Sami Mahroum | Tuesday, April 21, 2020
COVID-19 has continued to be perceived as a force majeure and an ‘act of God’ despite causing tremendous losses in life and livelihoods across the globe. But this might not be the case for much longer and it shouldn’t. Lawsuits against governments are beginning to be filed. In France, six lawsuits against the government were filed, accusing it of negligence and failing to act quickly. In the US, a class-lawsuit by a conservative advocacy group has been filed against the Chinese government for conspiracy and another one by New York City residents suing the WHO. In the UK, a Conservative Thinktank posted that there are legal grounds for suing the Chinese Government for its (mis)handling of the COVID-19 outbreak.
In principle, the concept of ‘sovereign immunity‘ makes it difficult to take governments to court, but faced with public pressure, governments occasionally kowtow offering victims compensation. Smaller scale incidents of negligence have in the past been fought successfully in courts. For example, in the case of the Flint water contamination, which started in 2014 in the US and killed 12 people, victims filed several lawsuits against private companies and government agencies. The lawsuits resulted in six city officials being charged criminally – including five accused of involuntary manslaughter.
“Why should the COVID-19 global scale contamination be regarded as an ‘Act of God’ when the evidence points to governments’ failure?”
Why should the COVID-19 global scale contamination be regarded as an ‘Act of God’ when the evidence points to governments’ failure? Officials in China and Iran are said to have tried to cover up the virus outbreak after they have failed to prevent its spread in the first place. In Europe, the government in Austria has been accused of negligence and coverup in its refusal to take seriously various warnings from other countries that witnessed firsthand the virus outbreak. The list of governments accused of negligence or misinformation continues to expand.
Because ‘sovereign immunity’ protects governments from litigation, governments tend to launch their own internal investigation which sometimes results in some officials losing their jobs or going to jail. In some instances, government investigations result merely in some agencies being restructured or dissolved.
But there are two problems with this type of accountability. First, it rarely comes with financial compensation for victims outside national boundaries. The second problem is that this type of accountability has not proven to deter the recurrence of similar instances of negligence by the same government. For example, since 1957, China is said to have been the source of five major global virus outbreaks and the reason for these has almost always been traced to governmental incompetence.
“A special international instrument for accountability and compensation is now urgently needed in order to achieve global justice, greater accountability, and the reduction of risking the recurrence of similar global public health hazards in the future.”
Therefore, a special international instrument for accountability and compensation is now urgently needed in order to achieve global justice, greater accountability, and the reduction of risking the recurrence of similar global public health hazards in the future. An example of such accountability occurred with the creation of the World Trade Organization (WTO) as an instrument to resolve international trade problems. Since 1995 the WTO has handled more than 500 disputes. There also exist several multilateral institutions where litigation against sovereign governments is possible around human-rights issues. For example, there is the Court of Justice of the European Union, the Inter-American Court on Human Rights, the Inter-American Commission on Human Rights, and the UN Human Rights Committee. More recently, climate change has been the domain of a sharp increase in instances of legal action against governments with over 1000 cases handled between 1994-2019.
“Global public health issues -together with environmental issues- should form part of a ‘global bill of rights’ that are protected by international law, and would also ensure the possibility of litigation against violators.”
Admittedly, it is expected to be very difficult for state governments to reach an agreement around setting up an international court for public health justice. One has only to look at the case of setting up the International Criminal Court to infer such a conclusion. But there is evidence from climate change action against governments that even when they are unsuccessful, as they serve as effective levers to pressure governments to become more vigilant and compliant with existing legislation.
The World Health Organization (WHO), co-founded by a Chinese diplomat, is not the right vehicle for public health related litigations because it needs to keep its distance away from contention. But a special instrument for holding governments accountable for public health matters is a crucial missing element from the existing world’s governance structure. Global public health issues -together with environmental issues- should form part of a ‘global bill of rights’ that are protected by international law, and would also ensure the possibility of litigation against violators. This would help mitigate the risk of future recurrences of global pandemics and make the world a safer place.
Sami Mahroum, Professor of Innovation & Policy at the Free University of Brussels and Senior Policy Fellow at the Issam Fares Institute for Public Policy & International Affairs at the American University of Beirut.
This article is part of a new series launched by the AUB Issam Fares Institute to reflect on the impact of the #COVID-19 pandemic on various levels: the economy (global, and national), globalization, multilateralism, international cooperation, public health systems, educational system, refugee response, among other topics.
Opinions expressed in these articles are those of the author and do not necessarily reflect the views of the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut.