Easy wave compilation
Source: Legal Search (ID: legalnews) article authorized
Yi Bo, doctor of law, associate professor of Southeast University School of law, postgraduate supervisor, visiting scholar of Cornell University School of law, visiting scholar of worsted University of technology, visiting scholar of UCLA School of law.
On April 21, 2020, Eric Schmitt, the current Attorney General of the Republican state of Missouri, represented Missouri to the Eastern District of Missouri's southeast court China novel coronavirus pneumonia (Division) filed a complaint [3] to prosecute several defendants such as [4] China government, saying the Chinese government is responsible for the massive death, illness and economic loss of the new crown pneumonia epidemic and the accumulation of personal protective equipment in Missouri and the world. [5]
(photo caption: Southeast court, Eastern District Court of Missouri, Federal District)
As the first state government in the United States to sue the Chinese government for the new crown epidemic (in addition, this case was also the first case that the U.S. state government sued the Chinese government after the establishment of diplomatic relations between China and the United States [6]) after the legal event was reported by the U.S. news media, the international law, health law, constitution and procedural law of the U.S. legal community Many experts and scholars commented on "Missouri v. China" case through news media.
As the editor is currently based in Los Angeles, California, USA, and engaged in Sino US comparative law research, he has the opportunity to use Google and Twitter's English search function to search, sort out and translate the opinions and opinions of experts in the legal field of the United States. Now, through the "legal search" wechat company, he introduces to domestic readers how the American legal field views the case.
1、 Views of American International Jurists
"I think it would also be surprising for China to find itself bound by Missouri law, just as Missouri does not want to be bound by Chinese law," chim è ne keitner, a professor of international law at the University of California, Hastings, told court news "Traditionally, such claims would be dealt with through diplomatic negotiations or international dispute settlement rather than domestic courts. Therefore, I think it is highly unlikely that we will see any judgment against China in the court of the United States. If we do, we can expect to see lawsuits against the United States in foreign courts, because our so-called policy mistakes will be a huge problem. " [7] In an interview with the associated press, Professor katner said it was unclear whether the lawsuit would have a significant impact, if any. U.S. law generally prohibits litigation against other countries, with a few exceptions. The legal problem is, it's impossible. Professor katner also told the associated press that she recently wrote a blog titled "don't take the trouble to sue China for the coronavirus" [8]; in an interview with the Washington Post, Professor katner said that she "didn't find any part of the lawsuit that could be successful under current laws". There are only a few narrow exceptions to the foreign sovereign immunity act, which prohibits litigation against foreign countries, and Professor katner said that despite the efforts of the Attorney General of Missouri to cite, she did not believe that (exceptions) would apply here. "It's clear that there are some talented lawyers in their offices, but even a talented lawyer can't rewrite the foreign sovereign immunity law," said Professor katner [9] "If the United States wants to make a claim against China, it will have to do so in an international court of justice," Professor katner said in an interview with Reuters The United States courts have no civil jurisdiction over such claims. " [10]
In an interview with Reuters, Tom Ginsburg, a professor of international law at the University of Chicago Law School, said that a legal principle called sovereign immunity provides foreign governments with broad protection from prosecution by US courts. Professor Ginsberg believes that the recent series of lawsuits against China is a political purpose of the Republican leaders facing the November election. "We see a lot of political right-wing people focusing on China to cover up the mistakes of the US government itself," he said [11]
Curtis Bradley, a professor at Duke law school and an expert on international law and public policy, told the Wall Street Journal that the lawsuits are unlikely to go too far. Most countries make it difficult for their citizens to prosecute foreign governments in domestic courts, in part to preserve their authority in foreign affairs. Professor Bradley further pointed out that although some countries allow lawsuits to be filed when foreign countries are involved in terrorism and commercial activities, American judges believe that such destructive acts must be committed in the United States if foreign governments want to bear the responsibility. Professor Bradley speculated: "these lawsuits are more symbolic value," adding that a transparent international investigation would be a better way to determine whether China should be responsible for the epidemic. [12]
Professor Ashley Deeks, an expert in international law at the University of Virginia School of law, told wsls TV news that lawsuits against other countries are usually futile because they are generally prohibited by US law, with very few exceptions. [13]
Lea brilmayer, a professor of international law at Yale Law School, told NPR: "sovereign states should not sue sovereign states, that's the problem." Professor bremaier said the case was extremely unusual and most judges would find that they had no jurisdiction over matters between a state and a sovereign state of the United States. Professor brimier believes that this is the final effort to deal with the political situation. [14]
2、 Views of American health Jurists
In an interview with the St. Louis post, Ana Santos rutschman, an assistant law professor at the center for health law research and the center for international law and comparative law at St. Louis University, said she was not optimistic about the lawsuit. "I don't think there will be any progress in this lawsuit," she said She disagreed with Schmidt on the applicability of the exception of the sovereign immunity law and pointed out that China could ignore the lawsuit. [15]
In paragraph 69 of the indictment, Missouri stated that China is obliged to report all "public health emergencies that may constitute international concern" to the World Health Organization in accordance with Article 6.1 [17] of the IHR The regulations are regarded as the source of legal obligations enforced through civil litigation, but the United States explicitly rejected this position when signing the IHR. In the statement of reservation and understanding of the IHR, the United States stated that "the provisions of the IHR do not produce private rights that can be enforced judicially", [19] therefore, even if the federal district court claims jurisdiction in some way, it is difficult to imagine that it can be implemented as a private right according to the provisions of the IHR, and the United States clearly understands that the provisions of the IHR are not regulated How can this claim be established when a private enforcement obligation is established?
"There are a lot of long-standing principles against US states implementing their foreign policies," Sam halabi, a professor of global health law at the University of Missouri School of law, told the Pittsburgh Post There are legitimate concerns about China's response to the virus, which should be investigated. But Professor Sam halabi doubts whether the lawsuit will go ahead, or whether China will send representatives to the court to deal with the case. [20]
3、 Views of American constitutional scholars
"There is no doubt that the Chinese government has the immunity to be sued in the United States," said Julian Ku, a constitutional law professor at Hofstra University, in an email to the news media "court news." it is difficult to see that the exceptions claimed by Missouri are applicable in this case. " "So I would like to say that the chances of a successful remedy in this case are not zero, but they are not very high." [21] in addition, law news website Law360 also quotes Professor Gu julen's view as follows. This lawsuit faces many judicial obstacles, the main obstacle is that the Chinese government is generally not affected by American court proceedings under American law. But Missouri has tried some interesting ways to get around the law. Professor gujuren further pointed out that one approach is that Schmidt is suing the "Communist Party of China" itself, because it does not belong to the Chinese state technically, so it may not have the right to enjoy immunity. Therefore, even if all other Chinese government entities are granted immunity, the Communist Party of China may not. [22]
In an interview with USA today, Jonathan Turley, a constitutional law professor at George Washington University, said such lawsuits are extremely difficult because China is protected by sovereign immunity. The foreign sovereign immunity act of 1976 extended full immunity to most lawsuits against foreign countries filed in the United States. These exceptions are rather narrow and rarely accepted by U.S. courts, which believe that the statute clearly expresses the intention to prevent such litigation. [23]
4、 Views of American procedural Jurists
In an interview with Bloomberg news, Anthony Sabino, a professor of law at St. John's University's Peter J. Tobin College of business, who specializes in procedural law, said the lawsuit "is likely to be dismissed soon", Professor Sabino cited the principle of sovereign immunity, which made it very difficult to successfully prosecute foreign governments, saying that "an important constitutional principle almost predestined such a lawsuit from the very beginning." "Foreign policy is the exclusive domain of the federal government, and the vast majority of foreign policy-making power belongs entirely to the president." [24]
The above is a compilation of the author's views on how the Chinese government has been sued by the US state-level government by a relatively comprehensive American jurist up to now through public news media reports.
According to the last sentence of the editor, in the case that the amendment to the foreign sovereign immunity act has not been passed by the house and Senate of the United States Congress and signed by the president of the United States, and entered into force as a law, according to the provisions of the current foreign sovereign immunity act of the United States, the U.S. state government's prosecution of the Chinese government is only a $400 [25] behavioral art and farce!
notes:
[1] According to the Missouri State Government and the attorney general's Office Web page, the state attorney general is the state prosecutor for a four-year term, elected by the people. Attorney general represents Missouri and all