Contributors from J-K Gadzama LLP:,
Geraldine Mbah, Junior Partner,
mbah@j-kgadzamallp.com, Musa
Jerry, Associate,
musa.jkgadzamallp.com, Ignatius
Ozoilo, Visiting Associate,
ozoilo.jkgadzamallp@gmail.com
Recently, three cases were filed against China as a result of
the COVID-19 outbreak. The cases are seeking billions of US dollars
as reparation against China for the outbreak of COVID-19. Of the
three cases filed, only one was instituted on grounds of negligence
or recklessness in the management and containment of the COVID-19
by the Chinese government. The other cases were filed by different
plaintiffs on different grounds of terrorism, crime against
humanity & genocide and the spread of bioweapon. The cases are all
predicated on the idea that China is responsible for the cause and
global spread of coronavirus and therefore must be held liable for
the human and material losses suffered by many people around the
world.
While the propriety of the contemplated actions is not in doubt,
the consternation within the international legal circle is
obviously about the complexity of issues associated with
extraterritorial litigation of such high magnitude – not list – the
legal determination under which the plaintiffs would hope to
succeed and how they are going to scale the thick walls of conflict
of laws principles.
Coronavirus disease (COVID-19) has in no doubt stunned the
world. Its effect has virtually brought the world as we know it to
its knees under a lockdown or highly restrictive movement of
persons. The World Health Organization (WHO) has since labelled the
COVID-19 a world-wide pandemic, a description only ascribed to the
world’s worst health emergencies.
So far, more than 2 million people across the continents of the
world have been confirmed to be infected with the virus, with this
number on the increase by each day. An estimate of about 200, 000
persons have been confirmed to have died from the virus with the
figure increasing daily and over 400, 000 persons have also been
confirmed to have recovered from the virus, the figure likewise
increasing daily.
The havoc caused by this pandemic is colossal. World economic,
social, religious, sports and entertainment industries are all at a
standstill. More than one-quarter of the world’s 7.8 billion people
are now largely confined to their homes, as governments step up
curbs on movement and social contact in a bid to contain the virus.
In many parts of the world, borders are closed, airports, hotels
and businesses shut, and school cancelled. These unprecedented
measures are tearing at the social fabric of some societies and
disrupting many economies, resulting in mass job losses and raising
the spectre of widespread hunger.
The legal actions being instituted aims to capture the essence
of shared humanity, which underlines class action litigation – the
idea that the loss of one is the loss of all. Argument about legal
liability will not only raise factual and evidential questions but
most critically questions about legal principles relevant to the
unique circumstances of COVID-19 in terms that will give rise to
responsibility and possibly restitution.
Of the three causes of action in view, negligence would seem to
be most contentious. The lawsuit filed in Florida last month which
seeks to make the Chinese government pay for what they’ve done in
its handling of the novel COVID-19 outbreak, saying the country
acted “negligently in their handling of the COVID-19 outbreak.” The
suit filed by a personal injury law firm based in Boca Raton is
bringing the suit against China and various Chinese government
agencies on behalf of “individuals and business owners in the
United States and State of Florida, for damages suffered as a
result of the COVID-19 pandemic.”
The suit claims China “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 in their economic
self-interest.” The lawsuit does not name a specific dollar amount
being sought from China, asking for “compensatory and other damages
to Plaintiffs and the Class Members, for their economic and
non-economic damages … to the full extent permitted by the law.”
According to Alters, the Chief Strategist of the Firm, “We want the
court to make them pay for what they have done, they have unleashed
… a massive pandemic on the world. It appears they knew about it
long before they gave information about it to the rest of the
world. We want our courts to say, ‘China, you are going to be held
accountable here in our courts because you have harmed hundreds of
millions of Americans.”
By going down this route, the plaintiffs (claimants) are
suggesting that China should have exercised reasonable care in
their actions in relations to COVID-19 by taking account of the
potential harm that they might foreseeably cause to other people
and property up and down the world. For them to succeed, they must
establish that China not only owes them a duty of care but also
that the country is in breach of that duty and the human and
material loses the plaintiffs (claimants) suffered are a direct
consequence of the breach of that duty. In other words, for there
to be any realistic prospect of succeeding with their claim, they
must prove the elements of duty, breach cause and harm. From what
is known already it is possible to prove harm – that many lives
have been lost and there were obviously huge economic loses. It is
without question that those loses (human and material) were the
direct effect of coronavirus. However, the battleground really is
regarding the issue of duty and breach of duty.
While it is a lot easier to pursue this cause under common law
and statutory instruments of domestic jurisdictions, the effort to
achieve that extraterritorially will prove to be daunting.
Certainly, the concept of liability is much more developed in
domestic law and its introduction to international law cannot
ignore the experience gained in this area in domestic law. The need
to develop liability regimes in an international context has been
recognized and has found expression mainly in instruments concluded
at treaty level between Nations or a cluster of Nations under
different regional or business relationships. A good reference is
the Principle 22 of the Declaration of the United Nations
Conference on the Environment (Stockholm Declaration) 1972, a
common conviction was expressed that: States shall co-operate to
develop further the international law regarding liability and
compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction
or control of such States to areas beyond their
jurisdiction. There is also Principle 13 of the Rio
Declaration on Environment and Development, which addresses the
national and international contexts by broadly proclaiming: ‘States
shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage. States
shall also cooperate in an expeditious and more determined manner
to develop further international law regarding liability and
compensation for adverse effects of environmental damage caused by
activities within their jurisdiction or control to areas beyond
their jurisdiction.’
In effect, liability for any transboundary harm caused by a
nation under international law has for now only gained strength
through instruments and treaties. The regime is yet to flourish as
recognized customary international law. What this means is
that, if the People’s Republic of China is to be liable for any
form of negligence in the management of the COVID-19 outbreak which
has resulted to the loss of lives and businesses in other nations,
there has to be an instrument existing that establishes China’s
liability where it fails to deal properly and reasonably with an
infectious disease and that failures or negligence leads to
transboundary injury. It does not appear that such an instrument
exists now. So, even if investigations were to reveal that the
Chinese government was negligent in the manner it handled the
containment of the COVID-19 virus through its policies, such that
it resulted to the current global escalation, the likelihood of
person(s) affected to maintain an action and secure judgment
against China for damages based on negligence is slim, if not
completely non-existent.
Where, however, the grounds of such an action were to be centred
on matters covered by existing treaties or instruments, the action
will have its day in court and be heard on its merit, even though
the likelihood of success will also depend on the establishment of
required facts to satisfy the standard of proof required under such
a treaty or instrument. The territorial jurisdiction of such
matters and the mode of enforcement of the judgment obtained will
depend largely on the provisions of treaty or instrument being
enforced.
Assessing the chances of this suit, which is based on the United
States of America’s Class Action Fairness Act of 2005 (CAFA)
reveals that its success is rather difficult considering the
provisions of the United States’ Foreign Sovereign Immunities Act
(FSIA) which prevents Americans from suing other countries except
under specific circumstances. The plaintiffs claim they fit under
the exceptions for commercial activity and “personal injury or
death” that stems from “the tortious act or omission of that
foreign state or of any official or employee of that foreign state
while acting within the scope of his office or employment. A
Professor of Law at Yale Law, however, disagrees that the suit
falls within the exceptions claimed by the plaintiffs. The progress
of this suit will depend largely on the Florida Southern Districts’
Court interpretation of the exceptions claimed by the plaintiffs.
It is noteworthy to state that, it remains to be seen if the
People’s Republic of China will subject herself to seemingly the
domestic laws of the United States for actions claimed to have
taken place in China.
Beyond the FSIA difficulties, another likely weakness in the
case is the fact that it treats the idea that COVID-19 potentially
came from a lab – which has been debunked – as a legitimate
“alternative theory.” This could potentially undermine the majority
of its case, which pushes the widely understood story that the
virus was transmitted from an animal to a human at a wild animal
market in the city of Wuhan before China responded to the health
threat with obfuscation and censorship.
Generally, actions against Nations on civil liabilities are
brought before the International Court of Justice (ICJ) and should
be brought by another Nation, multilateral organizations or
individuals, where the liability incurred bothers on the protection
of human rights only. Some instrument or treaty sometimes provide
for dispute resolution mechanism that can be explored by aggrieved
Contracting States or their citizens. In such a case, it is
expected that all such avenues of dispute resolution should be
exhausted before recourse is made to the ICJ.
The second and third suit are all filed by American Lawyer Larry
Klayman and his advocacy group. One of it – a $20 trillion lawsuit
has been filed against Chinese authorities in the US by Klayman,
his advocacy group Freedom Watch along with Texas company Buzz
Photos before a Texas District Court in Texas, USA. The lawsuit is
against the Chinese government, Chinese army, the Wuhan Institute
of Virology, Director of Wuhan Institute of Virology Shi Zhengli
and Chinese army’s Major General Chen Wei. The plaintiffs have
sought $20 trillion, which is a bigger amount than China’s GDP,
claiming COVID-19 is the result of a biological weapon prepared by
the Chinese authorities in violation of her treaty obligations
under the “Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction and Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of Warfare.
The third is a complaint made before the International Criminal
Court (the ICC). Klayman and his advocacy group have equally
submitted a complaint before the ICC on the same facts as the civil
suit alleging that the Chinese government have used the COVID-19
via facilitating its outbreak worldwide, especially against
citizens of the United States of America (USA), her perceived enemy
and whom it is in a trade world with to perpetrate crimes humanity
in violation of Article 5 of the International Criminal Court
Statute (known as the Rome Treaty). The Complainants are inviting
an investigation into the circumstance of the outbreak which they
believe will validate and vindicate their claims against the
Defendants.
The particulars of both suits accuse China of aiding and
abetting death, provision of material support to terrorists,
conspiracy to cause injury and death of US citizens, negligence,
wrongful death, and assault and battery. They allege the virus had
released from the Wuhan Virology Institute. The plaintiffs stated
that the COVID-19 virus was “designed” by China to kill mass
populations. Biological weapons were outlawed in 1925 and hence
such a biological weapon is a terrorist-related weapon of mass
destruction, the lawsuit mentioned. The American group cites
multiple media reports that said that there was only one
microbiology lab in China that handled advanced viruses like the
novel COVID-19 – in Wuhan. To cover-up, the plaintiffs alleged,
China-linked statements COVID-19 with national security protocols.
Klayman and the plaintiffs also alleged that Chinese doctors and
researchers who spoke out about COVID-19 and “raised the alarm to
the outside world internationally” have been “silenced”. They added
that such was the desperation of Major General Chen to save herself
from the virus that she injected herself and six members of her
team with a potential vaccine that was yet to be tested. They also
alleged that all the defendants were working together to perpetuate
“international terrorism”. The lawsuit stated that while COVID-19
is slow-acting and slow-spreading to be used against a country’s
military, “it was designed to be used against the general
population of one or more of China’s perceived enemy nations, such
as the United States.” The American plaintiffs also asked for a
jury trial against the Chinese defendants. As of now, there is no
official communication from the ICC on the complaint.
While the objective of those legal actions is genuinely
remarkable, the absence of any authoritative report either by an
investigative bodies, or any national or international organization
on the circumstances surrounding the origin, containment and spread
of the COVID-19 pandemic will make it extremely difficult to
achieve the desired outcome. Available information at this time is
merely conjectures, logical theories and fantasies and most notably
the Chinese Government is yet to provide sufficient information
about the COVID-19 pandemic considering that it originated within
one of its provinces, the matter is bereft of absolute certainty.
Certainly, for anyone’s quest to sue the People’s Republic of China
for negligence over the COVID-19 outbreak to bear any fruit, it is
believed that more information, particularly about its origin,
containment and spread, is required.
Contributors from J-K Gadzama LLP:,
Geraldine Mbah, Junior Partner,
mbah@j-kgadzamallp.com, Musa
Jerry, Associate,
musa.jkgadzamallp.com, Ignatius
Ozoilo, Visiting Associate,
ozoilo.jkgadzamallp@gmail.com
Contributors from J-K Gadzama LLP:,
Geraldine Mbah, Junior Partner,
mbah@j-kgadzamallp.com, Musa
Jerry, Associate,
musa.jkgadzamallp.com, Ignatius
Ozoilo, Visiting Associate,
ozoilo.jkgadzamallp@gmail.com
Recently, three cases were filed against China as a result of
the COVID-19 outbreak. The cases are seeking billions of US dollars
as reparation against China for the outbreak of COVID-19. Of the
three cases filed, only one was instituted on grounds of negligence
or recklessness in the management and containment of the COVID-19
by the Chinese government. The other cases were filed by different
plaintiffs on different grounds of terrorism, crime against
humanity & genocide and the spread of bioweapon. The cases are all
predicated on the idea that China is responsible for the cause and
global spread of coronavirus and therefore must be held liable for
the human and material losses suffered by many people around the
world.
While the propriety of the contemplated actions is not in doubt,
the consternation within the international legal circle is
obviously about the complexity of issues associated with
extraterritorial litigation of such high magnitude – not list – the
legal determination under which the plaintiffs would hope to
succeed and how they are going to scale the thick walls of conflict
of laws principles.
Coronavirus disease (COVID-19) has in no doubt stunned the
world. Its effect has virtually brought the world as we know it to
its knees under a lockdown or highly restrictive movement of
persons. The World Health Organization (WHO) has since labelled the
COVID-19 a world-wide pandemic, a description only ascribed to the
world’s worst health emergencies.
So far, more than 2 million people across the continents of the
world have been confirmed to be infected with the virus, with this
number on the increase by each day. An estimate of about 200, 000
persons have been confirmed to have died from the virus with the
figure increasing daily and over 400, 000 persons have also been
confirmed to have recovered from the virus, the figure likewise
increasing daily.
The havoc caused by this pandemic is colossal. World economic,
social, religious, sports and entertainment industries are all at a
standstill. More than one-quarter of the world’s 7.8 billion people
are now largely confined to their homes, as governments step up
curbs on movement and social contact in a bid to contain the virus.
In many parts of the world, borders are closed, airports, hotels
and businesses shut, and school cancelled. These unprecedented
measures are tearing at the social fabric of some societies and
disrupting many economies, resulting in mass job losses and raising
the spectre of widespread hunger.
The legal actions being instituted aims to capture the essence
of shared humanity, which underlines class action litigation – the
idea that the loss of one is the loss of all. Argument about legal
liability will not only raise factual and evidential questions but
most critically questions about legal principles relevant to the
unique circumstances of COVID-19 in terms that will give rise to
responsibility and possibly restitution.
Of the three causes of action in view, negligence would seem to
be most contentious. The lawsuit filed in Florida last month which
seeks to make the Chinese government pay for what they’ve done in
its handling of the novel COVID-19 outbreak, saying the country
acted “negligently in their handling of the COVID-19 outbreak.” The
suit filed by a personal injury law firm based in Boca Raton is
bringing the suit against China and various Chinese government
agencies on behalf of “individuals and business owners in the
United States and State of Florida, for damages suffered as a
result of the COVID-19 pandemic.”
The suit claims China “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 in their economic
self-interest.” The lawsuit does not name a specific dollar amount
being sought from China, asking for “compensatory and other damages
to Plaintiffs and the Class Members, for their economic and
non-economic damages … to the full extent permitted by the law.”
According to Alters, the Chief Strategist of the Firm, “We want the
court to make them pay for what they have done, they have unleashed
… a massive pandemic on the world. It appears they knew about it
long before they gave information about it to the rest of the
world. We want our courts to say, ‘China, you are going to be held
accountable here in our courts because you have harmed hundreds of
millions of Americans.”
By going down this route, the plaintiffs (claimants) are
suggesting that China should have exercised reasonable care in
their actions in relations to COVID-19 by taking account of the
potential harm that they might foreseeably cause to other people
and property up and down the world. For them to succeed, they must
establish that China not only owes them a duty of care but also
that the country is in breach of that duty and the human and
material loses the plaintiffs (claimants) suffered are a direct
consequence of the breach of that duty. In other words, for there
to be any realistic prospect of succeeding with their claim, they
must prove the elements of duty, breach cause and harm. From what
is known already it is possible to prove harm – that many lives
have been lost and there were obviously huge economic loses. It is
without question that those loses (human and material) were the
direct effect of coronavirus. However, the battleground really is
regarding the issue of duty and breach of duty.
While it is a lot easier to pursue this cause under common law
and statutory instruments of domestic jurisdictions, the effort to
achieve that extraterritorially will prove to be daunting.
Certainly, the concept of liability is much more developed in
domestic law and its introduction to international law cannot
ignore the experience gained in this area in domestic law. The need
to develop liability regimes in an international context has been
recognized and has found expression mainly in instruments concluded
at treaty level between Nations or a cluster of Nations under
different regional or business relationships. A good reference is
the Principle 22 of the Declaration of the United Nations
Conference on the Environment (Stockholm Declaration) 1972, a
common conviction was expressed that: States shall co-operate to
develop further the international law regarding liability and
compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction
or control of such States to areas beyond their
jurisdiction. There is also Principle 13 of the Rio
Declaration on Environment and Development, which addresses the
national and international contexts by broadly proclaiming: ‘States
shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage. States
shall also cooperate in an expeditious and more determined manner
to develop further international law regarding liability and
compensation for adverse effects of environmental damage caused by
activities within their jurisdiction or control to areas beyond
their jurisdiction.’
In effect, liability for any transboundary harm caused by a
nation under international law has for now only gained strength
through instruments and treaties. The regime is yet to flourish as
recognized customary international law. What this means is
that, if the People’s Republic of China is to be liable for any
form of negligence in the management of the COVID-19 outbreak which
has resulted to the loss of lives and businesses in other nations,
there has to be an instrument existing that establishes China’s
liability where it fails to deal properly and reasonably with an
infectious disease and that failures or negligence leads to
transboundary injury. It does not appear that such an instrument
exists now. So, even if investigations were to reveal that the
Chinese government was negligent in the manner it handled the
containment of the COVID-19 virus through its policies, such that
it resulted to the current global escalation, the likelihood of
person(s) affected to maintain an action and secure judgment
against China for damages based on negligence is slim, if not
completely non-existent.
Where, however, the grounds of such an action were to be centred
on matters covered by existing treaties or instruments, the action
will have its day in court and be heard on its merit, even though
the likelihood of success will also depend on the establishment of
required facts to satisfy the standard of proof required under such
a treaty or instrument. The territorial jurisdiction of such
matters and the mode of enforcement of the judgment obtained will
depend largely on the provisions of treaty or instrument being
enforced.
Assessing the chances of this suit, which is based on the United
States of America’s Class Action Fairness Act of 2005 (CAFA)
reveals that its success is rather difficult considering the
provisions of the United States’ Foreign Sovereign Immunities Act
(FSIA) which prevents Americans from suing other countries except
under specific circumstances. The plaintiffs claim they fit under
the exceptions for commercial activity and “personal injury or
death” that stems from “the tortious act or omission of that
foreign state or of any official or employee of that foreign state
while acting within the scope of his office or employment. A
Professor of Law at Yale Law, however, disagrees that the suit
falls within the exceptions claimed by the plaintiffs. The progress
of this suit will depend largely on the Florida Southern Districts’
Court interpretation of the exceptions claimed by the plaintiffs.
It is noteworthy to state that, it remains to be seen if the
People’s Republic of China will subject herself to seemingly the
domestic laws of the United States for actions claimed to have
taken place in China.
Beyond the FSIA difficulties, another likely weakness in the
case is the fact that it treats the idea that COVID-19 potentially
came from a lab – which has been debunked – as a legitimate
“alternative theory.” This could potentially undermine the majority
of its case, which pushes the widely understood story that the
virus was transmitted from an animal to a human at a wild animal
market in the city of Wuhan before China responded to the health
threat with obfuscation and censorship.
Generally, actions against Nations on civil liabilities are
brought before the International Court of Justice (ICJ) and should
be brought by another Nation, multilateral organizations or
individuals, where the liability incurred bothers on the protection
of human rights only. Some instrument or treaty sometimes provide
for dispute resolution mechanism that can be explored by aggrieved
Contracting States or their citizens. In such a case, it is
expected that all such avenues of dispute resolution should be
exhausted before recourse is made to the ICJ.
The second and third suit are all filed by American Lawyer Larry
Klayman and his advocacy group. One of it – a $20 trillion lawsuit
has been filed against Chinese authorities in the US by Klayman,
his advocacy group Freedom Watch along with Texas company Buzz
Photos before a Texas District Court in Texas, USA. The lawsuit is
against the Chinese government, Chinese army, the Wuhan Institute
of Virology, Director of Wuhan Institute of Virology Shi Zhengli
and Chinese army’s Major General Chen Wei. The plaintiffs have
sought $20 trillion, which is a bigger amount than China’s GDP,
claiming COVID-19 is the result of a biological weapon prepared by
the Chinese authorities in violation of her treaty obligations
under the “Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction and Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of Warfare.
The third is a complaint made before the International Criminal
Court (the ICC). Klayman and his advocacy group have equally
submitted a complaint before the ICC on the same facts as the civil
suit alleging that the Chinese government have used the COVID-19
via facilitating its outbreak worldwide, especially against
citizens of the United States of America (USA), her perceived enemy
and whom it is in a trade world with to perpetrate crimes humanity
in violation of Article 5 of the International Criminal Court
Statute (known as the Rome Treaty). The Complainants are inviting
an investigation into the circumstance of the outbreak which they
believe will validate and vindicate their claims against the
Defendants.
The particulars of both suits accuse China of aiding and
abetting death, provision of material support to terrorists,
conspiracy to cause injury and death of US citizens, negligence,
wrongful death, and assault and battery. They allege the virus had
released from the Wuhan Virology Institute. The plaintiffs stated
that the COVID-19 virus was “designed” by China to kill mass
populations. Biological weapons were outlawed in 1925 and hence
such a biological weapon is a terrorist-related weapon of mass
destruction, the lawsuit mentioned. The American group cites
multiple media reports that said that there was only one
microbiology lab in China that handled advanced viruses like the
novel COVID-19 – in Wuhan. To cover-up, the plaintiffs alleged,
China-linked statements COVID-19 with national security protocols.
Klayman and the plaintiffs also alleged that Chinese doctors and
researchers who spoke out about COVID-19 and “raised the alarm to
the outside world internationally” have been “silenced”. They added
that such was the desperation of Major General Chen to save herself
from the virus that she injected herself and six members of her
team with a potential vaccine that was yet to be tested. They also
alleged that all the defendants were working together to perpetuate
“international terrorism”. The lawsuit stated that while COVID-19
is slow-acting and slow-spreading to be used against a country’s
military, “it was designed to be used against the general
population of one or more of China’s perceived enemy nations, such
as the United States.” The American plaintiffs also asked for a
jury trial against the Chinese defendants. As of now, there is no
official communication from the ICC on the complaint.
While the objective of those legal actions is genuinely
remarkable, the absence of any authoritative report either by an
investigative bodies, or any national or international organization
on the circumstances surrounding the origin, containment and spread
of the COVID-19 pandemic will make it extremely difficult to
achieve the desired outcome. Available information at this time is
merely conjectures, logical theories and fantasies and most notably
the Chinese Government is yet to provide sufficient information
about the COVID-19 pandemic considering that it originated within
one of its provinces, the matter is bereft of absolute certainty.
Certainly, for anyone’s quest to sue the People’s Republic of China
for negligence over the COVID-19 outbreak to bear any fruit, it is
believed that more information, particularly about its origin,
containment and spread, is required.
Contributors from J-K Gadzama LLP:,
Geraldine Mbah, Junior Partner,
mbah@j-kgadzamallp.com, Musa
Jerry, Associate,
musa.jkgadzamallp.com, Ignatius
Ozoilo, Visiting Associate,
ozoilo.jkgadzamallp@gmail.com
Read more prospect-of-successfully-holding-china-legally-liable-over-covid-19/