By Jiang He
On April 21, Republican-controlled Missouri became the first US state to file a lawsuit against China for “spreading the novel coronavirus” across the world. Missouri Attorney General Eric Schmitt laid the entire blame for the coronavirus pandemic and deaths and economic losses in Missouri on China, demanding compensation for them. On May 12, the US state of Mississippi filed a similar lawsuit.
In international law, all sovereign states, including China, are entitled to sovereign immunity. But US Senator Marsha Blackburn and Congressman Lance Gooden have put forward a bill in the US Congress to amend the Foreign Sovereign Immunities Act to exempt a foreign state that uses a biological weapon from the jurisdictional immunity clause. The bill, “Stop China-Originated Viral Infectious Diseases Act of 2020”, is directed against China.
The two cases and the two US lawmakers’ attempt to change the US law have raised a jurisdictional issue related to sovereign immunity, pursuant to which China, as a sovereign state, cannot be sued in the US. They are the result of the US policy of “judicialization” of power politics, whose legality can be challenged based on the legal entity’s active or passive jurisdiction both in national and international law.
As a universally accepted principle, sovereign immunity is based on par in parem non habet imperium, Latin for “equals have no sovereignty over each other”, which according to ancient Roman law means no jurisdiction between equals and according to modern international law, no jurisdiction between sovereign states. Established by the general practice and opinio juris (an opinion in law) of the international community, the principle has been codified as a written norm in treaties, which the US states, by suing China in domestic courts, have flagrantly violated.
Due to Article 38 of China’s Infectious Diseases Prevention Law, the Chinese government exercised public authority to tackle the coronavirus epidemic, rather than carrying out any commercial activity as claimed by 28 USC§1605(a)(2). The US law is inapplicable in such a case. Besides, under US law, domestic courts can stretch their jurisdiction to such cases only if both the tort and the damage have occurred in the US. But according to the lawsuits, the so-called tort happened in China, which makes the exception of 28 USC§1605 (a)(5) inapplicable.
Also, the scientific community has not traced the origin of the novel coronavirus. And China has taken stringent measures to prevent and control the outbreak, not concealed any facts related to it, and there is no legal causal relationship between China’s epidemic prevention work and the US’ losses. Therefore, even if the US modifies the existing law, it cannot hold China accountable for anything.
The jurisdiction of the US domestic courts can also be questioned in the light of modern constitutional rationale and subjectivity of natural law of justice. The typology of major legal systems of human society is defined by their natural subjectivity, and reflected in the nature of their national laws and international law－with the European Union’s laws being sui generis (only one of its kind).
Internally, natural persons or citizens in a modern democracy are equal in the eyes of domestic law. Consequently, the procedural rights or the judicial powers of the subjects are legalized synchronically by a constitution or diachronically by the natural rights of a natural person.
So the right to sue or the power to administer justice to any subject in another jurisdiction runs counter to the rule of national law. The primary subject of international law is the nation-state instead of a natural person. The principle of sovereign equality of state sovereignty is the pillar of international law, according to which nation-states are independent and equal. And the principle of sovereign immunity is recognized and accepted by the international community as a legally binding norm.
Within the country, the US is free to enact a law and use it to file a case against anybody, but externally, it would be violating international law by filing a lawsuit against another state. As such, owing to their lack of legality in law and legitimacy in jurisprudence, the US lawsuits against China are nothing but a farce.
International law and international relations are closely interconnected. So the US’ exceptionalism and “sacred mission”, aimed at legalizing its power politics in the international community, are a violation of both international law and international relations.
The US lawsuits expose the US’ use of power politics and judicial hegemony. Although the US will not succeed in its evil designs, its attempts to stigmatize China and tarnish China’s image reveals its true colors. The lawsuits are also an attempt to divert American public attention from the US administration’s failure to control the COVID-19 pandemic in the country and, instead, blame China for the health crisis.
Yet the US can highlight the “facts” related to the lawsuits through its global hegemonic discourse because it controls the only primary root server of the global network. US-based Internet Corporation for Assigned Names and Numbers enjoys the lion’s share of soft power in the virtual world.
First, the US move will weaken the effectiveness of international law, and undermine the world order, which could lead to regression of the international community to the “state of nature”.
Second, the world and humankind as a whole are facing a grave health crisis and fighting against the pandemic, which calls for international cooperation. But instead of cooperating with the rest of the world in the global fight against the pandemic, the US is more interested in triggering confrontation with China to fulfill its hegemonic goals.
And third, the US’ move will sow discord between China and other states in the anti-epidemic fight, and create obstacles for China to help build a community with a shared future for mankind and promote the Belt and Road Initiative.
But instead of preventing China from fulfilling its responsibility as a major country, the US will end up shooting itself in the foot.
*The author is a professor of Law School, Zhongnan University of Economics and Law.