COVID-19: suing China?
Q: “Since we know that the strain of the epidemic comes from Wuhan, I was wondering if other countries could sue China for its mismanagement, given the astronomical costs involved in the world?” asks Marc Thibault from Quebec.
A: Several experts in international law have already commented on the various possibilities of prosecution against China, which seem very limited, even if it is widely accepted that the Chinese authorities have delayed in their initial response to the coronavirus and perhaps not be doing everything in their power to contain it when it could still be.
China could be sued by individuals or companies, or by other states, under several mechanisms.
Canadian citizens or businesses seeking redress could go to Canadian courts, as plaintiff groups in the United States have already done. But the chances of success of these steps are extremely slim, not to say zero, if we believe legal experts like Stephen L. Carter, professor at Yale University, whose arguments can be read on the site from Bloomberg.
According to the legal principle of state immunity, enshrined in the laws of many countries including Canada (State Immunity Act) and the United States (Foreign Sovereign Immunities Act), a foreign state cannot be prosecuted before the courts of countries applying this principle, unless it engages in terrorist activity. Two groups in Florida and Nevada intend to demonstrate that China’s actions amount to a form of willful neglect that is akin to terrorism. Not only may it be impossible to prove it, but the possibility of innumerable parallel prosecutions or of retaliation risks cooling the ardor of the judges. Already, two Chinese lawyers have in turn started a lawsuit against the Centers for Disease Control and Prevention of the United States, which is not more likely to succeed, accusing them of also being grossly negligent by failing to put in place measures quickly enough to slow the progression of the pandemic in the United States. Several specialists are already worried about the avalanche of prosecutions that will result from the pandemic, which could paralyze already overwhelmed justice systems. Innumerable players no doubt have a share of responsibility: governments, airlines and other companies and even ordinary citizens.
China could also be sued by other countries under several international health or trade agreements.
The International Health Regulations of the World Health Organization (WHO), the United Nations agency of which 194 countries are members, constitute the benchmark agreement for epidemics. Its last edition, published in 2005, is the culmination of negotiations between countries which began in 1851 for the control of cholera. It obliges Member States to “prevent the international spread of diseases, to protect themselves from them, to control them and to react to them by means of public health action proportionate and limited to the risks it presents for public health, by avoiding create unnecessary barriers to international traffic and trade. ” As is often the case in this kind of grand treaty, there are, however, very few details on how precisely all of this must be done, so that it can apply to all countries, and in all circumstances. The previous versions only targeted specific diseases elsewhere, such as cholera, smallpox and yellow fever. This agreement, as imperfect as it is, is the first designed in the event that new pathogens emerge.
No state has yet formally accused China of failing to fulfill its obligations under the International Health Regulations, and it is highly likely that none will do so, according to the US expert on international law. health David Fidler who published his analysis in Just Security , an international law journal produced by New York University.
On the one hand, he explains, countries know that none of them is immune to a new virus emerging on their territory, or immune to a late reaction in which the leaders put their heads in the sand against the advice of their own experts, as we have seen in the United States.
On the other hand, this agreement, like many other international agreements of the same kind, does not provide for a specific sanction for those who derogate from it, which does not motivate prosecution. David Fidler adds that, throughout history, several countries could have invoked non-compliance with international health agreements during the epidemic of Spanish flu, AIDS or the Zika virus, but none of them. did.
The agreements signed through the World Trade Organization (WTO) also include health obligations. “China has always been, notoriously, the terrible child in health matters, according to official and unofficial reports, as well as according to independent studies”, explains Dan Markus Kraft, lecturer at the University of Montreal and member from the Center for Business and International Trade Law. “But instead of confronting each other directly because of the non-observance of a rule, the victim countries first pass through diplomatic means, then consultations at the WTO before arriving at an arbitrated decision.”
Ultimately, it will be geopolitical considerations that will result in whether or not China is sanctioned by other countries. While it seems to have succeeded, at least for a time, in curbing the epidemic on its own territory, it can weigh heavily in the balance by helping the rest of the world today to get through this crisis, thanks to its economic and scientific power. Who will still want to sue China if it invents a vaccine to end the pandemic?
COVID-19 raises a lot of questions. In order to respond to as many people as possible, science journalists have decided to join forces. The media members of the National Cooperative of Independent Information ( Le Soleil, Le Droit, La Tribune, Le Nouvelliste, Le Quotidien and La Voix de l’Est ), Québec Science and the Center Déclic team up to answer your questions . You have some? Write to us . This project is made possible thanks to a contribution from the Chief Scientist of Quebec , who invites you to follow him on Facebook , Twitter and Instagram .