11 April 2020 11:24 AM GMT
The pandemic spurred by coronavirus from China has been rightly agitating the minds of angry people around the world. However, if China is to be fixed or held liable for the injury or harm caused by coronavirus, then it's necessary to prove that China released the coronavirus and the said coronavirus is the proximate cause for the deaths elsewhere outside China. Besides, it's necessary to...
The pandemic spurred by coronavirus from China has been rightly agitating the minds of angry people around the world. However, if China is to be fixed or held liable for the injury or harm caused by coronavirus, then it's necessary to prove that China released the coronavirus and the said coronavirus is the proximate cause for the deaths elsewhere outside China. Besides, it's necessary to show that China was under a definite legal obligation to stop the coronavirus from traveling outside its territory into the US or elsewhere.
To begin with, there is no dispute that coronavirus emerged in the Wuhan seafood market which is a part of China (assuming it was not man-made). At least, there is no dispute that, Chinese in Wuhan were the first to suffer infection from coronavirus. Then, moving to the second part of the first question, the answer is a bit tricky. China may say, coronavirus didn't reach shores of any foreign State through Chinese products. China may also stress that coronavirus didn't reach through visiting Chinese citizens. How coronavirus transmitted into the US or elsewhere is an issue that doesn't have easy answers at a trial. This area needs a fuller investigation by the complaining State.
The proof of nexus between deaths elsewhere outside China and coronavirus is a medical question. It is not necessary to show that each death was caused by coronavirus as a proximate cause. But, it's necessary to show by an impeccable expert opinion that coronavirus was a deadly biological material which most probably caused the deaths of thousands as recorded in records maintained by the hospitals. China may argue that deaths were caused by contributory factors. China may try to highlight delayed response and failure in taking necessary care by the complaining State for two months from 31.12.2019 onwards when it informed through the World Health Organisation. There can be equally an opposing argument that China delayed reporting and even after it has reported, it has not been transparent in fully sharing the data as mandated by WHO guidelines or otherwise.
Coming to the last, which is more important, it's a trite proposition of law that no injury is actionable unless it's a violation of some right. Damnum Sine Injuria is a maxim, which refers to an injury that is being suffered by the complaint but there is no violation of any legal right of a person. In such circumstances, where there is no violation of the legal right, the wrongdoer cannot be sued. The legal right may be a positive right vested in the complaint or breach of duty cast on the injurer. On this question, China may say it was under no obligation in any international law to stop coronavirus from travelling outside China. However, this ignores the legal position that a State is under obligation - not to cause harm or injuries across the border (Transboundary harm) by its acts or omissions. The International Law Commission has codified the rules in this regard. In private law, negligence is an actionable wrong. A duty to take reasonable care is cast on everyone. Can this law of torts be applied between two sovereign States? The answer seems to be prima facie in affirmative.
If China is liable, then it is indeed obliged to compensate the injured State or its inhabitants. However, who will adjudicate that China is liable? International law is still far away from the concept of the rule of law. There is no compulsory jurisdiction vested in the International Court of Justice or any judicial forum. ICJ's jurisdiction is by agreement or prior acceptance under some treaty etc. There is no such acceptance by China. Therefore, there is no prospect of suing China as tortfeasor unless China comes under the pressure of the international community and agrees to submit to the jurisdiction of ICJ or some judicial forum.
Some suits are filed in US courts claiming damages against China. However, the domestic court cannot compel a foreign State to answer its process. China enjoys a sovereign immunity prima facie. No doubt, some interesting arguments have been raised that no such sovereign immunity can be claimed by China when the complainant is founded on human rights violations. If the US court were to entertain such suit and decree, how will it be enforced against China is the next question? The US may approach the Security Council of the United Nations for imposing sanctions against China but, it's unlikely to succeed as China will exercise its veto power. In fact, China has already opposed any discussion on coronavirus. In such case, what US may do ? US may retaliate by trade sanctions. The US may demonetise it's dollars. It may even expropriate properties and debt bonds of Chinese in the US. China owns about $ 3 trillion. This may be the weak part of the case of China.
Advocate Mohan Katarki is a Senior Advocate at the Supreme Court of India.
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