COVID 19 Outbreak And The International Liability Regime: A Legal Perspective On The Class Action Complaint In Texas District Court

The outbreak of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) called as COVID 19 in China and subsequently spread to all over the world is a pandemic and threatening situation for the entire humanity. It has resulted in taking away the life of lakhs of people and is creating hardships to millions of people around the globe. Flights and other means of transport have been suspended; people are stranded in some areas; employment, food and basic needs are affected; and medical facilities are over-burdened. Around 180 countries in the world are facing the trauma of this pandemic disease in one way or other and are taking efforts to stop the spread of this virus. To combat the deadly virus though many countries are virtually under a lockdown, COVID 19 is spreading as an un-assailable virus. In the initial stages of its reporting from China, there is an allegation that the outbreak of this virus is a by-product of Chinese bio-warfare mission. On 17^th March 2020, a class action complaint was filed before the District Court for the Northern District of Texas claiming an award of 20 trillion U.S. Dollars and such other relief the Court may deem just and proper in relation to COVID 19 outbreak. This paper attempts to elaborate the points of discussion in this suit in the light of existing principles of international law.

COVID -19: Basic Information

The family of Coronaviruses generally causes diseases to animals. The symptoms of the virus attack are similar to the symptoms of cold and flu. Though all these viruses are generally not harmful, two of them are very severe in nature and have caused death of thousands of people. They are Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). Both these diseases have caused death of more than 15000 people. The newly evolved virus Covid 19 poses a threat to children, elders and persons with low immunity. The fast rate of spread of this virus coupled with notable absence of medicines to prevent this virus and its effects on respiratory system further complicates the issue. As a result the world is witnessing death of thousands of people every day and still newer cases are emerging The exact origin of COVID 19 is still unknown, but it is presumed that the wet market of Wuhan, where live and dead animals and birds are being sold are the source of its origin.

The Case

The case is a class action complaint filed by Buzz Photo, Freedom Watch, Inc., Larry Klayman as the lead plaintiffs along with the members of the class and subclasses and all persons and entities affected by Covid 19. The defendants are the People's Republic of China; The People's Liberation Army (The official military of China); The Wuhan Institute of Virology (Agency of the Government of China) and; Shi Zhengli, Director of the Wuhan Institute of Virology. The plaintiffs' claim an amount of 20 trillion U.S. Dollars and such other relief for the damages caused due to creation and release, accidental or otherwise, of a variation of coronavirus known as COVID-19 by the People's Republic of China and its agencies and officials as a biological weapon in violation of China's obligations under international treaties. According to the claimants, the defendants recklessly or otherwise allowed the release of this virus from the Wuhan Institute of Virology into the city of Wuhan, and failed to prevent the Institute's personnel from becoming infected with the bioweapon and carrying it into the surrounding community and further proliferation into the United States. This complaint raises many national and international legal concerns.

Class Action Complaint and Capacity of Parties

The capacity of the Plaintiffs to file this case is one of the preliminary issue. The complaint is filed by two artificial persons and one natural person representing similarly situated many persons. These types of complaints in US are termed as class action complaints. In US, the judicial system is composed of both Federal Courts and State Courts. The hierarchy of Federal Courts starts from District Courts, which are the trial courts; then the Courts of Appeals, the intermediate appellate courts and US Supreme Court, which is the highest apex court in the country. The hierarchy of State Courts are not uniform throughout the States of US but generally most of them follows federal pattern.

The class action complaints can be generally filed in a State Courts, however, if there is a federal component it can be litigated before a federal court. The jurisdiction of Federal Courts in respect of Class Action Complaints are dealt under the provisions of the U.S. Class Action Fairness Act, 2005. This Act allows federal courts to exercise jurisdiction over class action complaints if, it has necessary diversity jurisdiction. This diversity jurisdiction allows US federal courts to hear civil cases when the parties belongs to different nationality and the claim amount is more than $75,000. In the present class action complaint, there is an involvement of individuals having different nationality and the claim amount is above $75,000, hence the District Court being the trial court of Federal system is empowered to hear the matter.

On the basis of rules established in 18 U.S.C. § 2334(a) and 28 U.S.C. §§ 1391(b) and 1391(d), a class action complaint can be filed only in a judicial district where any of the plaintiff or defendants resides or having business or a substantial part of the events or omissions giving rise to the claim occurred. Since the lead plaintiff Buzz Photos is a resident of Texas, the selection of Texas District court for filing this class action complaint is valid.

As per Rule 23 of Federal Rules of Civil Procedure, 'if one or more members of a class may sue or be sued as representative parties on behalf of all members, if the class is so numerous that joinder of all members is impracticable and there are questions of law or fact common to the class'. Since there are large number of COVID 19 affected persons and it is impracticable to join all of them as parties, any of the affected party can file a class action complaint. Therefore, the plaintiffs in this case have the required competency to file the present class action complaint.

Sovereign Immunity and Justice against Sponsors of Terrorism Act, 2016

The concept of sovereign immunity is a fundamental principle under customary international law. As per this principle, countries and their officials cannot be sued in the courts of another country for any act even if it causes damages to nationals of that country. However, Justice against Sponsors of Terrorism Act, 2016 (JASTA), in US provides an exception to this general rule of international law. As per the provisions of JASTA, a suit can be filed in US Court for tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occur, if it causes physical injury to a person or property or death inside the United States. Therefore, filing the present Class Action Complaint in Texas District Court is in accordance with the national laws of United States.

However, a pertinent question which arises here is that whether US can violate an international law principle i.e. principle of sovereign immunity, on the basis of their municipal law? The enactment of JASTA may be well justified on the basis of competency of US to enact such a law in their territory, though it is against a well-established fundamental international law principle. This is because with respect to customary international law, US follows Monism theory of incorporation and hence, they are part of US law of the land. Therefore, US legislatures can validly amend or modify the operation of such customary international law principles in their jurisdiction.

The authority or competency of a legislature to enact a law cannot be a justification under international law for the violation of its core principles. The dictum in Alabama claims (US v. UK, 1872) case establishes the principle that, 'municipal rule or law cannot be relied as a justification for violation of international law'. Moreover, Article 27 of the Vienna Convention on the Law of Treaties, 1969 states that, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. So the essence of these rules under international law confirms that, one Country cannot violate an international law principle by citing its own national laws. Further it is to be noted that, sovereign immunity is a part of jus cogens norm of international law. Jus cogens are those peremptory norms or principles accepted as fundamental by every nations and any violation of such principles cannot be permitted. Hence, being a jus cogens principle, violation of sovereign immunity is not permitted in tortious cases (though there are exceptions in cases of terrorism). Therefore filing of this class action complaint in Texas District Court, being a municipal court against a foreign nation is not justifiable under international law.

Recognition and Enforcement of US Judgments in China

Another pertinent concern is about the enforcement of judgments against China and other respondents. It is to be noted that, since the case is at a municipal court, recourse to general international law principles are not applicable. There is no valid bilateral treaty existing between US and China for the recognition and enforcement of such judgments. Moreover China is not a party to any of the international treaties dealing with recognition of foreign judgments in civil matters such as Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971 and the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, 2019 (not yet came into force). Therefore, China does not owe any international law obligation to give effect to or honour the judgment of a foreign court.

The municipal law of China in this regard is Article 282 of the PRC Civil Procedure Law. It says that, a foreign judgment can be recognised in China subject to the conditions among several things, 'it does not violate any basic principles of Chinese law, national sovereignty, security, or social public interest'. It is to be noted that filing a case in the municipal courts of another country is an aberration to the national sovereignty of China and hence China can legally discard the judgments of such municipal courts.

The Liability

The question of appropriateness of forum and related matters are once settled, then the merits of the present class action complaint arises. Though the plaintiffs have raised several issues, it can be merged into one central question, i.e. to what extent China is liable for the outbreak of COVID 19 under international law. This question has a two pronged answer based on two scenarios:

Scenario I: The COVID 19 is a part of Bio-warfare mission.

At international level, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 1972 and Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 1925 are the specific framework to deal with biological weapons. Also, the use of biological weapons during armed conflicts are dealt under international humanitarian laws as well as the Statute of International Criminal Court. The 1925 Protocol specifically prohibits the use of biological weapons and the 1972 Convention specifically prohibits, 'in any circumstance to develop, produce, stockpile or otherwise acquire or retain: Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes'. Thus any country who is a party to this Convention and Protocol is bound to restrain itself from creating a biological weapon. China is a party to both these international instruments.

The allegation here is that, the outbreak of COVID 19 is a part of China's bio-warfare. If it is established with cogent evidence that, the COVID 19 is a creation of China as a part of their Bio-warfare mission, then it would amount to violation of their obligations under Article 1 of the 1972 Convention. Even if it argued that it escaped accidently or through negligence from their lab, the creation of such a biological weapon itself is a violation of international law. It is to be noted here that the consequences of such a violation of the provisions of 1972 Convention is nowhere explained. But when there is an allegation, then as per Article 6 of the Convention, the matter should be placed before UN Security Council. The Security Council undertakes necessary investigation and provides orders accordingly. Thus for violation of provisions of 1972 Convention, no one can claim damages against a country as per its provisions. As per this law, in the present Class Action Complaint, District Court of Texas is not a competent body to determine the liability for violation of 1972 Convention.

Scenario II: The COVID 19 is not a part of Bio-warfare mission.

The situation here is that a virus which has allegedly escaped accidently or otherwise from a virology lab and has caused death of several thousands of people and creating problems worldwide. The question which arises here is whether the country of origin of such a virus has any responsibility towards the world. If it is established that, the virus has escaped from the lab, the Country will be responsible for all the loss caused by such virus to other countries under international law. This is through the application of the well-established maxim sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another). This maxim states that, one State's sovereign right to use its territory is circumscribed by an obligation not to cause injury to, or within, another State's territory^[1].

State responsibility for violation of international law, though is a matter of concern in this century, there is an absence of binding treaty in international law in this regard. Though one may find Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by International Law Commission in 2001 as a framework for dealing with issues of state responsibility, they are still a draft and having no legal force. The principle of sic utere tuo ut alienum non laedas is a well-accepted principle in modern international law also. The most often cited cases in this regard are the Trail Smelter Arbitration case^[2] and the Corfu Channel case^[3]. However, this principle can be made applicable only if it is proved that, COVID 19 is accidently or otherwise escaped from the lab of China.

So also the country can be held responsible under the law of torts by applying strict liability principle. The strict liability principle imposes liability to a state for causing injury and damage to another states even when there is no fault or negligence on the part of such state. This principle is incorporated under international treaties specifically with respect to international environmental law, outer space law, nuclear liability etc. The same principle can also be made applicable here, if it is established that, the source of this virus is the virology lab of China. In both cases i.e. for liability under the principles of sic utere tuo ut alienum non laedas and strict liability, the injured can claim damages from the defendants. It is pertinent to note that these principles are applicable primarily if the virus has escaped from the virology lab of the country. However, if the source of such virus is unknown, there is no question of liability for the outbreak of such a virus and the country may be able to claim the defence of Act of God or Vis Major.

Another interesting aspect in this regard is, that though by applying the above said principles, China can be held responsible for the outbreak, a pertinent question which arises here is how it escaped from the territory of China. In most of the countries, the virus went with their own nationals who returned from China after the outbreak of this virus and in some countries it went with tourists. In such cases, the escape can be attributed to a third person. In strict sense for the application of above said principles, there is a need for escape of virus due to the act of China. Otherwise, it will enable the country to take a defence to escape from the liability, i.e. intervention of third party or Novus actus interveniens.

An Epilogue

The issue of COVID 19 and the resulting disputes regarding state liability currently re-emphasize the need for an appropriate binding legal framework under international law for fixing state responsibility in cases of an act or accident which causes injury or damage to another country. At present there are no evidences against China or its officials about wrongful acts in relating to the outbreak of COVID 19. In the absence of such evidences any discussion about the liability of China is legally difficult. However, if it is proved that the COVID 19 virus is a result of biological warfare, then it raises serious ethical, moral and legal issues. It highlights the need for serious introspection by the world community about what we want to do to planet Earth and life on Earth.

Today it was a virus, tomorrow it may be another virus or bacteria, and still further it may be a chemical or nuclear or radioactive substance. Hence, it is high time the world community re-looks at the mass manufacture and stock-piling of weapons and chemicals of various kinds. We need to answer the most simple and most important question, 'Do we need weapons to destroy the Earth and life; or do we need the Countries to do research for protecting lives, saving lives and improving lives'. Further, this type of a discussion is also necessary to emphasize the need for developing an international health law focussing on research and development of medicines and health-care facilities; steps for identification, prevention and spread of diseases; cooperation and responsibilities of states; as well as liability clauses in case of negligence or wilful spreading of viruses etc. which causes injuries or damages