By Mercy A. Kuo
Trans-Pacific View author Mercy Kuo regularly engages subject-matter experts, policy practitioners, and strategic thinkers across the globe for their diverse insights into U.S. Asia policy. This conversation with Ivana Stradner, J.S.D. – Jeane Kirkpatrick Fellow at the American Enterprise Institute (AEI) and former visiting scholar at Harvard University – is the 232nd in “The Trans-Pacific View Insight Series.”
Explain if China can be sued for COVID-19 deaths and damages within the framework of international law.
After COVID-19 emerged in November, China failed to report the outbreak for nearly two months. This facilitated the virus’ spread, causing a global economic and political crisis of unforeseen proportions. Theoretically, the United States could hold China legally accountable for negligence and the committing of an internationally wrongful act. The International Health Regulations (IHR) adopted by the World Health Organization (WHO) require states to notify the WHO of events that may constitute “a public health emergency of international concern.” China similarly broke its obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stipulates a right to “the highest attainable standard of physical and mental health.” Also, China’s behavior is a threat to global security and constitutes a violation of Chapter VII of the UN Charter, which authorizes the UN Security Council to take action to “maintain or restore international peace and security.”
Is there a legal case for China to pay reparations for COVID-19’s impact on the global economy? Explain.
China’s delayed failure to inform the WHO on time violated international law. Under customary international law on state responsibility China has an obligation to make full reparation for the injury caused by the internationally wrong act. Hence, there is definitely a legal case for full reparations, for moral and material injury that would take in the form of compensation (such as monetary payment) and satisfaction (such as public apology). It will be hard to enforce those legal obligations, though, and our article suggests that instead of relying on international law, states would be better off using a self-help mechanism. For instance, the U.S. could use targeted sanctions on specific Chinese Communist Party leaders and their supporters by freezing their assets and prohibiting their travel or the U.S. can seize the assets of Chinese state-owned companies.
What type of legal defense would China employ in international court?
The WHO’s constitution allows this organization to refer cases to the International Court of Justice (ICJ) for dispute settlements. Because international disputes are adjudicated based on states’ consent, China would certainly challenge the ICJ’s jurisdiction. This is nothing new. China already employed this strategy in a landmark case with the Philippines regarding the South China Sea before the Permanent Court of Arbitration. Also, there is a nonbinding dispute resolution mechanism within the WHO where states can first seek to settle a dispute through negotiation. If negotiation fails, states may refer complaints to the WHO’s director general. However, given that Director General Tedros Adhanom Ghebreyesus has been praising China instead of criticizing its government, it is hard to imagine that the WHO will properly handle the issue.
Explain the ability to enforce compliance.
The WHO lacks the authority to enforce compliance with a judgment and this responsibility would be left to China’s domestic legal system, in a country notorious for fabricating data, spreading misinformation, and censoring its critics. Now, let’s assume that China loses this case before the ICJ and Beijing refuses to comply with its decision. A traditional international lawyer will tell you that you should not worry because the UN Charter allows the Security Council to take all necessary measures to enforce the judgment. Well, that’s correct but we should not forget that China is one of five permanent member states that can veto any such resolution.
U.S., U.K. and EU policymakers have raised the need to hold China to account for its mismanagement of COVID-19. Assess whether a legal case against China would be effective and valid.
Putting “China” and “international law” in the same sentence is an oxymoron. China respects international law only when it serves its interests, despite Beijing’s grandiose statements. Chinese President Xi Jinping said that China must “lead the reform of the global governance system with the concept of fairness and justice.” As the UN is celebrating its 75th anniversary this year, Beijing is only weakening international liberal institutions with its actions. Russia and China adopted a common Declaration on the Promotion of International Law in June 2016, when the two countries committed to respect international law. Then, a month later China lost a landmark case concerning the South China Sea against the Philippines and it refused to adhere to this ruling. A former Chinese diplomat openly said that this judgment was “nothing more than a piece of paper.” Why should we expect anything else from China in the case of the COVID-19 pandemic? Beijing has already corrupted the international legal system. The U.N. has 15 specialized agencies and China has installed its officials in top posts in four of them. Also, the WHO has been promoting Beijing’s interests during the COVID-19 pandemic and China’s ties with the WHO have to be scrutinized. I do not think that a legal case against China will be effective and states should opt for a self-help mechanism to protect their interests and punish China.
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