Contributors from J-K Gadzama LLP:, Geraldine Mbah, Junior Partner, [email protected], Musa Jerry, Associate, musa.jkgadzamallp.com, Ignatius Ozoilo, Visiting Associate, [email protected]
Recently, three cases were filed against China as a result of the COVID-19 outbreak. The cases are seeking billions of US dollars as reparation against China for the outbreak of COVID-19. Of the three cases filed, only one was instituted on grounds of negligence or recklessness in the management and containment of the COVID-19 by the Chinese government. The other cases were filed by different plaintiffs on different grounds of terrorism, crime against humanity & genocide and the spread of bioweapon. The cases are all predicated on the idea that China is responsible for the cause and global spread of coronavirus and therefore must be held liable for the human and material losses suffered by many people around the world.

While the propriety of the contemplated actions is not in doubt, the consternation within the international legal circle is obviously about the complexity of issues associated with extraterritorial litigation of such high magnitude – not list – the legal determination under which the plaintiffs would hope to succeed and how they are going to scale the thick walls of conflict of laws principles.

Coronavirus disease (COVID-19) has in no doubt stunned the world. Its effect has virtually brought the world as we know it to its knees under a lockdown or highly restrictive movement of persons. The World Health Organization (WHO) has since labelled the COVID-19 a world-wide pandemic, a description only ascribed to the world’s worst health emergencies.

So far, more than 2 million people across the continents of the world have been confirmed to be infected with the virus, with this number on the increase by each day. An estimate of about 200, 000 persons have been confirmed to have died from the virus with the figure increasing daily and over 400, 000 persons have also been confirmed to have recovered from the virus, the figure likewise increasing daily.

The havoc caused by this pandemic is colossal. World economic, social, religious, sports and entertainment industries are all at a standstill. More than one-quarter of the world’s 7.8 billion people are now largely confined to their homes, as governments step up curbs on movement and social contact in a bid to contain the virus. In many parts of the world, borders are closed, airports, hotels and businesses shut, and school cancelled. These unprecedented measures are tearing at the social fabric of some societies and disrupting many economies, resulting in mass job losses and raising the spectre of widespread hunger.

The legal actions being instituted aims to capture the essence of shared humanity, which underlines class action litigation – the idea that the loss of one is the loss of all. Argument about legal liability will not only raise factual and evidential questions but most critically questions about legal principles relevant to the unique circumstances of COVID-19 in terms that will give rise to responsibility and possibly restitution.

Of the three causes of action in view, negligence would seem to be most contentious. The lawsuit filed in Florida last month which seeks to make the Chinese government pay for what they’ve done in its handling of the novel COVID-19 outbreak, saying the country acted “negligently in their handling of the COVID-19 outbreak.” The suit filed by a personal injury law firm based in Boca Raton is bringing the suit against China and various Chinese government agencies on behalf of “individuals and business owners in the United States and State of Florida, for damages suffered as a result of the COVID-19 pandemic.”

The suit claims China “knew that COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up in their economic self-interest.” The lawsuit does not name a specific dollar amount being sought from China, asking for “compensatory and other damages to Plaintiffs and the Class Members, for their economic and non-economic damages … to the full extent permitted by the law.” According to Alters, the Chief Strategist of the Firm, “We want the court to make them pay for what they have done, they have unleashed … a massive pandemic on the world. It appears they knew about it long before they gave information about it to the rest of the world. We want our courts to say, ‘China, you are going to be held accountable here in our courts because you have harmed hundreds of millions of Americans.”

By going down this route, the plaintiffs (claimants) are suggesting that China should have exercised reasonable care in their actions in relations to COVID-19 by taking account of the potential harm that they might foreseeably cause to other people and property up and down the world. For them to succeed, they must establish that China not only owes them a duty of care but also that the country is in breach of that duty and the human and material loses the plaintiffs (claimants) suffered are a direct consequence of the breach of that duty. In other words, for there to be any realistic prospect of succeeding with their claim, they must prove the elements of duty, breach cause and harm. From what is known already it is possible to prove harm – that many lives have been lost and there were obviously huge economic loses. It is without question that those loses (human and material) were the direct effect of coronavirus. However, the battleground really is regarding the issue of duty and breach of duty.

While it is a lot easier to pursue this cause under common law and statutory instruments of domestic jurisdictions, the effort to achieve that extraterritorially will prove to be daunting. Certainly, the concept of liability is much more developed in domestic law and its introduction to international law cannot ignore the experience gained in this area in domestic law. The need to develop liability regimes in an international context has been recognized and has found expression mainly in instruments concluded at treaty level between Nations or a cluster of Nations under different regional or business relationships. A good reference is the Principle 22 of the Declaration of the United Nations Conference on the Environment (Stockholm Declaration) 1972, a common conviction was expressed that: States shall co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction. There is also Principle 13 of the Rio Declaration on Environment and Development, which addresses the national and international contexts by broadly proclaiming: ‘States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.’

In effect, liability for any transboundary harm caused by a nation under international law has for now only gained strength through instruments and treaties. The regime is yet to flourish as recognized customary international law. What this means is that, if the People’s Republic of China is to be liable for any form of negligence in the management of the COVID-19 outbreak which has resulted to the loss of lives and businesses in other nations, there has to be an instrument existing that establishes China’s liability where it fails to deal properly and reasonably with an infectious disease and that failures or negligence leads to transboundary injury. It does not appear that such an instrument exists now. So, even if investigations were to reveal that the Chinese government was negligent in the manner it handled the containment of the COVID-19 virus through its policies, such that it resulted to the current global escalation, the likelihood of person(s) affected to maintain an action and secure judgment against China for damages based on negligence is slim, if not completely non-existent.

Where, however, the grounds of such an action were to be centred on matters covered by existing treaties or instruments, the action will have its day in court and be heard on its merit, even though the likelihood of success will also depend on the establishment of required facts to satisfy the standard of proof required under such a treaty or instrument. The territorial jurisdiction of such matters and the mode of enforcement of the judgment obtained will depend largely on the provisions of treaty or instrument being enforced.

Assessing the chances of this suit, which is based on the United States of America’s Class Action Fairness Act of 2005 (CAFA) reveals that its success is rather difficult considering the provisions of the United States’ Foreign Sovereign Immunities Act (FSIA) which prevents Americans from suing other countries except under specific circumstances. The plaintiffs claim they fit under the exceptions for commercial activity and “personal injury or death” that stems from “the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment. A Professor of Law at Yale Law, however, disagrees that the suit falls within the exceptions claimed by the plaintiffs. The progress of this suit will depend largely on the Florida Southern Districts’ Court interpretation of the exceptions claimed by the plaintiffs. It is noteworthy to state that, it remains to be seen if the People’s Republic of China will subject herself to seemingly the domestic laws of the United States for actions claimed to have taken place in China.

Beyond the FSIA difficulties, another likely weakness in the case is the fact that it treats the idea that COVID-19 potentially came from a lab – which has been debunked – as a legitimate “alternative theory.” This could potentially undermine the majority of its case, which pushes the widely understood story that the virus was transmitted from an animal to a human at a wild animal market in the city of Wuhan before China responded to the health threat with obfuscation and censorship.

Generally, actions against Nations on civil liabilities are brought before the International Court of Justice (ICJ) and should be brought by another Nation, multilateral organizations or individuals, where the liability incurred bothers on the protection of human rights only. Some instrument or treaty sometimes provide for dispute resolution mechanism that can be explored by aggrieved Contracting States or their citizens. In such a case, it is expected that all such avenues of dispute resolution should be exhausted before recourse is made to the ICJ.

The second and third suit are all filed by American Lawyer Larry Klayman and his advocacy group. One of it – a $20 trillion lawsuit has been filed against Chinese authorities in the US by Klayman, his advocacy group Freedom Watch along with Texas company Buzz Photos before a Texas District Court in Texas, USA. The lawsuit is against the Chinese government, Chinese army, the Wuhan Institute of Virology, Director of Wuhan Institute of Virology Shi Zhengli and Chinese army’s Major General Chen Wei. The plaintiffs have sought $20 trillion, which is a bigger amount than China’s GDP, claiming COVID-19 is the result of a biological weapon prepared by the Chinese authorities in violation of her treaty obligations under the “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction and Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.

The third is a complaint made before the International Criminal Court (the ICC). Klayman and his advocacy group have equally submitted a complaint before the ICC on the same facts as the civil suit alleging that the Chinese government have used the COVID-19 via facilitating its outbreak worldwide, especially against citizens of the United States of America (USA), her perceived enemy and whom it is in a trade world with to perpetrate crimes humanity in violation of Article 5 of the International Criminal Court Statute (known as the Rome Treaty). The Complainants are inviting an investigation into the circumstance of the outbreak which they believe will validate and vindicate their claims against the Defendants.

The particulars of both suits accuse China of aiding and abetting death, provision of material support to terrorists, conspiracy to cause injury and death of US citizens, negligence, wrongful death, and assault and battery. They allege the virus had released from the Wuhan Virology Institute. The plaintiffs stated that the COVID-19 virus was “designed” by China to kill mass populations. Biological weapons were outlawed in 1925 and hence such a biological weapon is a terrorist-related weapon of mass destruction, the lawsuit mentioned. The American group cites multiple media reports that said that there was only one microbiology lab in China that handled advanced viruses like the novel COVID-19 – in Wuhan. To cover-up, the plaintiffs alleged, China-linked statements COVID-19 with national security protocols. Klayman and the plaintiffs also alleged that Chinese doctors and researchers who spoke out about COVID-19 and “raised the alarm to the outside world internationally” have been “silenced”. They added that such was the desperation of Major General Chen to save herself from the virus that she injected herself and six members of her team with a potential vaccine that was yet to be tested. They also alleged that all the defendants were working together to perpetuate “international terrorism”. The lawsuit stated that while COVID-19 is slow-acting and slow-spreading to be used against a country’s military, “it was designed to be used against the general population of one or more of China’s perceived enemy nations, such as the United States.” The American plaintiffs also asked for a jury trial against the Chinese defendants. As of now, there is no official communication from the ICC on the complaint.

While the objective of those legal actions is genuinely remarkable, the absence of any authoritative report either by an investigative bodies, or any national or international organization on the circumstances surrounding the origin, containment and spread of the COVID-19 pandemic will make it extremely difficult to achieve the desired outcome. Available information at this time is merely conjectures, logical theories and fantasies and most notably the Chinese Government is yet to provide sufficient information about the COVID-19 pandemic considering that it originated within one of its provinces, the matter is bereft of absolute certainty. Certainly, for anyone’s quest to sue the People’s Republic of China for negligence over the COVID-19 outbreak to bear any fruit, it is believed that more information, particularly about its origin, containment and spread, is required.

Contributors from J-K Gadzama LLP:, Geraldine Mbah, Junior Partner, [email protected], Musa Jerry, Associate, musa.jkgadzamallp.com, Ignatius Ozoilo, Visiting Associate, [email protected]