Global Demand For Justice, Answers From Beijing Over Pandemic Grows

May 19, 2020 Updated: May 23, 2020

Losing her father and aunt to the pandemic was surreal for Lorraine Caggiano. It all occurred within two weeks of returning to New York from a wedding in Connecticut, before the lockdown restrictions.

Her mother was the first to exhibit symptoms, coming down with a fever on March 12. After receiving emergency care where she tested negative for strep throat and the common flu, she was tested for COVID-19 and told to self-isolate for a week.

During the isolation period, Caggiano brought her 83-year-old father to live with her family out of precaution. But it was already too late. Four days later her father woke up feeling confused and unwell.

“At some point, he couldn’t even put one foot in front of the other to walk into the shower, and he was breathing heavily, so we said, ‘Okay something is wrong here,’” Caggiano told The Epoch Times.

Caggiano’s father was taken to the hospital where he passed away on March 28 from COVID-19-related complications. That was just days after she lost her aunt to the same disease.

“I never saw my father in the hospital because we weren’t allowed to go, obviously. I didn’t see him in a casket because we couldn’t have a wake. We couldn’t have anything,” she said.

Caggiano, who was sick with a fever for 12 days herself, is now demanding answers on how the virus that emerged in Wuhan, China, quickly ballooned into a global pandemic.

She is one of the many plaintiffs who joined Florida-based Berman Law Group’s class-action lawsuit seeking damages from the Chinese Communist Party (CCP) over its handling of the outbreak of the CCP virus, commonly known as the novel coronavirus.

“What I’m hoping to come out of it is some accountability and some clarity and some truth to see what really, really happened,” Caggiano said. “And to see how moving forward we can prevent such a thing. I mean, the world has been turned on its ear—it’s insane.”

Like Caggiano, many Americans have joined similar class-action lawsuits around the country to demand answers and reparations over the Chinese regime’s role in the spread of the virus. Meanwhile, around the world, calls for accountability and answers from the regime are also mounting.

At least six class-action lawsuits have been filed by individuals or businesses in U.S. federal courts against the regime, including ones in Florida, Texas, Nevada, and California. Attorneys general of Missouri and Mississippi have filed separate lawsuits against the Chinese regime on behalf of their states, with other states expressing interest in following suit.

Globally, similar lawsuits have also been filed in Italy, Nigeria, Egypt, and Argentina.

Many of those lawsuits allege that the communist regime’s pattern of suppressing information, threatening whistleblowers, and misrepresenting the severity of the disease between mid-December and mid-January had caused or contributed to the spread of the virus, resulting in sweeping human and economic devastation.

Previous reporting by The Epoch Times citing research, interviews with Wuhan locals, and internal government reports have revealed that Chinese authorities have been significantly downplaying the severity of the outbreak. Meanwhile, some legal experts have said that Beijing could potentially be held legally responsible under international law for the alleged coverup and mishandling of the virus.

One study, in pre-print and not yet peer-reviewed, from researchers at the University of Southhampton in the United Kingdom found that if Chinese authorities had acted three weeks earlier, the number of cases could have been reduced by 95 percent.

A report (pdf) from UK-based think tank Henry Jackson Society published in April found that the Chinese regime could potentially be sued for more than $4 trillion in damages for its negligence and contributory role in the pandemic. This represents the estimated cost to G-7 countries—the world’s top seven economies—after addressing the economic fallout from drastic measures taken to protect the health and security of their societies in response to the pandemic.

Sam Armstrong, a co-author of the report, said that the many lawsuits and calls for investigations into the Chinese regime’s handling of the virus are a manifestation of the global demand for justice. He said that because there is currently no agreed forum for people to seek this accountability, individuals are finding their own ways to do so.

“That resentment, that bubbling feeling that China has gotten away with wreaking havoc, will not go away until it finds an outlet around which everyone can gather,” Armstrong told The Epoch Times.

Armstrong said he believes there is a building movement calling for an inquiry into the origins of the pandemic, which he predicts would reach its peak when the international community can longer ignore it. Multiple countries have already expressed an appetite for launching such an inquiry. Australia, despite receiving blowback from China, is firm in its call for an independent international inquiry into the pandemic. These calls have been echoed by the European Commission, Sweden, and Germany.

In the United States, Trump and other administration officials have also been highly critical of the CCP’s lack of transparency in the early stages of the outbreak. President Donald Trump previously said that the United States is doing “serious investigations” into CCP’s handling of the virus. He also hinted that the administration may be looking into ways for the United States to be compensated for the damage suffered.

Meanwhile, lawmakers have proposed bills to penalize China should it fail to cooperate with investigations. Last week, Sen. Lindsey Graham (R-S.C.) introduced a bill—The COVID-19 Accountability Act—which allows the president to impose sanctions on China if the regime fails to provide a full account of the events leading up to the outbreak of COVID-19.

“I’m convinced that without Chinese Communist Party deception the virus would not be here in the United States,” Graham said in a statement. “We must determine how the virus came about and take steps, like closing the wet markets, to ensure it never happens again. It’s time we push back against China and hold them accountable.”

Rep. Doug Collins (R-Ga.) introduced a companion bill to Graham’s in the House of Representatives.

Another bill proposes to amend the Foreign Sovereign Immunities Act to create a narrow exception that allows Americans to sue China for damages over the pandemic.

The Chinese regime has repeatedly rejected the calls for probes into the origin of the virus, saying that they would not agree to any investigation while claiming that the calls for an investigation are “politically motivated.” The regime has also dismissed some of the lawsuits.

On May 18 before the World Health Organization, Chinese leader Xi Jinping signaled that Beijing would be open to a review of the global response to the pandemic.

Finding the Right Forum

The Henry Jackson Society report has identified a number of potential legal avenues that are open to states and individuals who seek compensation for the devastation caused by the pandemic.

Some of these avenues identified include bringing claims for breaches of state responsibility and violations of treaties under international tribunals, arbitration, and courts, filing lawsuits in Hong Kong courts, filing suits in foreign courts like in the United States or the UK, and taking the dispute directly to the World Health Organization for alleged violations under the International Health Regulations.

As many legal experts noted, Beijing cannot be compelled to submit to international justice or participate in these forums. The think tank suggested that what the international community could do instead is seek an advisory opinion from the International Court of Justice (ICJ). Advisory opinions can be requested by the U.N. Security Council, the U.N. General Assembly, or other U.N. bodies. Beijing may have veto powers at the Security Council, but it does not have the power to block General Assembly resolutions, the authors said.

An ICJ legal opinion may not necessarily provide a resolution to a dispute between other countries against Beijing over its pandemic response but it could clarify the law. Armstrong noted that an ICJ advisory opinion has its weaknesses because Beijing could dispute any facts presented by other countries—a dispute which may not have any resolution.

“The difficulty is an advisory opinion can only adjudicate matters of law but it can’t adjudicate matters of fact,” Armstrong said.

He suggested that the international community could instead set up its own forum according to rules that it decides, such as using an independent people’s tribunal or a forum similar to the Dutch inquiry into the downing of Malaysian Airlines Flight 17.

“It’s going to have to come up with a structure that is capable of handling questions of fact, as well as questions of law,” he said.

Meanwhile, Dr. Robert Sanders, an associate professor of national security at the University of New Haven, has suggested alternatives to an inquiry. He told The Epoch Times that he thinks the international community could set up an international fund, where Beijing would be the main contributor, that would allow virus victims to petition for compensation for COVID-19-related harm.

In the meantime, individuals are still finding their own outlet to seek justice from the regime over the pandemic. The Berman Law Group said it had received an overwhelming number of offers from over 40 countries to join its lawsuit.

The law firm has since set up a global coalition of international citizens and law firms to help foreign nationals who may have viable claims against the Chinese regime in their own courts. The group will also help potential plaintiffs file claims in the United States or in an international court and help foreign nationals advocate for amendments in their countries’ laws to allow for class action.

“The Chinese Communist Party has used China’s status as a world superpower to make others bend to its whims. Now it is time for everyone to ensure that if China wants to participate in the world economy, it must answer for its continuing concealment of the origins of the virus and its inhumane facilitation of its dangerous spread into a pandemic,” the law firm said in a statement.

Hurdles

Some legal experts are not optimistic about whether any of the domestic lawsuits would prevail, saying that the plaintiffs would find themselves facing significant difficulties in defeating the hurdle of foreign sovereign immunity.

Sovereign immunity is the legal doctrine that insulates countries from being sued in other countries’ courts. In the United States, the Foreign Sovereign Immunities Act limits lawsuits against foreign nations for civil liability unless a case comes under the law’s limited list of exceptions.

Some of the lawsuits are attempting to overcome jurisdictional issues by arguing that their cases would likely meet the law’s commercial activity exception threshold. The lawyers say the commercial activity in China’s “wet markets” trade, which China initially blamed for the outbreak, has had a direct effect in the United States. But some legal experts are skeptical that it would bear fruit.

“That [exception] does require commercial activity, either here or abroad, if it’s abroad, [it needs] a direct effect in the United States or a commercial act in connection with a commercial activity that occurs in the United States,” said José Alvarez, an international law professor at New York University. “I don’t see what commercial activity they are alleging here.”

The law, Alvarez said, also requires the plaintiffs to show what assets from that commercial activity they might win in a damage suit.

“The assets have to be commercial activity assets, you can’t go around attaching Chinese Embassy bank accounts, for instance,” he said. “So there’s really several hurdles and the major one is, of course, pointing to an exception, but even if you’ve got that exception, it’s not uncommon to not be able to actually find commercial assets that you can attach.”

He also noted that these lawsuits also require plaintiffs to establish causation between the Chinese regime’s actions and the harm suffered in the United States, which may not be a simple task given that there could be intervening factors caused by the United States that could break or weaken that link.

Meanwhile, Sanders cautioned against limiting the protection of sovereign immunity for other countries in U.S. courts because it could result in blowback from China.

“It’s a double-edged sword because if you, as a sovereign, allow your state entities’ arms to reduce sovereign immunity for one country, why shouldn’t they reciprocate and reduce their protection for sovereign immunity in their own country,” Sanders said.

He added the risks attached to taking legal action against the regime include the potential for retaliation from Beijing.

“China [could] decide that you are uncooperative with me, you are an adversary to me in this area, and I’m going to affect you economically trade-wise or otherwise,” he said.

These aggressive tactics, which have been dubbed “wolf warrior” diplomacy in China, are already being observed in several places around the world as countries double down on their calls for investigations over the regime’s handling of the virus. Many of these countries are pushing back by hardening their stance and by reconsidering their manufacturing and technology dependence on China, such as Australia.

In response to calls for an independent probe, Beijing had made multiple inflammatory statements against Australia, threatening that China could boycott Australian goods. Australia’s foreign minister, Marise Payne, responded by cautioning Beijing against engaging in “economic coercion.”

Yet Beijing appeared to pay no heed. Beijing subsequently hit Australia’s key agriculture exports with suspensions and tariff threats.

Australia has responded by requesting urgent trade talks but has not backed down on its call for a CCP virus pandemic inquiry. The Chinese regime has so far denied Australia’s request.

Armstrong said even though there are significant barriers to these lawsuits, he believes they ought to be brought in order to send a message that breaking the law will not be tolerated.

“It’s right to make a claim when someone has broken the law, in order to make the point that people who break the law won’t be ignored,” Armstrong said. “And in this case, China has broken the law.”

Catherine Yang, Cathy He, and NTD reporter Kevin Hogan contributed to this report.

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