April 21, 2020

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.

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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.