Covid-19: In Defence of China’s Sovereign Immunity – Atiku M. Jafar

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Since its outbreak in Wuhan, the notorious COVID-19 has spread to become a phenomenon that exerts effect on the world on a grand scale, cutting across every facet of human endeavours and decisively affecting everything it touches. While nothing else had shaken the world in a couple of years as the novel pandemic, it is only natural that such an enormous global event would inspire a lot of responses from a lot of angles.

Interestingly, the outbreak of the COVID-19 heralds an era of landmark litigations, opening a floodgate of lawsuits brought by activists, nations and other disgruntled forces seeking to hold China liable for the deaths, untoward economic hardship and global turmoil caused by the virus. While these suits appear to be manifestly vexatious on account of lack of a watertight account on the origin of the virus or any plausible evidence that China did engineer and weaponized or negligently omitted to contain the virus, I do not want to venture into the nitty-gritty of these arguments as this is just a commentary on the propriety of the suit filed by a coalition of lawyers in Nigeria, and other similar suits elsewhere.

The class action is being fronted by Prof. Epiphany Azinge, SAN, a revered learned silk and seasoned academic I greatly respect, claiming a whopping $200 billion as damages for the “loss of lives, economic strangulation, trauma, hardship, social disorientation, mental torture and disruption of normal daily existence of people in Nigeria”. This comes amidst the spate of suits pursuing similar goals in the US, Australia, etc.

These suits, as revolutionary as they may seem, are specious in light of the unassailable doctrine of sovereign immunity within the parlance of International Law. It is an elementary principle of law that sovereign nations are immune from legal proceedings in another’s own court, and this doctrine is a huge barrier to the liability of governments to foreign judicial oversight. This doctrine was enunciated from the time when it appeared to be an affront to national sovereignty for a sovereign state to be a subject of judicial control of another. The obvious logic behind this rule is that if allowed, it would open a Pandora’s box allowing nations, using their courts, to hold one another liable for alleged misdeeds.

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The forces behind the suit before the Federal High Court of Nigeria ought to have given some thoughts to the fact that China, being a sovereign state, is shielded with immunity from actions in the court of any other nation. Even though various laws place substantial exceptions to this general rule, this case is not a just exception given that prevention and control of the COVID-19 falls squarely within the sovereign governmental affairs of China (acts jure imperri), and not a contractual obligation (acts jure gestions) that would scale the test of immunity.

The nascent argument making a case for waiver will not stand, as the rule of sovereign immunity is not a favour nations do for their sovereign equals. It’s based on a shared reciprocal understanding that we will not allow our people to sue you if you will not allow yours to sue us.

The immunity doctrine is hinged on the principle of sovereign equality, often expressed by the maxim “par in parem non habet imperium”, to wit: equals have no sovereignty over each other. After landmark articulations of this doctrine in judicial decisions, conscious attempts to provide legislative flavour to the doctrine followed suit, hence international instruments such as the European Convention on State Immunity 1972, the United Nations Convention on the Jurisdictional Immunities of States and their Property 2004 (the New York Convention) were re-echoed by national legislations such as the United States’ Foreign Sovereign Immunities Act 1976, Britain’s State Immunity Act 1979, the Canadian State Immunity Act 1982, among others.

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The doctrine is broad; so broad that the United States’ Supreme Court interpreted the Foreign Sovereign Immunities Act to rule in favour of Nigeria in Verlinden B.V v. Central Bank of Nigeria that foreign countries need not even respond to complaints before US courts.

While it is undisputed that the sovereign immunity doctrine is not absolute, it follows that the suit filed by the learned silk should be reconsidered against the weight of the avalanche of arguments in favour of China’s immunity. Not even the point that the laws in support of sovereign immunity are foreign laws or international treaties not binding on Nigeria will stand, as the case for immunity of states has evolved as a robust, impenetrable principle of customary international law, barring foreign impairment of state sovereign prerogatives. The most honourable thing in the circumstance is for the learned silk to withdraw the suit and, if he has to, explore other remedies through the International Court of Justice.

Atiku is a legal researcher and a past National President of the Law Students’ Association of Nigeria. He can be reached on amjafar01@gmail.com

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