How China can be held legally accountable for coronavirus pandemic

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A cover-up and clampdown by the Chinese government in the early weeks of the coronavirus's emergence is raising questions over whether the communist superpower can be held legally accountable.

"Generally countries like China have sovereign immunity and governments cannot be brought to regular courts or held liable regardless of their conduct," Nitsana Darshan-Leitner, an Israel-based attorney who has long specialized in suing terrorist regimes and state sponsors who orchestrate human rights abuses on behalf of victims, told Fox News.

"However, an argument could be made that just like support for terrorism, which is legally actionable, a government that engages in such reckless disregard and negligence and covers up an epidemic which has the potential to spread worldwide could be held legally liable ," Darshan-Leitner said. "Cover-ups and deliberate acts to conceal a deadly medical crisis are not [among] the protected acts of a sovereign state or of responsible leaders."

According to Darshan-Leitner, if a private party like a hospital or health care worker of a chemical company had learned of a dangerous and highly contagious disease and then deliberately covered its existence up and concealed it from the public they would clearly face criminal and civil liability.

"Why should a local or national government be any different? Clearly, China signed treaties and had a duty under international law to report the virus and not cover it up," she continued. "China is not to blame for creating the virus but for not sounding the international alarm and trying to conceal it from the world."

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The lawsuits are already starting.

On Thursday, Florida's The Berman Law Group filed a class-action lawsuit against the People's Republic of China (PRC), alleging that the government's failure to report the disease and subsequently move to quickly contain it created a "giant Petri dish."

"The PRC and the other defendants knew that COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up for their own economic self-interest," the complaint states. "The defendants' conduct has caused and will continue to cause personal injuries and deaths, as well as other damages."

In this Feb 3, 2020, photo released by Beijing Thanksgiving Public Welfare Foundation, Dr. Li Wenliang is seen at The Central Hospital of Wuhan in Wuhan in central China's Hubei province. China has taken the highly unusual move of exonerating the doctor who was reprimanded for warning about the coronavirus outbreak and later died of the disease. An official media report said police in Wuhan had revoked its admonishment of Dr. Li that had included a threat of arrest and issued a “solemn apology" to his family. (Beijing Thanksgiving Public Welfare Foundation via AP)

A study released this month by the U.K.'s University of South Hampton indicated that if Chinese authorities had acted three weeks earlier than they did, the geographic proliferation of the pathogen would have been significantly smaller, and the number of cases would be reduced by 95 percent.

According to a timeline compiled this week by Axios, it was Dec. 10 that the country's first known patient started contending with strange symptoms.

Six days later, health officials in Wuhan made a connection between the unique condition – resistant to common flu medications – and a wildlife market in the city. On Dec. 27, authorities were told about the new virus, and three days later, two doctors in Wuhan were reprimanded by the Communist Party for spreading information about the SARS-like contagion in a WeChat group..

Later, an announcement was made that authorities had seen "no clear evidence of human-to-human transmission of the novel coronavirus," which was repeated by the World Health Organization (WHO), even as cases outside China's border slowly started being identified.

The following day, the first known U.S. case from Wuhan arrived.

On Jan. 18, a massive Lunar New Year banquet was permitted to take place in Wuhan, in which tens of thousands of people gathered and potentially spread the virus exponentially. And as the disease spiraled beyond control over the ensuing days, the city – and three others – were put on lockdown, even as other regions continued to celebrate the New Year in large groups over the proceeding few days.

However, a slew of other voices have said that reports were made about the novel virus several weeks before that, but effectively silenced. The Sunday Times of London also reported that several genomics companies tested samples from ill patients in Wuhan late last year, and alerted the Chinese government to their findings on Jan. 3, only to be given gag orders.

In this photo released by China's Xinhua News Agency, Chinese President Xi Jinping talks by video with patients and medical workers at the Huoshenshan Hospital in Wuhan in central China's Hubei Province earlier this month. China said Thursday that no new coronavirus cases were reported in Wuhan, the epicenter of the pandemic. (Xie Huanchi/Xinhua via AP)

Some reports have also underscored that the government was aware of the virus as early as November. According to the South China Morning Post, the first case was recorded on November 17 in Hubei province, with five new cases reported on average per day in the weeks thereafter.

Juliya Arbisman, an international disputes expert and partner at the New York-based Diamond McCarthy law firm, indicated that there are broad possibilities under international law, especially trade law, for State-to-State and individual investor claims against countries.

"These might boil down to the ability of preexisting legal mechanisms to deal with these sorts of modern questions," she said. "There is also a pretty clear case for countries insisting on China to honor its obligations under CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) to stop people from trading in and eating endangered species, which is likely how Covid-19 infected humans in the first place."

It is believed coronavirus was born out of a seafood wholesale market in the eastern Chinese city of Wuhan, whereby poorly regulated, live-animal markets mixed in with illicit wildlife trade, creating the environment for viruses to morph from animal hosts into the human populous.

U.S. National Security advisor Robert O'Brien, referring to the doctors who were censored, has claimed that the Beijing concealment in the early phase "cost the world community two months" and aggravated the international fallout. Moreover, the leading Republican on the House Foreign Affairs Committee, Rep. Michael McCaul, has termed it "one of the worst cover-ups in human history."

"The International Health Regulations (IHR) are rules that should prevent domestic public health emergencies from becoming international problems. This global health law requires member states to notify the WHO of events that may constitute 'a public health emergency of international concern,'" concurred Ivana Stradner, international law and national security expert at the American Enterprise Institute (AEI). "China's delay in reporting the outbreak violated international law."

From her lens, states can sue China before international tribunals for violating its obligation to report the coronavirus outbreak under the IHR.

"Chinese behavior is a threat to global security and constitutes a violation of Chapter VII of the UN Charter, which authorizes the U.N. Security Council to take action to 'maintain or restore international peace and security,'" Stradner continued. "States, and the U.S. in particular, can react to the coronavirus outbreak by invoking the principle of self-defense."

In this March 17, 2020 photo released by China's Xinhua News Agency, medical workers use a bronchoscope to treat a coronavirus patient at the Huoshenshan field hospital in Wuhan in central China's Hubei Province. Last month, Wuhan was overwhelmed with thousands of new cases of coronavirus each day.  (Xinhua via AP)

And David Matas, a Canada-based international human rights, refugee and immigration lawyer who was appointed as a member of the Canadian delegation to the United Nations Conference on the Establishment of an International Criminal Court, emphasized that China, as a State Party, is additionally subject to the Biological Weapons Convention.

"The Convention states in Article I that each state party to this Convention undertakes never in any circumstances to 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," he said. "In my view, non-reporting is a form of retention in violation of the Convention. The United States is also a state party to the treaty. If the U.S. found China acted in breach of its obligations deriving from the provisions of the Convention by its delay in reporting the coronavirus, the U.S. could lodge a complaint with the Security Council."

Chinese leaders have embarked on a fervent campaign to place blame elsewhere – even going so far as to insinuate the virus was brought to Wuhan by the U.S. military.

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Requests by the United States and other global bodies to investigate the origins of the deadly outbreak in China have thus far been dismissed by Beijing, who have staunchly denied any wrongdoing or mishandling of the outbreak.

Darshan-Leitner further stressed that in her view, it is "a massive breach of duty and customary international law," and that a case could potentially be made in the International Court of Justice (ICJ) if it is proven that a cover-up was perpetuated by high-level individuals.

"The ICJ was created as a forum for countries which believe they have been grievously injured and have causes of action against other states to be able to seek redress. This would be a classic case of the reckless actions of one government impacting and severely harming nations around the world," she explained. "The problem is China would have to agree to have the case heard by the ICJ, and with so much loss of life, so many trillions of dollars in damage and the global economic destruction the coronavirus caused Beijing would never agree to have a case heard there."

Chinese paramilitary wearing masks march by during their duty in an embassy district in Beijing on Monday, March 16, 2020. With more imported cases of the new coronavirus, starting Monday, travelers arriving in Beijing from overseas will be quarantined for 14 days in designated facilities at their own expense. For most people, the new coronavirus causes only mild or moderate symptoms. For some it can cause more severe illness. (AP Photo/Ng Han Guan)

Titus Nichols, a federal attorney, and professor at the University of Georgia School of Law, contended that, under international custom, foreign governments are immune to lawsuits from citizens. However, individual families could potentially bring a lawsuit against the Chinese government under the Foreign Sovereign Immunities Act of 1976 (FSIA).

"The act is the primary means for bringing a lawsuit against a foreign sovereign or its agencies and instrumentalities," he said.

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But even if families were successful, and financial compensation was ordered, claiming the money from China would be a steep challenge.

"Suing a government for mishandling something like the coronavirus is not likely to be a winning lawsuit in just about any country in the world," surmised Dan Harris, the founder of the international law firm, Harris Bricken, affirming that payment collections regardless would be tough. "The Chinese government does not have much in the way of assets outside China and courts there are not going to let you pursue China government assets in China. Chinese state-owned companies have assets outside China, but most countries count that differently."

Moreover, the issue of who and who isn't at fault for the exacerbation of the coronavirus is still up for debate.

"There is evidence that China took steps to prevent knowledge about the virus from being shared," Nichols added. "However, China cannot be held accountable for the actions of Americans who refuse to take heed of the government and continue to spread the virus."