Is the US Class Action lawsuit an exercise in futility?
This handout illustration image obtained February 27, 2020 courtesy of the National Institutes of Health taken with a scanning electron microscope shows SARS-CoV-2 (round blue objects) emerging from the surface of cells cultured in the lab, SARS-CoV-2, also known as 2019-nCoV, is the virus that causes COVID-19, the virus shown was isolated from a patient in the US. Picture: AFP.
The US Class Action $20 Trillion Lawsuit Against China:
An exercise in futility?
~ Ssali Rose
In an unprecedented move, a $20 trillion lawsuit has been filed against Chinese authorities in the US over coronavirus outbreak. American lawyer Larry Klayman and his advocacy group Freedom Watch along with Texas company Buzz Photos have filed the lawsuit 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 are seeking $20 trillion, which is a bigger amount than China's GDP, claiming coronavirus is the result of a biological weapon prepared by the Chinese authorities.
They have accused 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 was released from the Wuhan Virology Institute. The plaintiffs state 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.
In approaching the courts for relief, an aggrieved person or persons or their legal representatives will have considered a few things:
Jurisdiction refers to a territory in which the court has the right, power, and authority to administer justice by hearing and resolving conflicts.
The first question that comes to mind in an international case potentially involving conflict-of-laws problems is which court has jurisdiction to adjudicate the matter. Although the plaintiff decides where to sue, the courts in that location may not have jurisdiction, or they may have jurisdiction but be unwilling to exercise it, for reasons of forum non conveniens (Latin: “inconvenient forum”), as may happen in some common-law countries.
II.Nature of the case: Is it a civil or criminal matter?
We know that often a matter that is tortious in nature can also have a criminal aspect to it. A driver who causes a car crash because he was driving under the influence may be sued for damage and also be held criminally liable for accident.
If this is in fact a crime against humanity by China, having deliberately and calculatingly unleashing the virus upon the world or through neglecting to contain the virus in its labs at the Wuhan Institute of Virology, where does one go to bring charges?
Recourse: International Criminal Court?
The International Criminal Court (“the ICC” or “the Court”) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
On 17 July 1998, a conference of 160 States established the first treaty-based permanent international criminal court. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties.
Over 120 countries are States Parties to the Rome Statute, representing all regions: Africa, the Asia Pacific, Eastern Europe, Latin America and the Caribbean, as well as Western European and North America.
Under what conditions does the ICC exercise its jurisdiction?
When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC. These conditions do not apply when the Security Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office of the Prosecutor.
Who can be prosecuted before the ICC?
The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators.
So, as aggrieved individuals we cannot lay criminal charges against the Chinese government, head of state and government, its army or the Wuhan Institute of Virology before the International Criminal Court given the detailed treatise above.
III. The Political Reality.
With China’s emergence as a major power and America’s hegemonic ambitions tested in successive wars, the contradiction between a booming commercial relationship and conflict associated with geopolitical and ideological differences will continue to constitute a serious challenge. The long-term goal for each side will be to forge economic ties strong enough to create a stable political relationship, rather than to be held hostage by geopolitical constraints. Will the US government stand by and allow a group of its citizens to jeopardise its relationship with China or will it please national interest over individuals’ interest? Standing between a hard place and a rock, the US government must make that choice.
Sovereign immunity traces its origins from early English law. Generally, it is the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution.
The doctrine of foreign sovereign immunity provides that a foreign state generally is immune from the jurisdiction of the courts of another sovereign state. State immunity developed as an “undisputed principle of customary international law” and the law of nations based upon core aspects of sovereignty applicable in common law, civil law and other judicial systems. Until the mid-Twentieth Century, sovereign immunity from the jurisdiction of foreign courts was almost absolute.
More recently, the United Nations, which had been working on state immunity issues for decades, finalized its own restrictive approach to state immunity through the United Nations Convention on Jurisdictional Immunities of States and Their Property (the “UN Convention”). The United Nations General Assembly passed the UN Convention on December 2, 2004 and the treaty is currently open for signatures through 2007. (The Belgian Constitution 2009) If widely adopted, the UN Convention may serve as a new international norm in the field of state immunity.
It all boils down to Sovereign Immunity.
It is my humble opinion that even though the class action lawsuit against China to the tune of $20 Trillion might excite the public and elicit legal debate, it is highly unlikely that the plaintiffs will gain more than notoriety for having instituted the case.
The lawsuit might give rise to dissertations and theses which will fill up the shelves of law school libraries and add to the body of jurisprudential content. It will stimulate legal discourse and whip up a Social Media frenzy of opinions for a while before dissipating into thin air like the fog that is clouding many minds right now, causing all manner of opinions to be taken for truth with no legal basis whatsoever.