CCHRC’s Peter Peverelli participated in a conference on Social Governance and Global Governance under the Pandemic of the COVID-19 organised by Beihang University, Beijing, China, on November 26, 2021. The title of his contribution was: ‘Cross-cultural aspect of dealing with a pandemic’, in which he explained how culture is a determining factor in successfully dealing with the impact of COVID-19 in some nations. It was largely based on the book ‘Has China Devised a Superior Path to Wealth Creation? The Role of Secular Values’. For details, see the book’s introduction on the Publications page of this site. The conference was attended by scholars from a large number of nations.
The ICPCR was organized for the third time by the Faculty of World Studies of Tehran University on Oct. 19-20, 2001. CCHRC’s Peter Peverelli participated in a panel on the topic ‘The West’s Cold War Agenda with China’ on Oct. 19, 2021. The panel was organized by Jan Oberg of The Transnational Foundation for Peace and Future Research (TFF). Other participants in the panel were Gordon Dumoulin, a cross-cultural consultant residing in China and Thore Vestby, a former Norwegian politician. The titles of the respective contributions can be found in the illustration.
ICPCR is a valuable event on which academics from a broad range of disciplines get an opportunity to present their research on peace and conflict resolution issues without any ideological restrictions.
CCHRC is hoping to join in next year, perhaps with a broader contribution about cross-cultural human rights in general.
Peter Peverelli was interviewed by China Global Television Network (CGTN)’s most noted interviewer Liu Xin in her program To The Point of October 4, 2021. The second half of this program dealt with the statement by China’s UN Geneva representative Chen Xu. Mr. Chen proposed criticized the Western nations’ unilateral accusations against several non-Western countries regarding their human rights situation. He proposed that the UN engages in a more multi-lateral discussion. This proposition fits in with Dr. Peverelli’s research in applying the 7-Dimension model of national culture to human rights issues. During the interview, he explained that using the model, it is clear that the UN’s current ideas on human rights, including the UDHR, is strongly based on Western cultural values and therefore easily clashes with other sets of cultural values. He proposed that the world, using the UN as a platform, start fresh discussions on the definition of human rights, using national culture as the guiding model.
You can watch the interview here.
This seminar took place on September 25 in Chongqing, China. It was organised by the Human Rights Institute of the South West University of Politics and Law.
A panel of Chinese and foreign scholars looked back on the 20 years of military intervention by the US and its allies in Afghanistan. While the opinions on details varied, all delegates agreed that the intervention has been a complete failure, as none of the goals have been attained. Moreover, the intervention has caused immense suffering to the Afghan people. An interesting contribution in this respect was that of . Mr. Yogeshwar Romkhami, Former Senior Superintendent of Nepal Police who has also served as a police trainer in Afghanistan during the US occupation. His eye witness report of the endless range of US mistakes and atrocities made a deep impression.
In his contribution, that was made in cooperation with the The Transnational Foundation of Peace & Future Research (see the Friendly Link page of this site), CCHRC’s Peter Peverelli added that the grounds for the intervention, a retaliation for the 9/11 terrorist attacks, were already wrong. After 9/11, everybody in the US talked about WHO could have done it, HOW they did it and with WHAT means. The only thing never brought to the fore was: WHY would somebody want to do something like 9/11 to the United States of America? By not asking the Why question, the US positioned itself as the innocent victim of tragic violence. The fact is that the 9/11 attack targeted the US’ global finance-capital (World Trade Centre), its global military (Pentagon) and its political (White House, however not hit) centres – not a school, train station or energy facility. The significant symbolic meaning of these targets could have stimulated intellectually decent causality discussions. However, by not asking the WHY question, the intervention in Afghanistan became an act of revenge.
You can read a report on the meeting in the People’s Daily here.
CCHRC’s Peter Peverelli participated in this webinar hosted the Chinese Association for International Understanding (CAFIU), China Foundation for Human Rights Development and Friedrich-Ebert-Stiftung (FES) on March 11, 2021 during the 46th Session of the UN Human Rights Council with the theme of “Better Exchanges and Mutual Learning among Different Civilizations: A Way of Promoting Human Rights”.
The attendents formed a rich mix of people from academia, politics, NGOs and media, from various countries in Asia (China, Japan, Nepal, Sri-Lanka, India), Europe (Germany, the Netherlands), and Africa (South Africa), all sharing a common belief that a cross-cultural dialogue is necessary to promote human rights on a global level.
In his contribution, Dr. Peverelli stressed that the dialogue alone is insufficient and that humanity (the UN) will sooner or later need to renegotiate the concept of a set of ‘human rights’ acceptable by all cultures. Such definition will need to include discursive procedures to determine issues that would be regarded as violations of human rights.
The seminar has composed a declaration that will be sent to the UN.
The Dutch Minister for Primary and Secondary Education and Media, Ari Slob, has forwarded a bill concerning civic education that will be discussed in parliament on Monday. November 9, 2020. The phrasing of that bill has raised concerns among certain religious schools in the Netherlands. The CCHRC is supporting these organizations in sending a joint letter to the Minister. We are sharing the entire letter here in the original Dutch and an English translation.
Brief van bijzondere scholen over burgerschapsonderwijs
A.s. maandag behandelt de Tweede Kamer het wetsvoorstel van minister Slob waarin het burgerschapsonderwijs in het teken wordt geplaatst van de basiswaarden van de democratische rechtstaat. De invulling van die basiswaarden door minister Slob roept vragen op. Zo rekent de Onderwijsinspectie daartoe wel gelijkwaardigheid, verdraagzaamheid en democratische gezindheid, maar niet de grondwettelijke onderwijsvrijheid en vrijheid van godsdienst.
Een aantal bijzondere scholen van verschillende denominaties is hier niet gerust op. In het debat missen zij de erkenning dat bijzondere onderwijsinstellingen juist prima in staat zijn om de opdracht van het burgerschapsonderwijs in de praktijk te brengen. De religies die de inspiratie vormen voor hun onderwijs verlangen van de gelovigen dat zij zich inspannen om goede burgers te zijn: zij respecteren de overheid, komen hun juridische verplichtingen na en maken actief deel uit van de samenleving. Daarom groeien leerlingen en studenten van bijzondere instellingen uit tot tolerante en weerbare burgers die vanuit de kracht van hun identiteit een actieve en constructieve bijdrage leveren aan onze pluriforme samenleving.
Naar hun mening wordt deze positieve rol van godsdienst en bijzonder onderwijs als peilers van burgerschap in het debat wel eens uit het oog verloren. De Nederlandse Grondwet kent geen hiërarchie van rechten, dus is het niet aan de politiek om die daarin toch aan te brengen, en al helemaal niet door seculiere waarden te plaatsen boven grondrechten die religieuze minderheden beschermen. In zijn advies over het wetsvoorstel heeft de Raad van State terecht benadrukt dat het primaat ten aanzien van de invulling van de burgerschapsopdracht bij de scholen blijft liggen. Dit betekent dat de Inspectie voor het Onderwijs het toezicht op het burgerschapsonderwijs terughoudend moet verrichten en niet een eigen interpretatieve koers moet gaan varen.
De scholen hebben minister Slob dan ook bij brief gevraagd om maandag uit te spreken dat de Grondwet het uitgangspunt vormt voor de in het wetsvoorstel genoemde basiswaarden van de democratische rechtsstaat, dat de godsdienstvrijheid en onderwijsvrijheid daarvan onverkort deel uitmaken, en dat hij het vertrouwen heeft dat bijzondere onderwijsinstellingen de burgerschapsopdracht naar behoren vervullen en kunnen blijven vervullen zonder dat zij seculiere waarden in de plaats hoeven te stellen voor hun identiteit. Het Cross-cultural Human Righst Centre ondersteunt deze actie.
Letter sent by religious schools regarding civic education
This coming Monday, the Second Chamber of the Dutch Parliament will discuss the bill tabled by Education Minister Arie Slob, according to which civic education needs to serve the key values which are part of democracy and the rule of law. The way in which Minister Slob interprets these key values raises questions. Thus, the Education Inspectorate, for which he is responsible, counts equivalence, tolerance and a democratic attitude among them, but leaves out the freedom of education and the freedom of religion, despite the fact that they are guaranteed by the Dutch Constitution.
A number of religious schools of different denominations challenge this position. They argue that there is a lack of recognition of the fact that religious schools are particularly well placed to provide civic education. The religions which inspire their teaching expect their believers to act as good citizens: they have to respect the government, to obey the laws and to play an active part in society. Consequently, their pupils and students grow into tolerant and resilient citizens who contribute actively and constructively to our pluralist society while relying on their own identity.
According to the schools, those taking part in the debate tend to lose sight of the positive role played by religion and religious education as pillars of civic education. The Dutch Constitution does not put civil rights in a particular hierarchical order, so politicians are not allowed to do so instead. Consequently, secular values cannot trump civil rights which secure the position of religious minorities. In its advisory opinion regarding the bill the Council of State has rightly emphasised that it is up to the schools to determine the content of their civic education. This means that the Education Inspectorate has to show restraint in its review of civic education programs and should not replace the approach of the schools by its own interpretation.
Therefore, the schools have sent a letter to Minister Slob requesting him to express during the debate on Monday that the Constitution is the foundation of the key values of democracy and the rule of law mentioned in the bill. This definitively includes the freedom of religion and the freedom of education. They have also urged the minister to express his confidence in the ability of religious schools to provide civic education without them having to put secular values above their identity. The Cross Cultural Human Rights Centre supports this campaign.
The prestigious Li Buyun Law Prize, which is annually conferred by the legal community in China on a person who has made an eminent contribution to Chinese legal studies and legal education, has been awarded this year to Prof. Tom Zwart, the Director of the Cross-cultural Human Rights Centre at VU.
The prize has been endowed by the SIFL Institute, a private, non-profit institution devoted to the development of the rule of law in China through liberal reforms. The winner is selected by a panel of senior legal scholars and practitioners. Prof. Li Buyun, after whom the prize has been named, is a highly distinguished legal scholar who played a pioneering role at the end of the Cultural Revolution by calling for legal reform, in particular the introduction of human rights and the rule of law.
Zwart has been involved in research and teaching law, in particular human rights law, in China for almost two decades. He has taught numerous human rights classes to Chinese students. He campaigns for an active role to be played by China within the existing international human rights system to secure its future. Zwart has encouraged Chinese NGO’s to start organising side events at the UN Human Rights Council in Geneva when Chinese reports would be on the agenda, and he has taken part in many of them. Together with Chinese colleagues he has promoted the Universal Declaration of Human Rights in China by highlighting the important, but hitherto unknown, role played in its drafting process by Zhang Peng Chun, the Chinese delegate.
Zwart is also involved in attempts to remove the stigma of those living with HIV and the intellectually disabled. He has set up a project to enable Chinese Muslims to fully exercise their freedom or religion and to play an active part in Chinese society. He has started a campaign to combat terrorism with the help of Islam and the Muslim community rather than through ‘de-radicalisation’. As part of the attempts made to strengthen the rule of law in China, he is assisting in indentifying ways to prevent wrongful convictions.
Previous laureates of the Li Buyung Law Prize are Prof. Randle Edwards of Columbia Law School, Prof. Gudmundur Alfredsson, former director of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University, Prof. William Alford of Harvard Law School, Prof. Sarah Biddulp of Melbourne Law School and Prof. Albert Chen of Hong Kong University Law School.
The award will be presented during an online ceremony on 19 September. Zwart has donated the prize money to the Linfen Red Ribbon School in Shanxi Province, China, which offers an education and a home to children and teenagers with HIV.
The internet conference on Addressing Contemporary Forms of Racism: Challenges Posed by the Pandemic and the National Responses was successfully held on July 3rd, 2020. Guided by China Society for Human Rights Studies, the conference was co-hosted Central South University Human Rights Center, Cross Cultural Human Rights Centre-Vrije University Amsterdam and China Top Think Tank-Wuhan University Institute of International law. Nearly 20 experts and scholars in the field of human rights from China, the United States, the Netherlands, Germany, South Africa and other countries as well as the United Nations attended. The theme of the internet conference is to address contemporary forms of racism, the challenges posed by COVID-19. The presentations given have important theoretical significance and practical value to eliminate racism and promote inclusiveness for the international community.
In her conference statement, Professor E. Tendayi Achiume, the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance, said that we have witnessed an alarming rise in racist and xenophobic incidents directed at certain groups solely on the basis of their race, ethnicity, national origin and religion all over the world. She further calls upon international cooperation on combating COVID-19 and to ensure that the coordinated efforts contribute to a holistic concept of health and well-being, including freedom from racism and xenophobia.
The participated experts and scholars conducted in-depth discussions concerning contemporary racism issues, the challenges brought by COVID-19 pandemic and the national responses. They agreed that racism and racial discrimination were deep-rooted and that the COVID-19 pandemic had deteriorated the situation of specific racial groups. In order to effectively address the new challenges brought by racism during the COVID-19 crisis, countries are obliged to respond accordingly and positively.
Ⅰ. General Awareness of Contemporary Forms of Racism
For a long time, the international community has made great contributions to eliminate all forms of racism and to promote universal respect for human rights as well as fundamental freedoms. Systematic racism and racial discrimination, however, have existed for such a long time that the elimination of malpractices requires the concerted and coordinated efforts of all parties.
A. Contemporary forms of racism are deeply rooted
Racism and racial discrimination have been around for a long time, said Augustine Hungwe, research fellow of Cross-cultural Human Rights Centre of Vrije Universiteit Amsterdam. He explored the episteme-historical construction of African and people of African descent as racialized, inferior, dispensable “other” as a global phenomenon. He regarded key concepts, themes, schema, frameworks and paradigms to be interrogated include the problematization of the history of ideas (Hegel) and the philosophical intellectualization of race and racism by Kant, Rousseau, Voltaire, Locke and Montesquieu as a toxic racist legacy of the European Enlightenment. He pointed out that Enlightenment thinkers provided a philosophical justification for racism. In this regard, Serges Alain Djoyou Kamga, professor of Human Rights, Thabo Mbeki African Leadership Institute, University of South Africa, agreed that racial discrimination rooted in Enlightenment philosophers as John Locke supported the view that Blacks have no history and did not contribute to humanity and he found that “it took the scientific thought of the Enlightenment to create an enduring racial taxonomy and the ‘color-coded, white-over-black’ ideology with which we are familiar” today in the USA. In addition, Professor Brij Mohan, dean emeritus of the School of Social Work at Louisiana State University, spoke about the recent Floyd case in the United States, argued that poor and black families have disproportionately suffered the ravages of natural catastrophe as well as misguided social engineering in the wake of coronavirus pandemic. The Inequality Engine (Geoff Mann, LRB, 4 June, 2020:25) is, however, driven by ideologies of “poverty of culture” (Mohan, B. 2011) that sustains White Privilege, Black Plague and many systemic brutality and injustice.
B. Racism and racial discrimination is widespread and needs to be addressed urgently
At the end of May 2020, George Floyd, an African-American man in Minnesota suffered police brutality, which claimed his life and caused “Black Lives Matter” protests in many cities in the United States and beyond, attracting much attention and has become a heated discussed issue in the international community. In fact, the occurrence of racial discrimination and its rapid upsurge is not accidental but the result of a cluster of factors, the omnipresence of racial discrimination plays a fundamental role.
Experts and scholars extensively cited racial discrimination and xenophobia in various countries, and agreed that racism seriously hindered the overall pace and effectiveness of global epidemic prevention and control. Professor Tom Zwart, director of the Cross-cultural Human Rights Centre of Vrije Universiteit Amsterdam and Professor of Cross-cultural Law at Utrecht University, pointed out that the Chinese community in the Netherlands has suffered and is still suffering from racism, but members of the community have replaced and developed tactics to combat such racism at the micro level. Krish Chetty, chief researcher at the Inclusive Economic Development Division of the Human Sciences Research Council of South Africa, stated that income and wealth inequalities in South Africa largely present in terms of racial differences. The poor black working-class majority have very different lived-experiences from the wealthy whites racial group. These differences exacerbate racial tensions in South Africa. Peter Herrmann, professor at Central South University Human Rights Centre, pointed out that the murder of George Floyd had been the suffocation of a man, and also part of the killing of social spaces of society. Racism is an ultimate expression of individualism, he maintained.
Ⅱ. COVID-19 Brings Great Challenges to the Elimination of Racial Discrimination
Almost all pandemic in history has been accompanied by the prevalence of racism and xenophobia. The global outbreak of COVID-19 pandemic has become a severe test and posed great challenges to the elimination of racial discrimination.
A. COVID-19 deteriorated the situation of specific ethnic groups
Krish Chetty pointed out that the underlying cause of the inequality have roots in capitalist class system which treat people differently based on income. Opportunities for the rich are far greater and more easily accessible than those experienced by the poor. Access to food, basic services (such as water, electricity, sanitation) and justice is often delineated along racial lines. These differences and challenges have been exacerbated by the corona-virus crisis. Dr. Peng Qinxuan, associate researcher at China Top Think Tank-Wuhan University, further argued that during the COVID-19 pandemics, people of African–origins, female and senior age are disproportionately affected on the basis of their lesser health and socioeconomic status, and such disadvantage are amplified by the overlapped social categories. COVID-19 is not, as many people think, the great equalizer; it actually is an inequality amplifier and reinforces the existing racism, sexism and ageism, she concluded.
B. The erroneous remarks of some public figures and politicians contributed to racism and xenophobia
Since the outbreak, some public figures and government officials have repeatedly played up the “blame games” and “theory of virus discrimination” in public places and the media. Instead of using the scientifically endorsed name of the virus, they adopt names such as “Chinese Virus” and “Wuhan Virus” with geographic references, typically referring to its emergence in China. Given the influence of public figures, these erroneous statements that linked virus to specific regions may well serve to the spread of pre-existing racism and xenophobia as well as isolate and stigmatize specific ethnic groups, causing widespread doubt and universal condemnation in the international community.
Professor Hao Yaming of Human Rights Center at Nankai University used the term “officially-driven racial discrimination” to refer to the fact that some authorities made use of COVID-19 pandemic to promote and guide discrimination and prejudice against specific ethnic groups, so as to achieve their specific political, economic, social, cultural and even illegal purposes. Professor Sun Shiyan, researcher at the Institute of International Law of the Chinese Academy of Social Sciences, argued that as an aspect of racial discrimination and a type of hate speech, COVID-19-related racist hate speech has multiple manifestations and target groups, which not only affect many racial groups, but also may threaten international solidarity crucial to the response to the pandemic. When mainstream media are controlled by public figures to make racist remarks, the consequences are the most serious. Professor Mao Junxiang, executive director of the Central South University Human Rights Center, pointed out that the “virus discrimination” played up by state leaders and the media were the expression of racial discrimination, ethnic discrimination and other forms of discrimination in the name of freedom of speech.
III. All States Need to Engage in Coordinated Efforts to Deal with Contemporary Forms of Racism
A. Nation states should take positive measures to eliminate racial discrimination
Nation states are at the forefront to fight against the pandemic and to eliminate racial discrimination. At the critical stage of the global coordinated endeavor against COVID-19, all countries are suggested to actively take measures to eradicate all forms of racial discrimination, and to take priority in protecting the right to life and the right to health of the people, for an international community free of apartheid and racial discrimination.
Professor Mao Junxiang emphasized that in accordance with the state obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, states shall regulate the remarks on “virus discrimination” publicized by private media and take positive measures to eliminate racial discrimination within their territory. Professor Sun Shiyan seconded that states are obliged to counter COVID-19-related racist hate, on top of which, a large number of non-state actors also have an important role to play.
B. The international community should shape the value of racial equality in a right manner
“All human beings are born free and equal in dignity and rights.” Under the guidance of the Universal Declaration of Human Rights, respecting human rights and fundamental freedoms is a common aspiration that people all over the world strive to achieve. Hence, Professor Mao Junxiang called for further international cooperation to promote the formation of a constructive discourse concerning “virus discrimination”. Professor Brij Mohan stressed that a pernicious creed, belief system, breeds the “virus of injustice” that demands radical transformations to combat “the politics of pandemics”. He further argued that racial equality could only be achieved by changing people’s underlying perceptions of racism. Ding peng, PhD candidate of Wuhan University Institute for Human Rights Studies, stated that to deal with the pandemic, people need to find scientific solutions together. He further suggested that we need to reestablish the common baseline of fundamental human rights such as life, health, freedom and dignity, and advance global solidarity beyond the narrow identities of nation and country.
C. Public figures and the media should assume greater responsibility in eliminating racism
Public figures, government officials and other groups with greater influence play an important guiding role in eliminating racial discrimination and promoting racial equality and non-discrimination principles. Professor E. Tendayi Achiume stated that if public officials have no real understanding of the meaning and requirements of international human rights racial equality and non-discrimination principles, it is less likely they can fully leverage the potential of these principles. Professor Mao Junxiang emphasized that politicians and media shall bear a sense of social responsibilities to avoid spreading, dispersing or supporting racist and xenophobic statements that are not conducive to international cooperation in the fight against the COVID-19 pandemic.
D. The international human rights legal system needs to be further improved Professor Serges Alain Djoyou Kamga pointed out that we needed to take a systematic change of measures while strictly enforcing our anti-discrimination laws so that a community of shared future for mankind could be jointly built. Professor E. Tendayi Achiume noted that more substantive education in law schools and beyond on racial and xenophobic discrimination are needed, because human rights problems subject to a comprehensive international human rights legal framework. Dr. Peng Qinxuan argued that multiple discrimination is not only a mere legal concept, but a reality faced by many people. That’s why multiple discrimination gets adopted in the international legal documents and that the law could intervene and offer appropriate remedies when people suffered inequalities for one or more reasons.
Summary provided by Central South University on 25/7/2020
For news and opinions about racism, human rights and COVID-19, visit the News/opinion page of this site.
In light of the ongoing pandemic of COVID-19 where a variety of restrictive policies have been adopted in the affected regions on a scale that is unprecedented in human history, the Huazhong University of Science and Technology in Wuhan organised an international web-seminar themed “Comparison of Human Rights Values between the East and the West in Epidemic Prevention & Control” on 30 May 2020 that brought together over forty human rights experts from all over the world.
Amongst them are Professor Tom Zwart and Dr. Congrui Qiao, senior researchers at the Cross-Cultural Human Rights Centre who presented their analysis on legal actions against China that were brought overseas, and on liability of government actions, respectively.
In analysing a case of a litigation against China in Missouri, Professor Zwart, together with Professor Alexander Knoops from the University of Amsterdam, examined its legal standing in detail as well as defences applicable in the case, and argued that provided the commonly accepted elements in deciding a party’s legal standing and potential defences invokable to the defendant party, Missouri case against China and Chinese entities is unlikely to succeed.
Dr. Qiao started with measures known as ‘social distancing’ or ‘flattening the curve’ some of which are considered to be intrusive to individual freedoms and rights and refereed to a fundamental issue that deserves timely clarifications: whether and to what extent can a government be held liable for damages arising from its actions? To that end, she explained grounds for recognising government liability and factors that can suffice to establish government liability, and concluded with a hypothetical case on consequences of a lawsuit against governments’ anti-COVID-19 actions in selected legal systems.
In essence, this text is an opinion statement. However, in view of the gravity of the issue, we are placing it on the landing page of our site
On April 21st, Missouri Attorney General Eric Schmitt initiated proceedings in federal District Court against the People’s Republic of China and some of its entities, such as National Health Commission, the Chinese Academy of Sciences, and the local governments of Hubei and Wuhan. While relying on a 47-page complaint, General Schmitt is seeking recovery for the loss of life, human suffering and economic turmoil resulting from the COVID-19 virus as experienced by Missourians. According to General Schmitt, the Corona pandemic was caused by a failure to act by the Chinese authorities.
The Missouri case is one of several such cases, including class actions, which have been brought in the US against China. The state of Mississippi has since joined the Missouri case. It is unlikely to be successful for the following reasons:
First, the evidence mainly consists of US media reports which do not contain any views expressed by the Chinese side. Apart from a few Wechat messages, the complaint also does not refer to original Chinese sources. This amounts to hearsay, which is not admissible as evidence under Rule 802 of Federal Rule of Evidence.
Second, foreign states, like China, enjoy sovereign immunity in US Courts under the US Foreign Government Immunities Act and in accordance with international law. General Schmitt has tried to circumvent this bar in three ways:
1. The complaint listed the Communist Party of China as a defendant, while claiming that “the Communist Party is not an organ or political subdivision of the PRC, nor is it owned by the PRC or a political subdivision of the PRC, and thus it is not protected by sovereign immunity”.
This position is contrary to international law, according to which state immunity extends to all organs, components, and entities of the state, which, of course, also includes the Communist Party.
Furthermore, the Secretary General of the Communist Party also serves as the head of state, who by definition enjoys the protection of state immunity. The actions challenged in the Missouri complaint are all attributable, either directly or indirectly, to the President of China.
2. In addition, the complaint has invoked the commercial activities exception to sovereign immunity under the Foreign Sovereign Immunities Act 28 U.S.C. § 1605(a)(2) by claiming that the conduct which allegedly caused the pandemic was commercial in nature. These commercial activities allegedly included the operation of the Chinese healthcare system; commercial research on viruses conducted by the Wuhan Institute and the Chinese Academy of Sciences; the operation of traditional and social media platforms for commercial gain; and the production, purchasing and import and export of medical equipment.
The complaint fails to identify which specific activities performed by which entity or entities should be characterised as ‘commercial activities’ within the meaning of this provision. Instead, it limits itself to making sweeping and generalised statements and therefore it does not meet the legal requirements of § 1605(a)(2).
Since the complaint fails to identify concrete activities, it cannot be established whether these activities meet the test developed by the US Supreme Court in Verlinden B.V. v. Central Bank of Nigeria, according to which a foreign state engages in commercial activities when it exercises powers that can also be exercised by private citizens.
Missouri invokes the third clause of § 1605(a)(2) which confers jurisdiction over actions that are “based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere that causes a direct effect in the United States”. It fails to demonstrate which direct effects the activities it described in general terms may have had in the United States. In Republic of Argentina v. Weltover, the US Supreme Court stated that in order to be ‘direct’ the effect must follow as an immediate consequence of the foreign state’s activity. Missouri has not showed that the activities it listed did have direct effects in the US which could be characterised as the immediate consequences of activities performed by China or its instrumentalities. Furthermore, since all activities complained of took place within China they are covered by the Act of State doctrine, according to which states enjoy immunity for acts performed within their territory. The importance of this doctrine was recognized by the US Supreme Court in Underhill v. Hernandez, where Chief Justice Fuller for a unanimous Court stated that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”
Therefore, the Act of State doctrine provides China with immunity for all ‘commercial’ acts referred to by Missouri.
3. Finally, Missouri has invoked the tortious conduct exception laid down in § 1605(a)(5) by claiming that the activities which allegedly caused the pandemic amounted to torts occurring in the US. It has not identified any damage or loss of property which resulted from the acts that were listed in the complaint, let alone demonstrated that those occurred in the United States, to which § 1605(a)(5) is limited, according to the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp.
Third, in the unlikely case that the Court would refuse to grant China immunity, the claim would face insurmountable barriers at the merits stage. Thus, the complaint clearly interferes with US foreign policy towards China, which currently amounts to a balancing act involving highly sensitive trade negotiations, and is therefore bound to be declared a non-justiciable political question. Courts traditionally address executive decisions taken in the realm of foreign relations with deference.
Furthermore, the outbreak of the Corona virus, which was declared a Public Health Emergency of International Concern by the WHO, is covered by the defence of force majeure, or alternatively, the defences of necessity and distress, which absolve China from state responsibility.
In the meantime Republican Senator Tom Cotton (Arkansas) and Republican Representative Dan Crenshaw (Texas) have introduced legislation to amend the Foreign Government Immunities Act, which, if enacted, would deprive China of immunity in Covid-19 cases. This it would do with retroactive effect to January 1st, 2020, while it would also apply to cases which are already pending, such as the suit brought by Missouri. Congress is prohibited from passing such ex post facto laws by Article 1 § 9 of the US Constitution. In addition, even if a later act can set aside an earlier act under the lex posteriorrule, it cannot revoke the Act of State doctrine, because it has constitutional underpinnings. This was made clear by Justice Harlan for an almost unanimous US Supreme Court in Banco Nacional de Cuba v. Sabbatino. Justice Harlan emphasised that the separation of powers prescribes the immunity of foreign states for acts performed within their territory. Since the Act of State doctrine has its
basis in the Constitution, it can only be set aside or amended through a Constitutional amendment and not through an Act of Congress.
It will be clear from the above, that these initiatives will go nowhere. However, it should be borne in mind that the cases have not been brought to achieve victory in a court of law, but in the court of public opinion. They are meant to discredit China in order to draw attention away from the handling of the corona pandemic by US authorities in view of the November elections. Therefore, the cases are not part of regular litigation but of lawfare. To beat the virus, close cooperation across borders is necessary. Lawfare is not going to help.
Tom Zwart: Professor of Cross-cultural Law, Utrecht University, Director of the Cross-cultural Human Rights Centre, Vrije Universiteit Amsterdam
Qinxuan Peng: Researcher, China Top Think Tank-Wuhan University Institute of International law
2 Par. 19 of the Complaint.
3 Par. 40 of the Complaint.
4 Hoban v Sovereign Republic of Peru, 204 F. Supp. 3d 1368 (S.D. Fla. 2016); Harris v Vao Intourist, Moscow, 481 F Supp 1056 (1979, ED NY).
5 461 U.S. 480, 10 S.Ct. 1962, 76 L.Ed.2d 81 (1983).
6 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992).
7 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897).
8 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed. 2d 818 (1989).
9 E.g. Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984).
11 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed 2d 804 (1964).