Xiao Jinquan, Senior Partner and Lawyer of Beijing Dentons Law Offices

1. Some organizations and individuals in many countries filed claims for compensation from China

As the global spread of the epidemic has intensified, since mid-March, the phenomenon of overseas countries have attributed the blame for the epidemic to China and demanded huge compensation from China is increasing.

On 13 March, a law firm called "Berman Lawyers Team" in Boca Raton, Palm Beach County, Florida, filed a class action lawsuit against the Chinese government, demanding the Chinese government to compensate billions of dollars for the epidemic. The law firm’s indictment stated that “the Chinese government knows that the New Coronavirus Epidemic is dangerous and may cause a global pandemic, but it is slow to act, avoid problems, and cover the epidemic for its own economic interests”. And this indictment has been supported by the US court. According to the latest news, they will formally hold a hearing on 1 May.

On 17 March, Larry Klayman, a well-known American conservative legal fighter and former Justice Department prosecutor, filed a class-action lawsuit in the Northern District of Texas District Court, demanding 20 Trillions of dollars in compensation from the Chinese government for the losses caused by the coronavirus.

On 24 March, the US Senate and House of Representatives introduced a number of bills. At the end of March, US Senator Josh Hawley called for an international investigation into China’s handling of the coronavirus outbreak. The international community should quantify the damage caused by the epidemic and "design" a reasonable method for China to pay compensation. Some lawmakers also believe that the United States should waive the obligation to repay China's $1 trillion national debt to make up for the losses caused by the new crown epidemic.

 The US Attorney General of Missouri, Eric Schmitt, filed a civil lawsuit in federal court on April 21. The lawsuit stated that "China's response to the epidemic caused the state to suffer huge economic losses" and demanded "cash compensation." "As a result, Missouri became the first state in the United States to file a lawsuit against China on the grounds of the epidemic. The Missouri Attorney General (Eric Schmitt) listed two unwarranted reasons in the indictment: First, defaming China for falsely reporting domestic epidemic data, which caused Missouri and residents to lose nearly tens of billions of dollars in the epidemic; second, " Allegations that the Chinese government "hoarded" masks and other personal protective equipment, causing the state to worsen the epidemic.

On 7 April, the US Senate Committee on Foreign Relations called for an independent investigation into China and WHO’s response to the epidemic; On 13 April, the Senate's Homeland Security and Government Affairs Committee also announced that it would investigate China's "responsibility" in this epidemic.

In addition, since 9 April, at least 10 Republican congressmen, including Senator Graham, congressman wellinghouse, Senator Blackburn, Senator holly, Senator cotton and Senator cruise, have demanded that China be responsible for and compensate for the U.S. epidemic, and call on the U.S. government to take corresponding sanctions against China.

On 16 April, Republican Senator Tom Cotton and Republican Congressman Dan Crenshaw initiated a draft, claiming that China should be responsible for the outbreak in the United States, and that American citizens can sue the Chinese government in the U.S. Federal Court. I want the Chinese government to compensate for the deaths and injuries of the Americans and the economic losses of the United States.

Article 4 of the draft also states that “Any country that causes the virus to spread abroad needs to face the trial of the US judicial system.”

The Catholic leaders of Myanmar have also made similar remarks: Under the outbreak of the epidemic, poverty and civil conflict have made Myanmar “extremely vulnerable”. Compared with developed countries, the lack of health and social care resources will make the current problems worse. China must apologize for its ineffective prevention and spread of the epidemic, and at the same time compensate countries for the losses caused by the epidemic.

Australian MP George Christensen said at the end of March: China should be responsible for the epidemic, whether it is negligence or deliberate, it is ultimately China's fault. He then proposed that, given that China is unlikely to pay compensation for the coronavirus outbreak, “maybe Australia can recover its foreign-owned land as compensation for losses”. Many lawmakers have proposed to cancel the lease of Darwin Port, but they were all rejected by the Australian government. But Christensen mentioned the recovery of Chinese-owned properties, land and infrastructure, including Darwin Port, as a method of compensation for the new crown pneumonia. The land here mainly refers to the land that is legally leased and used by China and Australia, such as Darwin Port with a lease term of 99 years from 2015.

On 4 April, related reports stated that the president of The International Council of Jurists, Edith Agwala, represented the International Association of Jurists and The All India Bar Association (The All India Bar Association) to United Nations Human Rights Council filed a complaint asking China to pay US$20 trillion in damages caused by the new crown epidemic. The reason for their complaint is that China's secret development of the new coronavirus, a biological weapon of mass destruction, caused a global disaster. With the new crown epidemic sweeping the world, China must take legal responsibility for "serious crimes against humanity." The Chinese government's conspiracy aims to promote itself to the position of the world's superpower and destroy other countries through the spread of the virus. "They also said that China has developed a virus in a virus laboratory. After careful deployment, the virus will only affect 0.001% of the Chinese population. As a result, China can reduce the loss to its own people and let other countries experience the bitter fruit. 

On 6 April, a nearly 40-page investigation report submitted by the Henry Jackson Society (HJS), a British diplomatic think tank, found that the Chinese government violated its international health duties and caused more than one million infections worldwide. The G7 including the United Kingdom, the United States and Japan suffered 3.2 trillion pounds (6.5 trillion US dollars) in losses. This report only calculates the losses so far. The report also lists 10 possible legal ways to recover this amount. Expenses. As early as March, 15 Conservative MPs led by the former Deputy Prime Minister of the United Kingdom wrote a letter to the current Prime Minister Johnson, requesting a re-examination of Sino-British relations. He also sought compensation of 351 billion pounds from the Chinese government. The UK has also publicly stated that it will reconsider 5G cooperation with Huawei.

The British "Times", "Daily Mail", "Daily Express" and other media, regardless of the previous refutations of the Chinese Embassy in the UK, fueled the flames and discredited China's great contribution to the health and safety of the people of the world.

2. There is no factual or legal basis for litigation and compensation against China, and China does not have any liability or obligation for damages

(1) In human history, there is no case of national legal compensation caused by natural virus infection

Since ancient times, there have been many major viral infections in human history. More recently, HIV, Ebola, avian influenza virus, Hendra virus, etc. have occurred in different countries, causing a certain range of international spread. However, no country has claimed that the relevant countries bear liability for compensation.

In 1918, a deadly flu broke out in a military camp in Kansas, USA. Soon it spread throughout the world with military operations. Infected one-third of the world ’s population, with killing more than 20 million people. Because only Spanish very honestly acknowledged the outbreak in their country, the disease was called Spanish flu. After the end of the pandemic, no one sought compensation from the United States or Spain. In 2009, the H1N1 virus caused a global pandemic of influenza. The United States was the source of the virus, and Mexico was the starting point of the outbreak. The failure of the United States to effectively control the epidemic had led to a global pandemic. The United States neither took the initiative to take responsibility, nor asked Mexico to take responsibility for compensation. Other countries had not demanded that the United States be liable for compensation. China, as the first place and the first victim of the New Coronavirus pneumonia epidemic, notified the epidemic in time and should not be a reason for persecution.

(2) China does not meet the constitutive requirements of liability for damages

First, China is not the subject of damage liability, and there is no harmful behavior. The cause of the outbreak is the virus. After the outbreak in China, the Chinese government has made all the information about the new crown disease public, true and transparent, and has done nothing to conceal it. As a starting country, China has unreservedly shared its research directions, results, and prevention and control experience in the fight against the epidemic with the world, and has bought precious time for the global fight against the epidemic. Neither China nor the World Health Organization has done any negative damage, let alone become the main body of damage.

Second, there is no causal relationship between China and the occurrence of the epidemic. On the one hand, since the outbreak of the epidemic, China has concentrated its medical, technological, and social forces, with the most comprehensive, strict, and thorough prevention and control measures, paying huge costs and sacrifices to build the first line of defense for global epidemic prevention and control. It has also created a valuable window for other countries to prevent and control the virus, and has essentially made an important contribution to the prevention and control of the global epidemic; on the other hand, the spread of the new crown pneumonia epidemic in other countries outside China is to some extent related to the characteristics of the virus itself and the effectiveness of various countries’ epidemic prevention and control measures.

China is the first place of the epidemic, but it is not yet certain that it is the origin of the virus. Even in the place of origin, there is no international legal provision that requires the country of origin to compensate other countries for losses caused by the epidemic. The occurrence of the epidemic is related to human's ability to recognize and control the virus. The new coronavirus is a new type of virus. Its transmission route, infection intensity, and pathogenic characteristics are different from other known human viruses. For China, the outbreak of the epidemic is difficult to predict and control.

Third, China has no fault in its fight against the epidemic. Since the outbreak of the epidemic, China has actively taken prevention and control measures. General Secretary Xi Jinping personally directed and deployed himself, and clearly put forward a series of prevention and control requirements, providing a strong guarantee for the fight against the epidemic. Since 3 January, China has regularly notified the WHO and relevant countries of the epidemic information and prevention and control measures in a timely and proactive manner. The results China has achieved in fighting the epidemic are obvious to all. However, some Western countries not only did not take immediate action, even after the first confirmed cases in my country, they still allowed the virus to spread through various public activities for nearly half a month. Behind the rapid outbreak of the epidemic out of control in a short period of time is the country's inaction and carelessness. These countries should reflect on their own.

(3) China does not meet the constitutive requirements of state responsibility in international law

State responsibility is an important legal system in modern international law. It refers to the legal responsibility that a country should bear for its wrongful acts, and it also means the rights that the affected country has because of this. Article 2 of the 2001 "Draft Articles on State Responsibility for Internationally Wrongful Acts" (referred to as the "Draft Articles on State Liability") of the United Nations International Law Commission states: "An internationally wrongful act of a country occurs under the following circumstances: (a) Acts consisting of acts or omissions are attributed to the country under international law; and (b) the act constitutes a breach of the country’s international obligations". In other words, if a country’s internationally wrongful act causes national responsibility, two components must be met at the same time. One is the illegality of the act, and the other is that the act is attributable to the state. An in-depth analysis of the relevant provisions of State responsibility in international law reveals that whether it is the British think tank Henry Jackson Institute’s claim that China’s “initial attempt to conceal information on the epidemic” allowed the United Kingdom to file a lawsuit against the International Court of Justice and other institutions for a claim of 351 billion pounds, or the All-India Bar Association and the International Commission of Jurists alleged the practice of filing a complaint with the United Nations Human Rights Council for US$20 trillion due to China’s “failure to notify the WHO in a timely manner and share information with other countries”.Politicians, organizations, or media in individual countries have followed the trend in their words and deeds in pursuit of responsibilities and claims against China.

(4) State immunity is a basic legal principle in the world

The United States is accustomed to long-arm jurisdiction with domestic laws. Although restricting companies or individuals may work, it is impossible to restrict China, a large country.

According to the US "Foreign Sovereign Immunity Act," US courts respect the national jurisdiction and sovereign immunity of other countries. There are two exceptions. One is the country's commercial activities in the commercial field, and the other is the infringement against the United States, but the infringement must occur within the jurisdiction of the United States. China’s actions to control the epidemic took place within China, and the impact of the epidemic in the United States was not caused by China’s actions in the United States. Therefore, the lawsuits filed by American law firms have no legal basis in terms of international law or domestic law.

The prosecution in Missouri in the United States simply cannot be established. On the factual level, the Chinese government has fulfilled its obligation of international notification of the epidemic, and has not caused damage to the United States’ ineffective epidemic prevention. Secondly, at the legal level, US courts have no jurisdiction over foreign governments. Unless the United States abolishes the principle of "sovereign immunity" in its domestic law, the United States Federal Court cannot accept Missouri's lawsuit against the Chinese government.

"Sovereign immunity" is an international legal principle. The US "Foreign Sovereign Immunity Act" stipulates that, except in special circumstances, foreign countries enjoy immunity from the civil jurisdiction of US courts.

Based on the principle of "sovereign immunity" in international law, foreign governments cannot be tried in courts of other countries. This means that suing the Chinese government in the US federal courts cannot be established under US law.

(5) The International Court of Justice has no compulsory jurisdiction

Scholars in some countries advocate that the Chinese government should be sued to the International Court of Justice, which cannot be supported. The International Court of Justice has no jurisdiction over this. At the same time, physically, the Chinese government has not committed internationally illegal acts, and has nothing to do with the losses suffered by other countries due to the epidemic, so it does not need to bear national responsibility.

The International Court of Justice is the main adjudication body established under the Charter of the United Nations. The jurisdiction of the International Court of Justice includes the jurisdiction over legal dispute litigation cases submitted by various countries and the jurisdiction over legal advisory matters submitted by authorized United Nations agencies and specialized agencies. Article 36, paragraph 2, of the Statute of the International Court of Justice, also known as "optional clause", is the basis for the International Court of Justice to obtain compulsory jurisdiction over certain legal disputes between parties to the statute. That is, all countries that recognize the compulsory jurisdiction of the International Court of Justice will hand over the jurisdiction of the International Court of Justice to resolve these disputes that may arise between them in the future. On the issue of the jurisdiction of the International Court of Justice, my country has always adhered to the principle of voluntary consent and has not accepted compulsory jurisdiction. Therefore, even if they file a lawsuit in the International Court of Justice, the International Court of Justice does not have compulsory jurisdiction over China.

3. China should and can adopt response strategies

(1) Recourse and request to restore the truth about the source and spread of the virus

In response to the fact that some countries in the world have proposed that China deliberately create a virus, China should restore the truth to the world. Whether the virus occurs artificially or naturally, scientific professionals should give authoritative opinions, rather than being used by so-called "legal experts" and politicians with bad purposes. Among the current international institutions, only the conclusions drawn by World Health Organization and the United Nations are objective. In fact, World Health Organization has already made a clear opinion that the virus cannot be artificially synthesized, and China's notification time is also very clear.

(2) China proves to the world the effectiveness and efforts of adopting epidemic prevention and control measures with facts

The epidemic broke out in many places around the world. When some countries encounter difficulties, China overcomes its own difficulties and supports countries in fighting the epidemic. China has shared technical files such as epidemic prevention and control and diagnosis and treatment plans with 180 countries and more than 10 international and regional organizations; provided a donation of 20 million US dollars to WHO, held expert video conferences with more than 100 countries and international organizations, and communicated to 120 countries and 4 international organizations provided assistance in materials such as masks, protective clothing, nucleic acid testing reagents, ventilators, and dispatched medical expert teams to Iran, Iraq, Italy and other countries... In the global fight against the epidemic, China has unreservedly shared World Health Organization and the international community with prevention, control and treatment experience, and provide assistance to all parties within its capacity, which reflects China's great love of working together and overcoming difficulties.

China should collect and sort out the facts and evidence that China has adopted strong anti-epidemic measures to prove that China has taken timely and effective measures, and fulfilled its obligations of notification and information sharing to the WHO and various countries, and actively assists the WHO and other countries in the fight against the epidemic. Epidemic work. China strengthens international propaganda to increase the international community’s recognition of facts and truth.

(3) Request to trace the source of the virus

The new crown pneumonia epidemic first broke out in China, and China is a real victim. As the epidemic spread throughout the world, many scholars began to study the true source of the virus. On 8 April, researchers at the University of Cambridge in the United Kingdom published a study in the Proceedings of the National Academy of Sciences (PNAS)-setting a bat coronavirus with a 96.2% homology to the new coronavirus as a new coronavirus the "ancestors" of animals, and based on this, the 160 new coronavirus genes from all over the world extracted from the "Global Influenza Data Initiative" (GISAID) database are divided into A 、B 、C three types according to the evolutionary relationship.

Among them, the type A new coronavirus is the closest to the coronavirus in bats, and it is identified by researchers as the "primitive" type of new coronavirus that spreads on humans. The study found that although type A strains appeared in Wuhan, China, there were more variant type B strains in Wuhan samples, and type A strains were more common in research samples in the United States and Australia. The C-type strain circulating in Europe is derived from the B-type mutation that has spread in China and East Asia.

In addition, the ABC website reported on the 9th that a new genetic study showed that the new crown pneumonia virus began to spread in New York as early as mid-February, and the virus was mainly brought by European travelers, not from Asia. . The study traced the source of the outbreak in New York City by analyzing the complete virus genome across four administrative regions and two adjacent towns before 18 March. Researchers found that the new crown epidemic in New York City was mainly caused by untracked transmission between the United States and Europe, and there was insufficient evidence to prove that the epidemic was directly imported from China or other parts of Asia.

At present, there is no definitive conclusion on the source of the new coronavirus that caused the epidemic. China can request relevant UN agencies or the World Health Organization to establish a special agency to investigate the source and spread of the new coronavirus, and give objective conclusions.

(4) Lawsuits can be launched in the United States and Western countries to investigate the truth

If the United States and other Western countries insist on ignoring facts and laws and forcibly file a lawsuit against China under domestic law and file a case for trial, then Chinese victims can also  can also file domestic lawsuits against matters, “U.S. athletes participating in the Wuhan Military Games may be carriers of the new coronavirus, causing a pneumonia outbreak in China”, reported by the relevant media based on the principle of reciprocity.

(5) China should improve its legislation as soon as possible, conduct research on the problems arising from the new normal of international environmental changes, and establish China's "long-arm jurisdiction" legal mechanism

China's GDP in 2019 has reached 100 trillion yuan, of which a considerable part is formed through import and export and investment, and the amount and quantity of international economic activities are huge. How to protect China's overseas interests under the new normal of the international economic environment is a problem that urgently needs to be studied and resolved. We should legislate as soon as possible to establish China's "long-arm jurisdiction legal mechanism", in accordance with the principle of international reciprocity, to exercise jurisdiction and legal protection for the infringement of the interests of Chinese companies and individuals by relevant countries.

Xiao Jinquan’s profile: Dentons’ senior partner and lawyer, INERI’s consultant, former Dentons’ global vice chairman, former Denton’s China CEO, and director of the Economic Professional Committee of the All China Lawyers Association, a well-known investment and merger expert. He has published "Who Will Save United States", "International Private Equity", "Opportunities and Challenges-Risks and Prevention of Chinese Companies' Overseas M&A" and other monographs, and was invited to give lectures at Harvard University, Massachusetts Institute of Technology and other American institutions.