A question no doubt being considered by individuals, and hopefully our Government, is whether action can be taking against China? This should not be considered an attack on China, but a question concerning the liability of a country responsible for causing a Pandemic.
In English law there is an established and historic legal precedent, in the case Rylands v Fletcher reference UKHL 1 (1868) LR 3 HL 330. It established the rule that if a person brings onto his land and keeps anything which is likely to interfere with another person’s rights and it escapes that person is liable under the principle of what is known as strict liability.
Could this principle be extended internationally?
Lawyers in the United States have already launched a class action involving 40 countries including Britain against China claiming trillions of dollars. Other actions are said to be in contemplation on behalf of the death of health workers denied safety equipment from China. Regrettably it is not straight forward.
The first obstacle is the doctrine of Sovereign Immunity. This means that under traditional circumstances the acts within a state cannot be susceptible to claims by another state save for war or aggression.
One question is whether this was truly a virus over which the Chinese authorities had no control until it manifested itself or was it an experiment in germ warfare which escaped from the laboratory in Wuhan? Would that not be considered an act of war? If so, what is the appropriate response – global world war?
Assuming for the purposes of argument that it wasn’t or alternatively, as is more likely, that we shall never know, does a potential action arise against China?
Under the Foreign Sovereign Immunities Act (“FSIA”) of 1976 in which the US was a signatory, intended to provide “protection of foreign sovereigns from the burdens of litigation, including the cost and aggravation of discovery”. It is assumed that this refers either to the general discovery of the cause of the problem or, in legal terms, the procedural requirement to formally disclose relevant material such as documents, etc.
Ironically the US Supreme Court ruled that a foreign country need not even file an answer to a complaint. There are said to be exceptions to the FSIA, one apparently relied upon by the Florida class action referred to above is “for death or harm caused by 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”.
There may also be an exception if the laboratory was run by a private concern. It is difficult to imagine the lab, whether for genuine research or for the development of germ warfare would be run other than by the Communist state. It is proposed that such legal action will force people and states to somehow internalise the costs of their behaviour.
There is no doubt that China has behaved recklessly. It has caused more profound damage globally to many countries’ economic situation, as well of the deaths of countless persons. Whatever China may claim, it is almost as devastating as an atomic bomb or a number of such devices.
If a claim can be successfully made, would China be able to claim, by mitigation of the claim, contributory negligence on the part of those countries affected by their slow or negligent response? This could only arise if it was not an experiment in germ warfare. It would also require disclosure, if the exception above can be overcome, for detailed evidence of when the Chinese Government first became aware of the Coronavirus. In addition, having done so, failed to alert the world to its presence.
If it could be established that it was an experimental germ war fare product, would this amount to an act of terrorism? If so, does this overcome the claim of sovereign immunity?
It is an interesting concept and one which should be open to debate by Governments and international jurist globally.
John Davis
International Lawyer.
Davis-Law Associates