Could China face legal action over coronavirus crisis?

Kim Sengupta, The Independent

The relentless spread of coronavirus has been accompanied by calls for China‘s government to pay reparations for hiding the start of disease, a fatal delay, say critics, which allowed the outbreak to spread with such devastating human and economic cost across the world.

There are currently around ten law suits lodged against Beijing ranging from groups of private companies in Europe and the US, to states like Missouri and Mississippi. There are reports other cases are likely to follow.

Opinion polls in a number of countries show that people blame the Chinese Government for the pandemic, with the accompanying demand that there is some form of restitution. In the UK, according to a recent survey, 71 per cent of those asked said they wanted the British government to take legal action against the Chinese government. There have also been calls for such steps – and a fundamental review of relations with Beijing – by a number of conservative politicians including former ministers.

The allegation against the Chinese Communist Party is that its culpability runs not only to suppressing information about the start of the virus in Wuhan, and persecuting whistleblowers, but continuing subterfuge about the numbers of victims of the virus and making false claims that it originated in Europe and the US.

Whether any successful litigation can be pursued is, however, another matter entirely. It is also a matter of doubt whether Beijing would accept a verdict by an international court. China adopted a Declaration on the Promotion of International Law in June 2016 – but when it lost a landmark case over a territorial dispute in the South China Sea against the Philippines a month later, it simply ignored the judgment. A senior former Chinese diplomat dismissed it as “nothing more than a piece of paper” and, indeed, there was no means of enforcing the ruling apart from through military action.

Six of the lawsuits relating to COVID-19 against China are in the US. Republican Senator Josh Hawley, from Missouri, has introduced the Justice for Victims of Coronavirus Act to strip China of sovereign immunity for prosecution, and create a task force in the state department to investigate Beijing’s handling of the disease and secure compensation from the Chinese government.

The hurdles coronavirus related litigations faces is that foreign governments enjoy immunity from action in American courts under the Foreign Sovereign Immunities Act, a 1976 statute which codified the principle that sovereign states may not be sued in courts of other countries. Proving damage intentionally caused by a pandemic is, say jurists, especially hard to prove.

John B Bellinger III, a senior fellow in international and security law at the Council of Foreign Relations and a former legal advisor to the state department, has examined the claims that the COVID-19 class actions circumvent the Sovereign Immunities Act as it focuses commercial offences taking place in the US. He concluded however: “These arguments are likely to fail because there is no evidence that China committed deliberately wrongful acts in the United States or that COVID-19 arose from China’s commercial activities here.”

Is the Chinese government culpable for compensation for being in breach of international treaties? David Fidler, a professor at Indiana University School of Law and an authority on law and infectious diseases, has said: “None of the treaties addressing the international spread of infectious diseases dating back to the 19th Century have rules requiring payment of compensation for damage in other countries. The leasing contemporary treaty, International Health Regulations (IHR: 2005) has no provisions on this issue.”

Nation states have traditionally disinclined to pursue law on state responsibility for infectious diseases because, Fidler has said, fulfilling treaty obligations “involves challenging scientific and public health questions and difficult political calculations”.

Pandemics have originated in a number of countries in the past. Fidler points out, for instance, that although the source of the devastating influenza outbreak of 1918-19 remains unclear, the US is on the list of potential countries of origin. Another deadly influenza spread, The H1N1 virus, in 2009, was first detected in the US. “This reality creates a shared interest among states not to litigate disease notification issues”, Fidler said.

Arguments have been made that China violated its IHR obligations by delaying in informing the World Health Organisation (WHO) about COVID-19. “However, to my knowledge, no state party has alleged that China violated its IHR obligations,” Fidler said. “Nor, I predict, will any government do so ... States understand that, tomorrow, the shoe could be on the other foot.”

WHO, with many in its current senior management, led by its director general, Tedros Adhanom Ghebreyesus, has gone to extraordinary lengths not to criticise China over the crisis. And it is highly unlikely to change its stance and say that Beijing did not notify it in time about the disease.

It is also true that no government has made a formal complaint against China, although individual politicians have done so in a number of countries. Four former British cabinet ministers – Damian Green, Iain Duncan Smith, David Davis and Owen Patterson – and 11 other Conservative MPs wrote a letter which stated: “The damage to the rules-based system caused by China’s non-compliance with international treaties ... This omission allowed the disease to spread throughout the world with extraordinarily serious consequences in terms of global health and the economy. The cost to the UK may be ... over £350bn.” The letter was in conjunction with a report by the think-tank, the Henry Jackson society, which advocated that Britain and other states should pursue China to pay reparations.

It is ironic that Conservative politicians and commentators in Britain are so hawkish in their current antipathy towards Beijing. Successive Conservative governments, under David Cameron, Theresa May and now Boris Johnson have avidly courted China for trade and ignored its transgressions on many occasions. This has become particularly noticeable in the desperate search for business after Brexit.

The most recent example of this has been letting Huawei into the UK’s 5G network despite the opposition of the US and other allies including Australia. Beijing made it clear during the debate on the issue that barring the Chinese telecommunications giant would have trade ramifications.

Was a blind eye even possibly turned to the risk of pandemic from China when May visited Wuhan, in the drive for post-Brexit trade with China? The then prime minister also went to Beijing and Shanghai on the trip. But the South China Morning Post noted: “Wuhan’s inclusion on Ms May’s itinerary seems surprising. The city rarely has been a destination for foreign visitors.”

It is what the US administration does which will be of real concern to Beijing. Donald Trump, not for the first time in a major crisis, has both blamed Beijing for the pandemic, and praised its handling of it.

But facing an election with a shattered economy and mounting criticism of his handling of the coronavirus outbreak, it may seek to blame an external “enemy” and take the step of formally accusing China of breaching its treaty obligations.

The US administration wants a UN Security Council resolution identifying China as the source of coronavirus. Beijing claims that the Security Council has no mandate to follow this course. A resolution may well be vetoed by China and Russia, but the issue is now on the table – with the US delegation showing no sign of backing down.

Meanwhile, Washington could impose targeted sanctions on specific Chinese Communist Party leaders and their associates by freezing their financial assets and the assets of Chinese state-owned companies. Such punitive action has been used against a range of countries from Russia to Iran and Venezuela.