Revisiting the concept of Foreign Sovereign Immunity: Can an Indian Citizen sue China?
Foreign Sovereign Immunity or State immunity, (not to be confused with sovereign immunity or the king can do no wrong doctrine) is a concept of international law which is concerned with the protection of a state from being sued in the court of law of a foreign land. The necessity to revamp this concept amidst the COVID-19 crisis has been made the subject matter of a letter written to Prime Minister Narendra Modi by the All India Bar Association. The lawyers collective seek amendments to be made to Section 86 of the Code of Civil Procedure 1908 which deals with the concept of State Immunity in India. The plea raised through the letter aims to carve a way of direct redressal to those financially and emotionally affected by the hands of the COVID-19 virus which took birth in China. In the matter of foreign state immunity, our country stands at a crossroads without any dedicated legislation and signatory to a non-enforced UN Convention that carries a mere persuasive value in municipal courts without ratification. It is the independence and the progressive interpretations of our judiciary that makes the immunity granted to foreign states in our country non-absolute in nature. However, the issue that this paper address is whether a separate legislation/an amendment to existing laws enough to bring a remedy seeker to justice in the existing scenario?
The doctrine of foreign sovereign immunity in India: Par in parem non habet imperium
The above maxim literally translates to “equals have no sovereignty over each other” and is a general principle of international law. Pertaining to the growth of international trade and commerce, countries realized that the age-old concept of absolute state immunity was causing hindrance in the expansion of free trade, which led to the birth of the restrictive theory of state immunity. The theory basically grants immunity to foreign states from the jurisdiction of local courts, but only in certain circumstances. More specifically, the theory makes a distinction between acts of a sovereign nature (Jure Imperii) and acts of commercial nature (Jure gestionis). It was not until the year 2004 that the theory received codification on the international platform with the introduction of the United Nations Convention on the Jurisdictional Immunities of the States and their Property.
The current policy of foreign state immunity in India is embedded in our legal system through Section 86 of CPC. The provision says that except for the prior consent of the Central Government, another sovereign state cannot be legally sued in an Indian court of law. It is upon the discretion of the central government whether to grant their consent or not, which ultimately depends on the facts and circumstances of each case. India’s approach towards state immunity is not purely restrictive, but non-absolute at best. Our non-absolutist stance is well brought forth through the 2011 Supreme Court judgment in the case of Ethiopian Airlines v. Ganesh Narain Saboo[i]. It was the progressive observation of the Apex Court that laid down that Section 86 of the CPC provides no explicit obligations as to commercial and contractual disputes and henceforth, such disputes are in no requirement of sovereign immunity. The decision opened gates of relief for those seeking compensation against foreign states in commercial and contractual disputes.
Although the judgment indicates a willingness to a stance with the international view of restrictive state immunity, a major aspect that is still missing from the purview of our judiciary and legislative is that whether tortious acts committed by a foreign sovereign qualify to be granted sovereign immunity. Article 12 of the above UN Convention specifically talks about claims regarding personal injuries and damages to property. It allows individuals to seek pecuniary damages against states if the act is attributable to the particular state. However, since India is merely a signatory to this UN Convention, in addition to it being non-enforceable to this date, the said provision is nothing but a showcase arsenal.
The Conflict of laws in case of a possible future conflict: How a legal proceeding against China is likely to play out?
In contrast to the popular global trend towards the restrictive state immunity theory, the People’s Republic of China has chosen to firmly stick to their absolutist view. The absolute immunity approach grants China immunity from the jurisdiction of a domestic court of a foreign state. Given the existing non-absolutist approach towards state immunity in India, a legal proceeding, even with the consent of the Indian Government, is very likely to end up being inconclusive.
- Which laws will apply?
The concept of state immunity is one of the international law domain, however, the application of the law depends on the national law of the country or, the law of the forum. Consequently, if China were to be sued in a domestic court of our country, it is of no dispute that the proceedings will follow the Indian statutes. However, given the nature of the conflict, it is not merely the battle of jurisdiction that is of paramount importance. One will only be able to achieve a Pyrrhic victory if they stick to the battle of jurisdiction and not pay heed to the battle of enforcement of the order passed by the domestic court. Hence, we shall look at the issue holistically and then analyze it accordingly.
- From the battle of jurisdiction to the enforceability of an order
In continuation of our initial hypothetical proceeding in the existing scenario of laws, an Indian citizen will only be able to bring a legal proceeding against the Government of China, with the consent of the Indian Government. Further, due to a lack of recognition of including tortious acts as an exception to state immunity, such proceeding can only be brought in matters of commercial and contractual disputes. However, pertaining to our non-absolutist view, the initiation of such proceedings is absolutely possible provided the Government of India grants their consent for the same. Hence, given the appropriate circumstances, the municipal courts of India do in fact enjoy jurisdiction over the People’s Republic of China.
The second question that arises is whether an Indian Court of law compels the appearance of the Chinese government by way of issuing summons? The proper channel through which summons are issued when compelling the appearance of parties living in a foreign country is through the means of the Hague Service Convention. The convention, to which both India and China are signatory, came into existence to provide a reliable way of serving summons to foreign citizens for compelling their appearance in a domestic court. However, Article 13 of the Hague Convention provides a way for the refusal of an issued summon if it deems that the compliance of it would infringe the sovereignty or security of the served State. In such a scenario, China’s firm absolutist stance gives them complete immunity and the ability to make use of this provision in their favor and legally refuse to appear in a foreign court of law. The only way to penetrate China’s immunity is if they voluntarily choose to waive from it, which is highly unlikely to happen.
Finally, considering that the case reaches its final stages and an order is passed against the Chinese Government, their Civil Procedure Code comes in the way. Article 268 of the Civil Procedure Law of the People’s Republic of China clearly states that a judgment by a foreign court will not enforceable in China if it violates the basic principles of the law of the People’s Republic of China or violates State sovereignty, security and social and public interest of the country. Yet again the absolute immunity of China comes into the picture to prevent any such judgment or order from being enforced in their country.
Hence, in the permutation of laws that exist in the world today, there is no foreign domestic court that can oblige China to enforce an order or a decree passed by it, unless China chooses to waiver from their absolute immunity stance.
Suggestions and Conclusion
USA is one of the few countries where a legal proceeding against China has already been initiated for tortious damages suffered as a result of the COVID-19 pandemic.[ii] The United States is a country with one of the earliest dedicated legislation regarding foreign sovereign immunity (Foreign Sovereign Immunity Act, 1976), which was the legislation used to bring the aforementioned legal proceeding to life. However, as China has done numerous times before in a proceeding initiated against it in the USA, they simply refuse to appear in the proceedings of the court. Even after having proper legislation in place, it is still difficult and unlikely for remedy-seekers in the USA to get compensated in their case against China.
The world today is at a stage of witnessing a catastrophe at the hands of the COVID-19 virus. A pandemic that has shaken everyone to their core, affecting millions of lives and livelihoods. Amidst this chaos, the affected people are seeking justice and remedy through whatever means that are at their disposal and it is the duty of the International Organizations to provide these people with means to justice that actually compensates them in the end. There have been reports with alleged proof that China in collusion with WHO might have withheld the information regarding the drastic nature of this virus which could have potentially saved the lives of thousands of people. If these reports are proven to be true in the future, it would be the right of every individual who has suffered losses due to this pandemic to claim damages from China for the same. Unless international obligations are enforced upon China, initiating legal proceedings against them in domestic courts will be of no use as there is a huge possibility that the victims will be forced to return empty-handed. Through the way of international treaties and conventions, a mechanism to pierce this veil of absolute immunity needs to be developed so that China cannot hide behind it for eternity. If found guilty, then they must pay for the same.
[i] Ethiopian Airlines v. Ganesh Narain Saboo, (2011) 8 SCC 539
[ii] ALTERS et al v. PEOPLE’S REPUBLIC OF CHINA et al, US District Court for the Southern District of Florida, 1:2020cv21108, March 12, 2020