X Close

For China, a legal reckoning is coming We need a new international treaty to deal with risks to the future of humanity

A wet market in Guilin, China (Photo by David Wong/South China Morning Post via Getty Images)

A wet market in Guilin, China (Photo by David Wong/South China Morning Post via Getty Images)


April 21, 2020   5 mins

As the scale of the coronavirus crisis becomes clear, there is more and more talk of Chinese culpability and possible reparations. A massive 71% of the British public want ministers to sue the Chinese government.

In America, meanwhile, Senator Hawley of Missouri has introduced a bill which would pave the way for coronavirus-related lawsuits in US courts against China. His Justice for Victims of Covid-19 Act would remove the immunity that China currently enjoys before US courts under international law.

This may sound like an American fantasy, but it should not be too lightly dismissed. Beijing will be watching the process closely. And although this bill is unlikely to be the right answer, some sort of legal reckoning for China is inevitable.

The Hawley proposal isn’t the first of its kind. In 2016, Congress adopted the Justice Against Sponsors of Terrorism Act (“JASTA”) to allow US courts to decide civil claims brought by families of victims against Saudi Arabia for its alleged role in the 9/11 attacks. The action did raise tensions between the US and the Kingdom, with the Saudi government threatening to dump its investments in the US, but repercussions on relations weren’t as severe as some had feared.

The political and economic consequences of a Covid-19 law, however, would be much farther-reaching — enough to make the Chinese regime sit up and listen.

First, the damages are unprecedented. Twenty million people have now filed jobless claims in America. Each one of them could become a plaintiff, alongside thousands of businesses. The Henry Jackson Society has estimated that losses for the United States will be well over $1 trillion — given the increases in public spending necessary to deal with the consequences of the pandemic. But were damages to be determined by courts, in a tsunami of private lawsuits, the total figure could end up being far in excess of that.

Second, while the US and Saudi Arabia have a close military, security and strategic partnership, the same is not true of the US and China. There is no military partnership; very little by way of security cooperation; and no shared strategic understanding. Crucially, the idea that China’s rise would be beneficial to US interests has virtually disappeared in Washington. Few today would be prepared to defend the strategic assessment behind President Clinton’s decision to let China into the WTO, namely that free trade would beget liberty and democracy.

Because of the scale of the threat, the Chinese Communist Party would be unlikely to take Senator Hawley’s legislation on the chin. There would certainly be tit-for-tat legislation, which would make the trade wars and tensions of the last few years seem like a walk in the park.

Given the chaos it could unleash, Senator Hawley’s proposal is not a good solution for either side. The US would risk putting itself on the wrong side of international law by violating sovereign immunity, and its courts would be in no position to acquire the necessary evidence. And although China’s holdings of US securities, at just over $1.5 trillion in 2018 according to the Congressional Research Service, would probably be enough to cover the potential losses, the enforcement and execution on these assets would be complex and hazardous.

The repercussions would put the clock back on US-China political and economic relations not merely to the time before the WTO, but to the time before Nixon in China.

On the other hand, doing nothing is not an option either. The Hawley bill is only one of many legal initiatives on China, the latest being a claim filed yesterday by a luxury hotel in the Italian Dolomites against China’s Ministry of Health. Some kind of legal reckoning with China is inevitable, but what form should it take?

First, an international investigation.

Before any question of compensation is assessed, the origins of the virus and the handling of the first phases of the epidemic by the Chinese authorities must be investigated. The International Health Regulations of the WHO could provide the framework.

Would the Chinese regime sign up to it? To avoid the virus being used to exploit divisions in the West, the US, Europe and Japan would have to maintain a united front. Britain and France would have to lead in Europe, and rein in the pacifying instincts of German mercantilism. A reset of relations with Russia should also be on the cards. Unwinding Nixon in China could be followed by the prospect of Trump in Moscow.

Senator Hawley’s legislation and similar initiatives in other countries may turn out to be useful here. If the Chinese Communist Party calculate that the alternative to an international enquiry would be a challenge to their economic model and a barrage of international recriminations, then they might consider an international forum in charge of establishing facts preferable to an array of foreign domestic judicial and legislative institutions. A single international dispute settlement track would lower the political temperature and allow China to fend off any immediate political and legal initiatives from individual states. Establishing facts first and talking money later may not be a bad option for China at this point.

And second, a new major international treaty.

The post-coronavirus settlement coming out of an investigation must have a larger purpose than just addressing China’s role in the coronavirus disaster. If this global pandemic resulted from some error or was avoidable, China may bear great responsibility. But let us be honest: this is a risk that the entire world failed to take seriously enough.

The Washington Post’s Josh Rogin reported that the State Department raised concerns about safety at the Wuhan Lab as early as 2015. Why wasn’t more done to address them? SARS I warned us to be vigilant, but was the international surveillance in place fit for purpose?

What’s more, epidemics are just one of a series of existential threats that arise from our interdependency and that require international action.

In The Precipice: Existential Risk and the Future of Humanity, philosopher Toby Ord calculates the chances of an existential catastrophe via a number of different natural or anthropogenic risks. According to his analysis, an ‘engineered’ pandemic, unaligned artificial intelligence or unforeseen anthropogenic risks are the most likely to cause an existential catastrophe in the next 100 years—- the chances of that happening being, respectively, 1 in 30, 1 in 10, and 1 in 30. Other well-known and yet neglected risks include antibiotic abuse. Countries that tolerate or encourage the abuse of antibiotics for human and animal consumption endanger the whole of humanity. But at present no one is holding them to account.

There is no regime of international law in force that is commensurate with the gravity of these risks. Other serious risks like climate change or nuclear weapons (each posing a 1 in 1,000 chances of existential catastrophe in Ord’s view) are covered by at least some international law, and certainly attract greater public awareness.

We need a new framework for identifying and addressing these risks. Quite aside from questions about its performance in the current epidemic, the WHO is not the right institution for this task. This is not a challenge that can be left to a specialist institution or to a body of experts. International diplomacy and domestic politics must be engaged at the highest level.

We need to aim for nothing short of a new Treaty on Risks to the Future of Humanity, with a series of Security Council resolutions to place this new framework on the strongest legal footing. Those who choose to remain outside this new legal regime – or to flout it – should no longer benefit from free trade or international cooperation.

He may have got the specifics wrong, but Senator Hawley’s instinct is right: we need new laws. China must be held to account, and we should use this opportunity to forge a new pact between nations to ensure that none is permitted to jeopardise the whole of humanity.


Guglielmo Verdirame QC is Professor of International Law at King’s College London


Join the discussion


Join like minded readers that support our journalism by becoming a paid subscriber


To join the discussion in the comments, become a paid subscriber.

Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.

Subscribe
Subscribe
Notify of
guest

30 Comments
Most Voted
Newest Oldest
Inline Feedbacks
View all comments
Paul Davies
Paul Davies
4 years ago

If you think that China would co-operate in any way shape or form with an international investigation, then you are dreaming.

eamonnfoley
eamonnfoley
4 years ago
Reply to  Paul Davies

With the right amount of force…..maybe

Giulia Khawaja
Giulia Khawaja
4 years ago

I wouldn’t hold out much hope for justice from the WHO regarding China.

Fraser Bailey
Fraser Bailey
4 years ago

‘First, an international investigation.’

Jeez – how naive can you be? Any such investigation would be stuffed with the corrupt and the incompetent, most of them anti-American. Anyway, it now seems that the corona research at the Wuhan lab was funded, ILLEGALLY, by Fauci with US tax payer’s money under the Obama administration. The fake news legacy media in the UK, and even the US, has not really reported this development yet.

Fuck off Fuck off
Fuck off Fuck off
4 years ago
Reply to  Fraser Bailey

I see the tin foil hat brigade have even infiltrated unherd!

Fraser Bailey
Fraser Bailey
4 years ago

Well it seems to be a fact that the US Public Health Institute or some such sent 3.7 million to the lab in Wuhan for corona virus research in 2015. (The US had decided that it was too dangerous, or illegal, to perform this research in the US).

Apparently, Fauci facilitated this funding, which itself was also illegal. This may explain why he evaded a question on the subject of the Wuhan Lab a few days ago. I am following all this stuff very closely on US news channels and podcasts etc.

Mark Corby
Mark Corby
4 years ago
Reply to  Fraser Bailey

It would be fascinating if this ‘synthetic plague’ turns out be a CIA planned and Fauci executed plot? Shades of the Pear Harbour set up of 1941, that some believe in?
If it is the case, it should be applauded as an act of Bismarckian audacity, for the greater good.

lozwanty9
lozwanty9
4 years ago
Reply to  Mark Corby

You want to hope this is not a Chinese rehearsal for the deadly bioweapon ,the people of China need to take there country from the CCP members .

Mark Corby
Mark Corby
4 years ago
Reply to  lozwanty9

Precisely. Although I doubt if the CCP will ‘roll over’ so easily as the USSR.
However the West should be doing everything it can to help the Chinese masses overthrow their loathsome overlords.

Dave Smith
Dave Smith
4 years ago

I am incredulous. China is never going to take the slightest notice of the West or anyone else for that matter. Why should it?
We have sent off our productive capacity to China because those who could and had the power thought it would make them very rich. Which it did for a while.
All we can do now is to try belatedly to revive our manufacturing in the West. i doubt that will worry China much now it has the whole of the world as a market. Let alone it’s rising middle class.
There is one other thing though and that is what should give the whole world pause. There are too many dead now. Both in the West and soon in the rest of the world.
That is not something that suing or whatever can erase. Perception is as always going to be all. The only question left for those who have suffered and for those devastated countries is this.
Did the virus come into our world by accident or was it deliberate.
If the former then that will bring trouble enough but if it is the latter then this world is in the most dangerous place it has been for generations. As always it will be what the people of the world thinks that will be the deciding factor

David Bardell
David Bardell
4 years ago

I doubt this whole process has any legs
But I did admire the phrase
The pacifying instincts of German Mercantilism

Dave Weeden
Dave Weeden
4 years ago
Reply to  David Bardell

Me too! Preceded by “rein in” usually used for militaristic instincts.

Mark Corby
Mark Corby
4 years ago

A wonderful idea, resonant of Cicero, but sadly completely potty!
The only thing Communist China may understand is force. They regard ‘us’ as weak and decadent, and who can blame them, after the antics of Clinton, Obama, Blair etc.?
As the late Roman Vegetius said “if you wish for peace, prepare for war”.
It may come as a shock to the ‘West’ that long years of post war hedonistic enjoyment, and self indulgence are over, but as Goethe said “nothing lasts forever”.
To conclude with, and slightly plagiarise, the words of a third and final Roman, Cato the Elder, sometimes addressed as the Censor, “China must be destroyed “!

d.tjarlz
d.tjarlz
4 years ago

Antibiotic use in animal farming *has* to come under scrutiny. But how to force compliance in the now globalised commons of human health? Where is the culture of commonality that would allow us to see and understand our interdependence?

Damien Pitt
Damien Pitt
4 years ago




Last edited 10 months ago by Damien Pitt
D Glover
D Glover
4 years ago

China owns a huge sum in US debt. What would happen if the US simply defaulted?

D Glover
D Glover
4 years ago

China holds a great deal of US debt.
What happens if the US simply defaults on it?

K N
K N
4 years ago

One area of concern that I have, not mentioned in this article is that of germ warfare. Many industrialised countries still maintain facilities to experiment on, produce and test germ agents. What’s the position of international law in cases where such experiments go wrong with devastating consequence which goes beyond the international borders of the source country?

Lindsay Gatward
Lindsay Gatward
4 years ago

Had Lockdown not been the policy destroying the economy it is unlikely a legal challenge would be considered – A depression which will kill more than the flu as history shows maybe one of the unintended consequencies of the Lockdown policy which would then be seen as the biggest self inflicted wound of all time – The total lose of life from all causes can be a universal measure of how bad this flu was compared to earlier ones, this statistic will be interesting to see and compare to Sweden if they stay on their current course?

Philippe KIEFFER
Philippe KIEFFER
4 years ago

Whilst can see an argument about compensation for deaths (negligence etc..) I am having more difficulty with the economic consequences of a general lockdown (each country making their own decisions) given that there is no consensus on the necessity, efficacy or terms of it (even on this website)? It has also been suggested that the GFC originated in the US (see Jim O’Neil @ Chatham House) and resulted in global financial contagion etc. How is that different? How is it also different from the 1,200 billion war reparations claims against Germany which remain open (as far Poland and Greece are concerned)?

John McFadyen
John McFadyen
4 years ago

Good luck with that one! I don’t disagree but I can’t see it happening without a major spat, and the Russians are cosy with the Chinese right now.

Mark Bevington
Mark Bevington
4 years ago

If we want to truly learn the lessons of Covid and minimize the risk of a repeat, picking a fight is unlikely to get us there. Who wouldn’t put a wall up against an investigating adversary? And we should be careful what we wish for: it could be any other country where the next pandemic starts. I’m reminded that the fights you come out of best are so often the ones you never get into.

Gary Miles
Gary Miles
4 years ago

I’m not sure legal action will get anywhere but change in China’s openness, processes and customs is absolutely essential.

Jerry W
Jerry W
4 years ago

Here is an alternative point of view .. it makes for difficult reading and certainly does not reflect my views, but an uncomfortable amount of it does ring true:

Bill Bolwell
Bill Bolwell
4 years ago

I am not saying SARS2 is manmade, that may be a psyop in itself.

If SARS2 was from a lab in China, then it originally came from a the USA, so that storyline goes, and it also had other countries involved. I have seen footage of Trump saying he would cut off the funding, initiated by Obama, to the Chinese Wuhan lab. So how can USA sue China, when the USA was involved in it themselves, if that where SARS2 came from?

This whole thing is psyop, of some description.

Our leaders, in democratic countries, are not supposed to be despotic tyrants, they are there to carry out the will of the people. I personally do not believe they have the right to take away our freedom.

Oliver Wright
Oliver Wright
3 years ago

Hear, hear, bloody hear!

Rex Lombardo
Rex Lombardo
4 years ago

What about the obesity and diabetes caused by the export of American fast food chains like Pizza Hut and MacDonalds that now blight all Chinese cities? Perhaps China might like to claim for all the unhealthy crap that’s come their way from the west.

Dave Weeden
Dave Weeden
4 years ago
Reply to  Rex Lombardo

Nobody’s forced to eat either of those. And say what you like about fast food from the US–at least it doesn’t contain bats.

lyvennet
lyvennet
4 years ago

Can someone please enlighten me. What exactly is China and the WHO supposed to have done wrong? I have not seen this explained anywhere and I have been looking. I have been keeping a timeline of the virus events for a couple of months or so.

3 January, 2020 China informs WHO and the US that there is an unknown virus on the loose.
On 24 January 2020 Trump Tweeted “China has been working very hard to contain the Coronavirus. The United States greatly appreciates their efforts and transparency. It will all work out well. In particular, on behalf of the American People, I want to thank President Xi!”
26 January, 2020 onwards USA, UK and others send planes to evacuate nationals for Wuhan and China generally. There can be do doubt that the virus hitched a ride.

OK so far?

March, 10.2020 The The BLAME GAME starts Trump emphatically blamed China for the coronavirus pandemic using the term “Chinese virus.” The world is paying a very big price for that they did,” Trump said, referring to his claim that Chinese officials did not fully share information sooner about the coronavirus outbreak after it began in China. “It could have been stopped right where it came from, China,” Trump said at a White House news conference. He argued that American officials would have been able to act faster if China’s government had fully shared information about the outbreak, which began around the city of Wuhan. “It would have been much better if we had known about this a number of months earlier.

Now it is head shaking time. He has had two months to do what he he thinks he should have done.

Mark Corby
Mark Corby
4 years ago
Reply to  lyvennet

It’s the countdown to the Third Opium War.
A war that has to be fought in order to decide, once and for all, who rules the planet, The West or China?
A Darwinian necessity if you like.