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A Target Beyond Range

Manik Sethi, Muskan Gupta & Dr. Komal Sandhu
1 May 2020 12:11 PM GMT
A Target Beyond Range
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The COVID-19 pandemic has affected the world with unprecedented consequences. People all around the globe are suffering, and yet at the same time are battling against it with equanimity. All professions are playing a role of a servitor to help the world escape this perilous situation. Lawyers have among all occupations (with the exception of the doctors and the police officers) endeavored to protect and indemnify their clients against the humongous losses suffered by them in this conundrum. To do so, some attorneys decided to "sue China" for the damages even though such an action may provide no meaningful recovery.

In the United States, five law suits have been instituted against the People's Republic of China and the latest been filed by the State of Missouri. The list of the law suits filed are as below:

  1. In the District Court of Florida dated 12.03.2020.
  2. In the District Court of Texas dated 17.03.2020.
  3. In the District Court of Nevada dated 23.02.2020.
  4. In the District Court of California dated 26.03.2020.
  5. In the District Court of Missouri dated 21.04.2020.

Out of these five "class representation" suits, the one filed by the State of Missouri got an extensive admiration from various quarters including the President and the National Security Advisor of the United States. This suit is more well drafted and has the additional grounds for satisfying the maintainability of the suit. Each of the five suits have pleaded the same ground for the maintainability of the suit, but such a same is not maintainable by virtue of the Foreign Sovereign Immunities Act, 1976 (FSIA). The suit filed by the State of Missouri will be taken as the main case because it is more comprehensive in nature and has embodied all the grounds vital in the other four suits. It also specifies some separate grounds to avoid the applicability of FSIA in this particular case.

FSIA AND THE ISSUE RELATED TO THE MAINTAINABILITY:

This Act provides for an immunity to a foreign state (including its agency and instrumentality) from the jurisdiction of the Courts in the United States. Such an act adopted in the year 1976, forms the `sole basis' for adjudicating the disputes relating to a foreign state, and provides for `a comprehensive set of legal standards governing the claim of immunity'. Nevertheless, this immunity is not absolute. There are some exceptions to it, and the presumption of immunity to a foreign state can be rebutted if the complainant satisfies the Court that the case attracts any one of such exceptions.

In each of these five instituted suits, the court trying it is bound to determine the following two issues before issuing the process:-

  • whether the opposite party comes under the definition of a foreign state? and;

  • (If Yes) Whether any of the exception to the immunity is applicable to the facts of the case?

  1. Whether the defendants qualify to the definition `Foreign State'?

The 28 U.S Code, Chapter 97 deals with "Jurisdictional Immunities of Foreign State". Section ("§") 1603 defines the term 'foreign state' and it includes the political subdivision, the agency and the instrumentality of the foreign state.

The defendant(s) is almost the same in all the five suits instituted, and in each of these suits the plaintiffs are solely relying on the grounds of "exceptions", indicating that the defendant(s) qualify the statutory definition of a `foreign state'. However, the State of Missouri (among other common defendants) have impleaded the 'Communist Party of China (CPC)' as a defendant, and it attempts to escape the liability of FSIA. It states that CCP has a prominent status in China and that it "exercised direction and control" over all the other defendants mentioned in the complaints. To substantiate their argument, they have relied on an unreported Michigan Federal District Court`s opinion that the CCP is not entitled to immunity under the FSIA. This opinion also hosts different views of the Court, which states the complete opposite. The opinion of a US Court of Appeals, Second Circuit in China Central Televisions (CCT)[viii] case upheld on appeal that CCT is an instrumentality of China as it is the `mouthpiece of the Chinese Communist Party'. Even the Federal District Court in Florida in Saludes[x] case held that the communist party of Cuba comes under FSIA, as the same is an instrumentality of Cuba. Further, to deal with the confusions related to the "agency or instrumentality", the United States Supreme Court stated that FSIA will be applicable and the immunity shall be given in cases where the foreign state is "real party in interest" or is "an indispensable party".

In view of the above statutory law and the observations of different courts including the Supreme Court- it can be concluded that in all the five cases the People's Republic of China is the real party in interest and should come under the statutory definition of a `foreign state', and thereby become immune from the jurisdiction of the Courts, subject to the applicability of the exceptions discussed below.

  1. Whether the Plaintiffs satisfies any exceptions to the immunity?

In the five suits instituted by different States, they have relied on three exceptions to the immunity namely- the exceptions for commercial activities, the exceptions for territorial torts and the exceptions for JASTA (Justice Against Sponsors of Terrorism Acts). The alleged act from all the five complaint can be summarized by the opening passage in the complaint filed by the state of Missouri, which states as:

"During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistle-blowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment—thus causing a global pandemic that was unnecessary and preventable."

Exceptions for Commercial Activities:

To satisfy an exemption related to commercial activity, either one of the conditions have to be fulfilled:

  • An Act carried in United States, or
  • An Act performed in United States, or
  • An Act carried somewhere else but has a `direct effect' in the United States.

In the present cases, none of the above conditions are fulfilled. The act is neither carried out in nor performed nor has any `direct effect' in the United States, as the Supreme Court and the Federal Court while interpreting the term "direct effect" held that it should be `an immediate consequence' of the defendant`s activity and not an activity which is `too remote and attenuated'. If someone has to be blamed in the USA, it should be its executive branch for their contributory negligence to curb the fatal virus. The government`s negligence and its slow response has directly affected these respective states with unforeseeable crisis.

Exceptions for Territorial Torts:

All five suits further relied on the exception of territorial torts, to exclude the defendants from the scope of FSIA. This exemption gives the right to the complainant to seek money damages for tortious act or omission from foreign state for

  • personal injury; or
  • (ii)death; or
  • (iii)damage to property; or
  • (iv)loss of property.

But it excludes the claim "based upon an exercise of or failure to exercise a discretionary function[xvii]," as well as claims for misrepresentation or deceit[xviii]. In view of the above, though the complaint recites all the statutory provisions relating to the exceptions, it however does not satisfy the requirements of any of them.

Exceptions for JASTA:

JASTA was enacted shortly after the fifteenth anniversary of the 9/11 attacks[xix] on the United States. It expands the jurisdiction of the U.S Courts over the foreign state in cases where the foreign state`s activity has resulted in any kind of personal injury to any person or property or caused any death in the United States. The activity can either be a result of an act of international terrorism or could be a tortious act of a foreign state. But it excludes the jurisdiction of the U.S Courts in cases where the alleged activity is a result of a `mere negligence'. In the absence of any scientific evidence to prove the "theory of bioweapon" and of any pleading to rebut the exemption of a `mere negligence', the mere reciting of the statutory provision will not give any remedy to the complainants.

CONCLUSION

It can be wisely concluded that the filing of such suits in United States on the current global disorder will not provide anything beneficial, except for the media attention. If they are desirous of anything fruitful then they should endeavor to investigate the development of the COVID-19 pandemic and the reasons for its outbreak qua the role of China. If they are successful in gathering the evidences (if any) against the People's Republic of China then they may seek for greater substantial remedies i.e international remedies, where China is also a party. For example - a representation for `Crime against humanity' under Article 7 in the International Criminal Court; or a representation under Article 7 to the U.N Office of Disarmament Affairs under the `Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction'; or a representation under 'Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare' to the International Committee of Red Cross, Geneva; or a representation under `international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities)' to the 'International Law Commission'.

Views are personal Only.

(Mr. Manik Sethi and Ms. Muskan Gupta is an advocate practicing in Delhi and Dr. Komal Sandhu is an Asst. Professor at School of Law, Ansal University, India).


28 U.S. Code §1604- "Immunity of foreign state from jurisdiction".

See U.S Supreme Court decision in Agrentine Rep. v. Amerada Hess, 488 U.S. 428 (1989).

See U.S Supreme Court decision in Verlinden B.V v. Cenral Bank of Nigeria, 461 U.S. 480 (1983).

28 U.S. Code §1605- "General exceptions to the jurisdictional immunity of the foreign state".

28 U.S. Code §1608- "Service; time to answer; default".

28 U.S. Code §1603- "Definition".

See Federal District Court of Michigan decision in Yaodi Hu v. Communist Party of China, 2012 WL 7160373.

Chen v. China Central Television, No. 07-3882-cv (2d Cir. Apr. 7, 2009)

Appeal against the District Court of New York decision in Chen v. China Central Television, 2007 WL 2298360.

Saludes v. Republica De Cuba, 577 F. Supp. 2d 1243 (S.D. Fla. 2008). See also Hernandez-Caballero v. United States Attorney General, 250 Fed.Appx. 275, 278.

See U.S Supreme Court decision in Samantar v. Yousuf, 560 US 305 (2010)

See U.S Supreme Court decision in Republic of Philippines v. Pimentel, 553 US 851 (2008)

28 U.S. Code §1605 (a) (2).

28 U.S. Code §1605 (a) (5).

OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 396 (2015).

Intercontinental Industries Corporation v. Wuhan State hold Industrial Holdings Co. Ltd., 726 Fed (appx.) 619 (Mem.) (9th Circuit, 2018).

28 U.S. Code §1605 (a) (5) (A).

28 U.S. Code §1605 (a) (5) (B).

Justice Against Sponsors of Terrorism Acts, Pub. L. 114-222, Sept. 28, 2016, 130 Stat. 854, codified at 28 USC §1605B.

28 U.S. Code §1605(B) (d)



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