China Daily (Hong Kong)

US lawsuits against China nothing but a farce

- Parem non habet imperium, par in opinio juris sui generis The author is a professor of Law School, Zhongnan University of Economics and Law. The views don’t necessaril­y reflect those of China Daily.

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

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 (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 (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.

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