The Coronavirus Liability Craze: Holding China Accountable

Politicians, as any political class, will nurse their favourite prejudice. And when there is a crisis, those prejudices will be fanned and praised to the heavens. For some politicians, who find the whole business of lockdowns and business restrictions all too much, someone has to pay for COVID-19.

Australian Senator Malcolm Roberts takes up the theme that is being pushed by assortment of talking heads across the pandemic infested world: “Should China pay compensation for unleashing COVID19 on the world?” The answer is implicit in the question; intention and causality are assumed.

In the United States, Missouri Republican Senator Josh Hawley and New York Republican Representative Elise Stefanik introduced a bicameral resolution in March demanding a “full, international investigation”. The resolution found “that the Government of the People’s Republic of China should be held accountable for the impact, of its decision to hide the emergence and spread of COVID-19, on the lives and livelihoods of the people of the United States and other nations.” With an arrogance that tends to accompany the aggrieved, the drafters of the resolution also wished any such investigation to be led by public health officials drawn from the US and “other affected nations”. Not that any conflict of interest was at stake: the US and allies were there to lecture the PRC about matters of liability. “Simply put,” raged Congresswoman Stefanik, “China must, and will be, held accountable.”

President Donald Trump’s former deputy assistant secretary for policy and economic development is even more gung ho. “Based on China’s culpability,” writes Gavin Clarkson, “President Trump and Steven Mnuchin should immediately extract reimbursement, starting with the $1.1 trillion in US Treasury Department bonds Communist China currently holds.”

In the land of the lawsuit, courts are already being busied by claims about Chinese impropriety and bungling. A class action complaint was lodged in Florida last month “for damages suffered as a result of the Coronavirus epidemic”. The accusation: that China and its various arms of government “knew that COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up for their own economic self-interest.” Such conduct had caused “incalculable harm” and injury “and will continue to cause personal injuries and deaths, as well as other damages.”

This brings that old hoary chestnut of sovereignty into play, and even those sympathetic to the argument that Chinese officials have behaved abominably find little room to overcome it. The Foreign Immunities Act of 1976 protects, in the words of a federal court decision, “foreign sovereigns from the burdens of litigation, including the cost and aggravation of discovery.” As the well-cited Queen’s Bench case of Mighell v Sultan of Johore (1894) put it, a sovereign could never waive immunity except through submitting to the jurisdiction of the court “by appearance to a writ.”

The Florida class action suit attempts to sidestep the obstacle of sovereign immunity by claiming an exception for commercial activities and for death and harm “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his or her employment.” Another ground is even more adventurous, and one floated by Israeli-based attorney Nitsana Darshan-Leitner: the fanciful argument that China’s conduct amounted to “support for terrorism”. Deliberate concealment of “a deadly medical crisis” and concerted cover-ups were not among “the protected acts of a sovereign state or of responsible leaders.”

The neoconservative British-based Henry Jackson Society has taken an interest in the whole question of PRC liability, putting the claim in a report that China’s balance sheet of damages comes in at £3.2 trillion from G7 countries alone. “The People’s Republic of China (PRC) was bound by international law, in the form of International Health Regulations (2005), to report timely, accurate and detailed public health information.” The PRC failed to do this throughout December 2019 and January 2020. “In fact, it appears at least possible that this was a deliberate act of mendacity.” (The authors seem to cast aside those common historical tendencies: negligence through error; damage caused by complacence.) The report’s central sentiment is resentment: had the detection and sharing of accurate information taken place in good time, “the infection would not have left China.”

How this affected Britain is keenly felt. “Inadequate and inaccurate information” from the PRC hampered the UK’s response. Reliance was placed upon World Health Organization reports drawing upon faulty Chinese data claiming, at that point, that “there were no cases of medics contracting the diseases”. Much of this is undeniable, but the authors are desperate to find a guilty culprit, one who will stand up and shoulder the blame.

The report, having reduced the issue of claimed Chinese malfeasance and the pandemic to a matter of Us and Them, err on the matter of “the rules-based international system”, always cited when things do not go the way of Western industrialised states. Forgotten in such enthusiastic exhortations is the sense that such a rules-based system was imposed by the imperialist’s gun and statute book. To preserve that system “and to protect taxpayers from punitive liabilities, the world should seek to take legal action against the PRC for the breaches of international law and their consequences.”

The report fits the current mood among a good number of British Conservatives who see China as needing a good clipping, wings and all. A number of senior Tories, with former Deputy Prime Minister Damian Green leading a call, badgered Prime Minister Boris Johnson in a letter worried about the “damage to the rules-based system caused by China’s non-compliance with international treaties.” As with the Henry Jackson Society, the letter underlined those “Legally binding international healthcare regulations [that] require states to provide full information on all potential pandemics.” China, the petitioners claim, failed to abide by them, a grave omission that “allowed the disease to spread throughout with extraordinary serious consequences in terms of global health and the economy.”

Green was already ripe for persuasion, having suggested the adoption of an attitude towards the PRC “similar” to that towards Russia “in the more peaceful stages of the Cold War.” A reconsideration of relations was required. “Whatever your view of how well any Western government is handling the crisis it is clear that a deeper look at the long-term interdependence of Western capitalism and Chinese communism will take place.”

Compensation claims of this sort tread in murky waters. Historical wrongs will be revisited and Chinese responses to such accusations and urgings are already being heavily referenced by Britain’s own ruinous exploits during what is termed the “Century of Humiliation”. “Cool, great, you just pay us back for the Opium Wars,” came a Twitter comment, and not without merit. As The Economist put it in 2017, “Britain and China see each other through a narcotic haze”, but it was a haze very much forced upon China at its moment of weakness. That same year, President Xi Jinping, in an address in Hong Kong, that last outpost of British Empire, referred to a poisoned legacy that enfeebled a state. “After the Opium War, China has been repeatedly defeated by countries which were smaller and less populous.” There is little basis to assume that the PRC intends to acknowledge those, let alone be defeated by, the even smaller courts of those countries.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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