Can China be held accountable for the coronavirus pandemic?

What started in November last year as a small outbreak of an unknown virus in Wuhan’s Chinese industrial hub is, almost six months later, a pandemic that has claimed the lives of more than 240,000 people. A disease that will cause the world economy to shrink by at least 3% and that puts one in two jobs at risk on the planet at risk.

With countries going into debt to finance attempts to contain the covid-19 contagion, millions of companies without income and entire sectors such as tourism paralyzed overnight, voices are beginning to be heard calling for responsibilities. And several accusing fingers point to China.

“There are many ways to hold you accountable. We are conducting very serious investigations, as you probably know, and we are not happy with China, “US President Donald Trump said last week at a press conference.

“We are not happy with the whole situation because we believe that [el virus] it could have been detained at origin, it could have been stopped quickly and it would not have spread throughout the world, ”he assured in an intervention in which he left open the possibility of requesting financial compensation from the Chinese state.

During the Fox News interview, Trump reiterated his accusations against China for failing to stop the spread of the virus: “I think they made a horrible mistake and didn’t want to admit it.”

An idea that he reiterated this Sunday during an interview offered to the American media Fox News and in which he promised a “conclusive” report on the Chinese origins of the coronavirus outbreak.

In Germany, the newspaper Bild He already made the accounts of the economic damage that the pandemic has left in the country in an editorial titled “What China owes us”: about U $ 160.000 millions.

Around the world, companies and individuals have considered the possibility of demanding reparation from the Asian giant for its actions at the start of the outbreak and its delay in communicating it.

Donald Trump suggested this week that he could seek compensation from China for the covid-19 pandemic.

Among them is Franklin Ordóñez, a 62-year-old Ecuadorian who in March lost his older brother to the covid-19.

“Someone has to answer for all the people who have died in the world“he tells BBC Mundo by phone from Guayaquil, the Ecuadorian city most hit by the virus. A city where dramatic scenes of corpses abandoned on the street by their relatives came to be seen, after hospitals and funeral homes collapsed.

“It gives courage to know that by irresponsible people, practically the world is detained,” says this lawyer and politician who says he is using his savings to live by not being able to work for quarantine.

Despite the lack of evidence, Ordóñez is convinced that the virus was created in a Chinese laboratory: “Its neighboring provinces were not contaminated as the rest of the world was contaminated. United States, with everything it has in its biological arsenal to take care of itself , was not able to contain this avalanche. “

The Ecuadorian, who had not seen his brother for a couple of months and was unable to say goodbye to him, wants China to pay for the consequences of the pandemic: “I believe that all the people who have suffered the loss of your loved ones”.

Mission Impossible?

But how feasible is it to sue China for its management of the new coronavirus?

“Another country would have to do it, that it would have to find some form of international obligation that China has violated ”, assures Wim Muller, expert in International Law of the think tank British Chatham House.

“The second thing would be to find a court and a jurisdiction, and that is always difficult, also in international law because, in general, states are not willing to give a court the power to judge their legal conduct,” he tells the BBC. World.

“For example, you have the International Court of Justice (ICJ) in The Hague, but it depends on the prior consent of the States.”

China has begun to relax quarantine.

But, as Muller explains, “whenever you can,” China refuses to submit tol opinion of any external court.

Muller believes that, of all the mechanisms that have been suggested, the most likely to have China sit on the bench in The Hague would be the use of Article 75 of the Constitution of the World Health Organization (WHO).

“According to this, if there is a dispute to be seen specifically about one of the provisions of the Constitution, that is, that China has violated one of the obligations contained therein, then another State could take it to the ICJ,” he explains, pointing out that it is of a possibility on which a large question mark floats.

“Still, you should first try to negotiate [con China] or submit the dispute to the World Health Assembly, “he says, referring to the WHO’s decision-making body.

Joaquín Alcaide, professor of Public International Law at the University of Seville, in Spain, explains that if he were to take China to the ICJ, it would be necessary to define well if he was accused of being responsible for something because happened within their territory or why did not fulfill its international obligations.

“Here [en el último caso], you might be wondering if China is responsible for everything that happens [ahora] in the world”.

Warden believes that the most feasible way is diplomatic.

“You can send a demand or requirement through diplomatic channels,” he says.

“There are some facts, some foundations of law and what is requested, which may be compensation or an acknowledgment of guilt.”

Immunity from jurisdiction

Franklin Ordóñez, however, believes that individuals, such as himself, may seek compensation from China directly through an internal court in another country.

For this reason, he assures that he is waiting for “new investigations” to come up with a specific complaint against the Chinese state and to adhere to the class action lawsuit who has raised an American law firm, Berman Law Group.

Franklin Ordóñez lost his brother to covid-19.

“China is known for destroying evidence, for removing it, and for hiding it, so we need to access what really happened as soon as possible“says Jeremy Alters, spokesman and chief strategy officer for the Berman Law Group.

The firm has filed two of several lawsuits against Beijing that have been filed in US courts.

These range from complaints such as the one made by Buzz Photos, a study that photographs school events in Texas that accuse it of having designed the new coronavirus as a biological weapon; even those made by the attorneys of the States of Missouri and Mississipi, who blame the Asian giant for having caused a pandemic for not having made enough effort to stop the outbreak and for not communicating its characteristics quickly and transparently.

The Berman Law Group complaint now more than 14,000 applicants from 46 countries, among which there are companies and relatives of covid-19 victims such as Ordóñez.

Nitsana Darshan-Leitner is the president of the Israeli NGO Shurat HaDin, which is also preparing a collective complaint against China.

And she is convinced that she will have no trouble finding plaintiffs or experts willing to tackle the question of whether or not China is responsible for the pandemic.

“The biggest obstacle will be the argument of the immunity from jurisdiction, to which China is entitled under the law. Now we are looking at ways to take that apart, “he tells BBC Mundo by phone.

Immunity jurisdiction is a principle by which a State, being sovereign, cannot be prosecuted abroad.

“You cannot sue a foreign government in the courts of another country, with a few exceptions,” explains University of Chicago professor of international law Tom Ginsburg.

Guayaquil has been one of the cities most affected by the coronavirus.

So what probability of success does he believe these collective complaints raised in the US have?

“Basically zero,” he replies.

Under the US Foreign Jurisdiction Immunities Act (FSIA), immunity from jurisdiction may be broken in some cases.

“One is if a foreign government engages in a commercial activityLet’s say that a public company sells something in the US, it could be reported, “explains one of them.

“Another is what we call ‘grievance‘, which is when you accidentally cause damage, but this must come from an act committed within the United States, “he clarifies.

“These complaints claim to be within these exceptions, but when you read their arguments, they are not really very convincing,” he tells BBC Mundo.

Instead, Matthew Moore, lead attorney for the Berman Law Group, argues that the grievance did occur on US soil.

“They already knew in late December, early January at the latest, that there was human-to-human transmission, that the virus was prone to being dangerous, and allowed people to travel from Wuhan around the world,” he tells BBC Mundo.

“These people were, practically like a viral bomb, ready to explode anywhere. The fact that they were allowed to leave makes them agents of the State, of China, and they are spreading the virus in the USA. so the grievance is in the US, “he says.

Moore also assures that if the coronavirus originated in a laboratory or in a market, both places carry out commercial activities so the other exception would also count.

Missouri is one of the states that has denounced China for the pandemic.

The lawyer also adds that his complaint will be modified to include the Communist Party of China (CCP).

“It is an independent organization, not a country, which means it cannot hide behind immunity from jurisdiction.”

But that is something that Wim Muller has doubts about: “For example, if you try to denounce Xi Jinping [presidente de la República Popular China]you wouldn’t have a chance [de ganar], because he is the head of state. It is also protected by immunity from jurisdiction, and minor officials as well. “

Both Muller and Ginsburg believe that this type of complaint by law firms and state attorneys general just looking “advertising“.

“The way these class action attorneys work is that they have many active lawsuits at the same time, many of which have little chance of success, but if they do succeed, they are a good sum,” explains Ginsburg.

“The chances may be slim, but if it works it’s $ 1 trillion, so why not give it a try?” He laughs.

“We have about 24 or 25 people working on this every day,” says Jeremy Alters of the Berman Law Group.

“We have spent a lot of money on this and we are going to continue spending it and it is our own money, so we would not be taking a risk if we did not believe in the case and we did not believe that we can win.”

Plaintiffs like the Berman Law Group hope to get financial compensation that would be collected by seizing Chinese property in the United States.

Alters says that while nothing can be done about lost lives, it can be “at least get back what was lost“ financially due to the pandemic.

“China allowed this virus to leave Wuhan and failed to inform the world about the virus in detail so that we can protect ourselves. They are responsible for that.”