything they do.”
Darshan-Leitner noted that countries that support terrorism and have been designated as such by the State Department, do not enjoy sovereign immunity, and lawsuits can be brought against them. Shurat HaDin, which has utilized court systems around the world to fight terrorism and safeguard Jewish rights worldwide, has brought lawsuits against countries that have been designated as state supporters of terrorism.
Sen. Blackburn, together with Arizona Republican Sen. Martha McSally is sponsoring the Stop COVID Act in the Senate, which would make China legally and financially liable for damages caused by the novel coronavirus in the United States. In the same way that sovereign immunity does not protect terrorist states, the proposed legislation would eliminate the sovereign immunity for states that spread biological agents.
Darshan-Leitner says the US has in the past removed sovereign immunity from states that support terrorism when they have not posed a serious threat. “When the United States wants to lift sovereign immunity, they do it to countries that are not going to take revenge or are too weak to take revenge.” For example, the US has removed sovereign immunity from countries such as Iran, Syria, Cuba, and North Korea. Removing sovereign immunity from strong and powerful countries can be difficult. “China could take revenge, and that’s the fear of legislating the law that Sen. Blackburn has sponsored.”
At the virtual roundtable, Bolton also expressed reluctance to remove China’s sovereign immunity. The former diplomat noted that while it would be politically appealing to many, it would insert the US judicial system into an international controversy and would lead to long-drawn-out proceedings that would not lead to justice. In addition, securing evidence from the Chinese and enforcing judgment would be difficult. The primary objection to waiving China’s sovereign immunity, he said, would be the harm that it could cause to the US’s national security and its interests abroad, should China then remove Washington’s immunity in return.
Bolton suggested that the US and other countries need to make a fundamental pivot in the way that we deal with Beijing. “They have abused their place in the international financial system for a long time,” he said. “The structural way in which China addresses the rest of the world has to change.”
An alternative proposal was posed by Chang, who suggested that individuals could sue the Communist Party of China, thereby sidestepping the issue of sovereign immunity, since the party is technically not the state. Darshan-Leitner says that while one might be able to win such a judgment in court, other difficulties might present themselves. “What would you do with the judgment if you won?” she asks. In order to collect, one would have to locate assets that actually belong to the Communist Party. “You would have to show that the assets of the government are really the assets of the Communist Party. That might be an obstacle that you won’t be able to overcome.”
Equally improbable, she explains, would be taking the case to the International Court of Justice in The Hague. To bring such a case to the court, China would have to offer its consent, which is most unlikely. Additionally, cases tried in the ICJ are between states, and individuals could not sue China in that setting.
Bellinger agreed that holding the Chinese accountable through lawsuits would not work. He suggested that countries will have to apply diplomatic pressure in concert, or through international organizations, publicly and privately, applying economic levers, and calling for investigations, in order to obtain any relief from the Chinese. Together, these methods may put enough pressure on the Chinese to get their attention.
Despite the inherent risks involved of removing sovereign immunity from China, Darshan-Leitner says that one possible way to permit lawsuits would be to compare China’s negligence with the coronavirus to terrorism. In such a case, even if China may balk at paying off claims, Darshan-Leitner says the victim’s home country might elect to partially compensate victims. “If the country doesn’t want to go through a whole struggle with China, they have to find ways to compensate the victims from their own money, and then diplomatically, try to get some compensation from China, though it wouldn’t be publicly acknowledged.”
Similarly, Darshan-Leitner says many victims of Iranian terrorism who were awarded money by American courts using the terror exception for sovereignty against Iran never actually received the money from the Iranians. US authorities, she explains, in order to try to reach a solution to pay some of these judgments, created a fund that annually pays a portion of these enormous judgments. “Bringing lawsuits will not necessarily win in the path that the victims planned,” says Darshan-Leitner, “but it does create pressure and it does bring governments or other bodies to take the victims’ consideration into account and try to compensate them.”
Darshan-Leitner adds that many countries that have extensive commercial relationships with China, such as Israel and Australia, have the leverage to approach the Chinese to make them accountable for the spread of the coronavirus. Nevertheless, she says, “I’m not sure that these countries would want to go head-to-head against China if they do not agree to offer compensation. In the end, it all comes down to political and diplomatic considerations.”