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China’s Responsibility for the Covid-19 Crisis – Should we be cautious about pursuing it through the courts? – Nick Kenny

China’s Responsibility for the Covid-19 Crisis – Should we be cautious about pursuing it through the courts? – Nick Kenny

Nick Kenny holds a master’s degree from the University of Oxford, and is now studying at the University of Law in LondonThe UK is approaching 40,000 deaths, the USA has passed 100,000, and the world has reached the 350,000 mark. Recession and severe economic downturn seem inevitable, if not already here. Individuals and leaders have been looking for someone to hold responsible, and around the world blame has quickly attached to our governments whose policies are affecting our lives so radically.

In turn these governments have sometimes sought to shift the blame elsewhere. In the United States, the Trump administration has been quick to brand Covid-19 the ‘Chinese virus’, laying responsibility at the door of their geopolitical opponent. Is there any legal basis by which this blame game can be played out, and could it result in meaningful compensation for this terrible loss?

Various commentators have in recent months been suggesting that China may have some responsibility, under international law, for the crisis the world is suffering. There seems to be some evidence that China may have, in the early days of the virus, under-played or under-reported its danger, even repressing those who raised the alarm. Oft-cited has been the case of Li Wenliang, a Wuhan-based doctor based who, after voicing concerns about the new virus online, was forced by the police to retract his statements and acknowledge he had ‘severely disturbed the social order’. He sadly died in early February, and his family have since received an apology from the Chinese Communist Party.

Others allege there is further evidence of a wilful failure on China’s part to properly report the virus. It seemingly withheld information from the World Health Organization (WHO), while delaying information about human-human transmission and waiting until February 14th to announce the infection of 1,700 healthcare workers. The latest example is the disappearance of Chen Qiushi, an activist who had been publishing reports detailing and criticising the Chinese government’s response. He was last heard from on February 6th, and to this date his whereabouts and condition remain unknown.

What might have been the effect of this delay? As always, it is difficult to work out the counter-factual, but a model from the University of Southampton suggested that if China had taken stronger measures one, two, or three weeks earlier the number of cases might have reduced by 66%, 86%, and 95% respectively.

Yet, even should these failures be proven on the facts – which the Chinese government would surely dispute vigorously – could there be any legal remedy against the Chinese government?

There do seem to be some rules of international law that China may have breached. First, let us return to 2005 and the aftermath of the SARS epidemic, which claimed 774 lives from 2002-2004. Under international pressure China accepted, along with the other WHO members, the revised International Health Regulations (IHR), a binding treaty designed to prevent another similar outbreak.

Under Article 6 of the IHR, China has an obligation to notify the WHO of a potential ‘public health emergency of international concern’ within 24 hours, and to continue sharing with the WHO timely and accurate information about it. Under Article 7, if it has evidence of an unexpected public health event within its borders that might constitute a ‘public health emergency of international concern’, it must promptly inform the WHO.

On the evidence as we have it, it seems likely that China has not fully complied with these obligations, especially in the first few weeks of January. As Professor John Mackenzie, adviser to the WHO emergency committee, told the FT:

“there must have been more cases happening that we weren’t being told about … I think there was a period of very poor reporting, or very poor communication … There was a period there, I think had [Beijing] been a bit stronger earlier on, they might have been able to restrict the number of cases not only in China but also overseas.”

However, even if there is a case for the breach of these obligations, how could such a lawsuit be pursued? The IHR themselves have a dispute-resolution mechanism under Article 56, whereby the parties may submit to arbitration to resolve the problem. However, the chances that China would be willing to consent to such arbitration seem slim.

There is also some possibility that China’s alleged failings could be pursued at the International Court of Justice (ICJ), as one writer, Peter Tzeng, has suggested. Article 75 of the WHO Constitution stipulates that any dispute about its interpretation or application may be submitted to the ICJ. Can a case be made that China has breached any part of this Constitution?

It is possible that China’s alleged delay in reporting the virus may engage Articles 63 and 64 of the Constitution. The former requires that states communicate promptly to the WHO any official reports pertaining to health published in the state, and the latter requires it to ‘provide statistical and epidemiological reports in a manner to be determined by the Health Assembly’. The problem is, Article 63 only creates an obligation to communicate reports that are ‘published’, yet the main allegations are precisely that the Chinese government failed to publish this information in the first place.

There would be similar difficulties in arguing a breach of Article 64. The ‘manner’ in which these reports are to be communicated under Article 64 has been expressly stated by the Health Assembly to be the Nomenclature Regulations (Article 6 Nomenclature Regulations), not the IHR. Perhaps it could be argued that the reporting requirements of the IHR impliedly fall under the remit of Article 64, but it would be difficult to thread that needle.

If we move beyond international law, there may be the possibility China could be pursued in domestic litigation, as a report from the Henry Jackson Society has claimed. Broadly speaking, states are immune from claims in domestic courts under the principle known as ‘state immunity’. In the UK the State Immunity Act 1978 does contain certain exceptions whereby a state’s immunity will be lifted, generally for wrongs committed on UK territory, but it would be difficult to fit a claim against China for its coronavirus response into this.

Meanwhile, in the United States a claim has already been filed in the Florida courts against China for alleged mishandling of the crisis. This claim attempts to get around the US’s own ‘state immunity’ law, the Foreign Sovereign Immunities Act (FSIA), by arguing that there is an exception in that act for commercial activities, but it seems doubtful whether this will work.

However, there is some hope for such a suit from the recent past. In 2016, so as to allow claims against foreign states accused of sponsoring terrorism, Congress passed the Justice Against Sponsors of Terrorism Act, which narrowed ‘state immunity’ in US courts so countries alleged to have sponsored terrorism, like Saudi Arabia, could be sued. Perhaps Congress would be willing to do this again and lift China’s state immunity here, but this is far from its priorities for the moment, and will probably stay that way for a while.

Even if these international or domestic courts did agree to give such lawsuits a substantive hearing, it seems highly unlikely China would abide by any judgment requiring it to pay out. We can compare here what happened in 2016, when China was found by an arbitral tribunal to have breached the United Nations Convention on the law of the Sea (UNCLOS). The case was brought by the Philippines, who were disgruntled at China’s expansive claims over swathes of the South China Sea. In 2016 the tribunal made an unequivocal ruling in favour of the Philippines, but China has flatly refused to acknowledge or abide by the decision to date.

Indeed, this is the general problem with most of the legal avenues discussed above. A fundamental issue with international law is that there is no stringent enforcement method when states are found to have committed some wrongdoing. It usually rests on countries’ good behaviour, plus diplomatic pressure when other states are willing to apply it. As China’s disregard for the UNCLOS arbitral award shows, there can be few consequences when a country as diplomatically powerful as China wishes to ignore inconvenient judgments.

There is one further remedy countries could impose on China, however. Should a case manage to reach somewhere like the ICJ, and should an order for compensation be awarded that China disregards, states have the final remedy of ‘self-help’. This is the principle under international law that injured states may, should another state be in breach of an international law obligation (like failing to comply with a judgment of the ICJ), suspend its own legal obligations towards the offending party (Article 49 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)). Such countermeasures may not breach human rights or humanitarian obligations, or take the form of a threat of force (Article 50 ARSIWA). Most other measures are ‘fair game’, however.

Should they wish, then, countries could therefore suspend their obligations under the World Trade Organization towards China, or even, as one commentator suggests, broadcast Western media or the mistakes of the CCP in China.

This would clearly be a drastic move, and would rest on the strength of the diplomatic and political ‘backbone’ of other countries to take these steps towards China. It remains to be seen whether any country would be willing to be so confrontational towards its political and military might.

Perhaps this would nevertheless be possible, however, and perhaps it might force China to pay out to those who have suffered so terribly from this virus. However, it would be a long and tortuous process, taking many years to bring a suit to an international judicial forum, prove the case on the facts, and then successfully enforce the judgment. Stepping back from the legal basis of such a challenge, therefore – would it be a good idea?

Even if a state confident enough to bring such a case could be found and it proceeded to a substantive hearing, the factual arguments would be highly contentious and politically explosive. Though few disagree that a sober analysis of what went wrong in the global response, and how we can improve in the future, would be valuable, it seems doubtful that the contentious space of a courtroom would be the best place to do this. China would no doubt dispute the facts energetically and aggressively. Therefore, proving that China has breached its international legal obligations may turn out to be more trouble than it is worth.

It would also only be possible to claim compensation for loss that China’s breaches had caused. In the Bosnian genocide case the ICJ stressed that an injured state must show a ‘sufficiently direct and certain causal nexus’ between the breach and its own loss before being able to claim compensation. Determining quite how far global suffering can be said, in this legal sense, to have been ‘caused’ by China’s alleged failings would be a herculean challenge.

In arguing these issues in court, China would inevitably use the opportunity to publicise what this endeavour may have aimed to avoid in the first place: other governments’ culpability for Covid-19 suffering. Part of the purpose of bringing China to court would be to put blame at their door. However, the factual arguments, in determining whether other countries’ losses were caused by China’s failures in the virus’ early stages, would surely bring out the vital question: how effective were other countries’ responses to Covid-19?

In the realm of policy responses to the crisis, no country is wholly blameless. Every state can likely have some of its decisions criticised. Having, it seems, successfully controlled the virus, China has in recent weeks seen a dramatic increase in cases imported from other countries that have seen less success. Therefore, if states started suing China for their Covid-19-related losses, China could see it as an open invitation to do the same. It might argue that, if other countries had controlled the virus better, Chinese citizens would have suffered less as well.

In other words, once the door is open to such lawsuits, the allegations could go both ways. This is surely not what any actor on the international stage wants. Adding fuel to the fire of a fractious international order in the crisis’ aftermath would not be in anyone’s interests.

The same goes for the outcome if a judicial award for compensation were, against all the odds, obtained against China. Given its history with the 2016 UNCLOS award in the Philippines case, it seems doubtful it would abide by such an order, meaning other states may have to resort to suspending their own obligations towards China to bring it to ‘justice’.

Would this be a good idea, however? To have effect, such measures would need to seriously harm China’s political or economic interests, such as suspending trade obligations towards it. However, these measures would of course harm the rest of the world that relies on supply-chains passing through, or originating in, China. China would also probably take reciprocal measures in response, causing even further global harm.

Overall, this would most likely isolate China while driving a wedge in the international order at a time, in the crisis’ aftermath, when greater co-operation and negotiation would surely be needed.  The irony is that pursuing the strict application of international law could lead to the very thing international law was designed to prevent – namely the fracturing of the international order and decline in global co-operation.

Perhaps, then, it would be best to pursue remedies for the enormous suffering and loss from this crisis in the diplomatic, rather than the legal, sphere. Certainly, any state thinking of pursuing China in international judicial fora should think very hard about the path it is choosing. Though they may have good legal grounds, the practicalities involved, along with the damage such a route could do to international relations, should not be taken lightly. As in every legal issue, the different sides must be balanced carefully before any decision is made.

Nick Kenny

 

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