OPINION: $20 Trillion Lawsuit Against China Lacks Jurisdiction And Merits
On merits, it merely relies on some press reports and weblinks and there is no credible evidence attached with lawsuit to prove about the COVID-19 being a biological weapon much less the involvement of the Chinese authorities.
By Hemant Batra, Executive Editor, Public Policy – South East Asia
An American citizen and lawyer Larry Klayman and two of his associate entities, namely Freedom Watch, Inc. a non-profit corporation and Buzz Photos, an events management US company, which has been forced by the COVID-19 epidemic to lay off employees have filed a class-action suit in the United States of America against the People’s Republic of China (PRC) including its Government, its official military – the Peoples Liberation Army, its Major General Chen Wei, the Wuhan Institute of Virology and its Director. They all are impleaded jointly and severally as joint tortfeasors.
The lawsuit alleges that the Defendants released the COVID-19 virus from an illegal bioweapons’ facility in Wuhan, China. The lawsuit, filed in a District Court of Texas, USA, claims punitive damages in excess of 20 Trillion US Dollars on account of these Chinese Defendants having aided, conspired and abetted the risk of death, serious bodily injuries to the United States’ Citizens, having provided material support to the terrorists and having been negligent, causing wrongful death, assault and battery.
The lawsuit further alleges that all these acts and omissions on the part of the Chinese Defendants have caused the severe economic crisis in the United States.
Now, the suit has been preferred on the basis of two sets of Laws – National and International laws. Under domestic law, principally it invokes `The Justice Against Sponsors of Terrorism Act (“JASTA”) and The JASTA being an exception to the Foreign Sovereign Immunities Act. Whereas under the international laws, it invokes two treaties – first being “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction” (“Biological Weapons Convention”) as acceded to and ratified by China in 1984.
As a member of the treaty, China has legally agreed under international law that the manufacture, stockpiling, or deployment of biological weapons are outlawed and illegal; second, is the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare,” signed at Geneva in 1925 (“Geneva Weapons Convention”) of which China is a member.
The allegations on facts being that China and its agencies are responsible for the creation and release, whether accidental or otherwise, of the COVID-19 virus.
It is alleged that this is a biological weapon, which has been released, recklessly or otherwise, in violation of China’s obligations under international treaties, from the Institute of Virology into the city of Wuhan. Asserting that “biological weapons have been outlawed since at least 1925”, damages have been sought from China for allegedly releasing COVID-19. Major General Chen Wei of China’s PLA, at the PLA’s Academy of Military Medical Sciences, is the Chinese military’s top epidemiologist and virologist, who is not only leading China’s responses to the COVID-19 epidemic but also led the creation of the COVID-19 coronavirus as a bioweapon for China’s military.
The lawsuit claims that COVID-19 was designed by China to be a very “effective” and catastrophic biological warfare weapon to kill mass populations.
My prima facie legal opinion is that the lawsuit is not only devoid of merits but also lacks jurisdiction.
On merits, it merely relies on some press reports and weblinks and there is no credible evidence attached to the lawsuit to prove about the COVID-19 being a biological weapon much less the involvement of the Chinese authorities. The claim doesn’t have any substantive evidence.
Also read: Does Coronavirus outbreak qualify as a Force Majeure event?
The levels of severe and grave allegations against a prominent nation but do not enclose any significant documentary evidence.
How and why the lawsuit lacks jurisdiction is that Article VI of the Biological Weapons Convention which is basically the successor of the Geneva Protocol of 1925 categorically bars the jurisdiction of national domestic courts. It provides that any State Party to this Convention which finds that any other State Party is acting in breach of obligations under the Convention may lodge a complaint with the Security Council of the United Nations along with all possible evidence confirming its validity and seeking investigation thereof.
So private parties have no role except approaching their own respective Governments to take further action. Private parties cannot assume the role of the member States as is amply clear from the premise of the international laws in this regard and even generally.
Hence, this class action through a lawsuit in the United States is absolutely ineligible to be entertained. Whether COVID-19 is a biological weapon or not, it is not a matter of domestic adjudication but at the most independent international investigation by the UN Security Council, that too, if the Peoples Republic of Chinese so cooperates. If this suit is entertained, it will set a bad precedent as the private citizenry of countries will start suing the governments of other nations irresponsibly and rashly.
Thank you. (The views expressed in the article are that of the author.)
Hemant Batra is an Advocate & Counsel in the Supreme Court of India & Delhi High Court; He is the Chairman, South Asia Committee, Indian National Bar Association; Vice President, SAARCLAW (a regional apex body of SAARC); Chairman, Jury Panel, ACES Awards; and Tutor, Indian School of Public Policy.
