COVID-19: Can the Chinese Communist Party be Made to Pay?
Watching the lunchtime news on the BBC, I noted the ever-growing list of English counties and cities moving into increasingly harsher tier restrictions and the rising daily numbers of people testing positive for and sadly dying from the disease. (see figure 1 for the overall UK situation). All this occurs against the background of two mandatory national lockdowns, numerous compulsory health measures and the near total mobilisation of the British state’s resources. In the relentless war being waged to control this virus, it is easy to forget how it started and, as a corollary, forget the question “who is responsible?”
At the end of World War One, the German delegation to the Versailles treaty “negotiations” were summoned to hear the entente powers bill for the death and destruction wrought during the war. Articles 231 and 232 of the treaty forced Germany to accept total responsibility for the outbreak of the war, enforced massive reparations and reduced Germanys military to 100,000 men. No negotiation, no discussion, little compromise by the allies, just a “take it or leave it” ultimatum. “Make Germany Pay” became a popular refrain of the time.
Figure 1: Summary of positive tests, deaths, patients admitted and virus tests in the UK as of 08/01/2021, source https://coronavirus.data.gov.uk/#
I mention this example for two reasons. Firstly, it is the nearest model I can find of how assignment of culpability for the outbreak of Covid-19 might be instituted. Secondly, there has been much talk internationally, and action by state and federal governments in the USA, to hold China responsible. The CCP’s conduct and behaviour was described as “an appalling campaign of deceit, concealment, misfeasance and inaction” by the attorney general of Missouri. Though the full history of the COVID-19 pandemic is yet to be written, even at this stage we can say the global economy has been significantly damaged, probably irreparably. Modelling by the World Bank suggests that for some countries, full recovery will not happen until 2025 or even later. Global growth projections for 2021 are 5.4 percent, meaning GDP will be 6½ percentage lower than pre COVID-19 projections for January 2020 (World Bank, 2020).
Figure 2: Proportion of economies with an annual contraction in per capita GDP from the World Bank. (World Bank 2020)
According to the World Bank, East Asian and Pacific growth is estimated to be slightly over 0.5%, South Asian economies are anticipated to contract by 2.7%, Middle East and North Africa by 4.2%, Europe and Central Asia by 4.7%, and Latin America by 7.2%. Downturns this extensive are expected to reverse years of development progress for people barely able to eke out a living, forcing tens of millions of the world’s most desperate back into extreme poverty. And then it gets worse; efforts to contain the pandemic have triggered a massive collapse in oil demand and a subsequent crash in its price as has demand for products such as rubber and platinum used extensively in vehicle construction (IMF 2020). Of course, this is just a snapshot of the economic tale of woe caused by the disease which does not consider the human cost (and continual suffering) which currently stands at 1,751,634 and 79,898,871 worldwide reported deaths and cases, respectively (JHU 2020).
Given these appalling statistics, it is little wonder that governments and world leaders are looking not only for someone to blame but also someone to sue. Despite the protestations of certain commentators to the contrary (Yu and Wien, 2020), the evidence of the CCP’s culpability and negligence is overwhelming. In the initial stages of the pandemic, it seemed as if the CCP would accept responsibility for the outbreak. They had notified the World Health Organisation (WHO) of a new SARS like cluster of infections, then published their mapping of the disease’s genetic structure and eventually agreed to allow a WHO team into Wuhan to determine how the disease was born. Yet, as the virus spread to more countries and the death toll rose, self-preservation took over and “la volte-face” began in Beijing. They silenced and harassed Wuhan Central Hospital’s Doctor Li Wenliang for warning of the outbreak, expelled American journalists whose copy was critical of the CCP’s response to Covid-19 and initiated a plethora of bizarre conspiracy theories ranging from American soldiers spread the disease in China to an alliance between Bill Gates and international freemasons. Even Norwegian salmon were not immune to the CCP’s wrath (Weinland and Zhou 2020, Scott and Marlow 2020). And what of the WHO’s team assigned to determine whether bats were solely culpable (Mallpaty 2020) and did Wuhan’s wet market create the virus or merely help transmission? (BBC 2020a; Needham 2020). Having initially approached the CCP in May 2020, they were finally allowed into China on the 14th January after unexpected visa problems were finally reconciled. And then immediately placed into two weeks quarantine before they can begin their investigation. (BBC 2021)
Assuming a definitive link to animals sold in Chinese wet markets is established, this may well provide more grist to the mill for attempts by US states to attempt litigation. But the probability of success in such actions runs into a serious impediment (in the USA) courtesy of the “Foreign Sovereign Immunities Act of 1976” which states a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the states.” However, this is subject to two caveats. Firstly, “commercial activity carried on in the United States by a foreign state” or that causes “a direct effect” there. This is enacted where the state has contractually agreed to provide some good or service and then subsequently defaults. The second is terrorism. A “foreign state shall not be immune” for claims arising from terrorism, including an “act of torture, extrajudicial killing, aircraft sabotage, hostage taking or the provision of material support or resources” to those who carry out such acts (Public Law 94-583, 1976).
Neither of these exceptions seem applicable here, but they may have better luck under 28 USC 1602 of the same act, which states “not otherwise encompassed in paragraph (2), in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and 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 office or employment;” The defence of blanket immunities for governmental officials afforded by the act has been circumvented by the filers of a class action lawsuit in a federal court in Miami, targeting the Chinese Communist Party (CCP) rather than the Chinese state itself. Missouri’s lawyers are relying on the same claim that “the Communist Party is not a foreign state or an agency or instrumentality of a foreign state and is not entitled to any form of sovereign immunity.”
This could be problematic since for the Chinese, the CCP is the state. A view reinforced by recent US case law and precedent, such as a Florida court’s ruling that the Communist Party of Cuba was an agency or instrument of the Cuban government, and TV station “China Central Television” was an instrument of China given its role as a government mouthpiece according to a New York federal court. To outflank this objection, Missouri’s former attorney general Josh Hawley introduced the “Justice for Victims of Coronavirus Act” as a means of holding the CCP responsible for the damage caused by COVID-19 by stripping China of sovereign immunity and prevents them from silencing whistle blowers or withhold critical information concerning the virus. If the Chinese press are considered a mouthpiece of the CCP, and by implication the state, pronouncements such as those from their foreign affairs spokesman and state news agency offer little hope that China will be sending its lawyers to any court any time soon.
“This kind of lawsuit has no factual or legal basis. It only invites ridicule,” said Ministry of Foreign Affairs spokesman Geng Shuang, who noted the lack of jurisdiction by U.S. courts over Chinese government actions, citing sovereign equality under international law. “Such frivolous litigation will not help the U.S. with its epidemic response, nor will it contribute to the global cooperation in this regard. The right course of action for the U.S. side is to dismiss this abusive lawsuit.” (Savage et al 2020). In a similar vein, Chinese state news agency Xinhua, not only reinforced the points made earlier regarding the CCP’s response to the pandemic but placed the blame for the high rate of infection and death toll in the USA squarely at President Trump’s door. “Until early March, U.S. President Donald Trump was still downplaying the threat of the coronavirus outbreak and comparing it to a common flu. The losses of lives and economic pain in the United States are due to their own delay and incompetence” (Xinhua 2020).
The lack of threat and credibility posed by the Missouri lawsuit is evidenced that, as of September 2020, the CCP had not responded to the charge leading to it having stalled in the US Federal court system (Margoiles 2020). If the domestic legal route is off limits, does the international system exist as an option? According to Dr. Abbas Poorhashemi, President and Scientific Director of the Canadian Institute for International Law Expertise (CIFILE) and member of the International Bar Association, three options exist. First, a motion could be filed with the International Court of Justice (ICJ), the principal judicial body of the United Nations specifically designed for the settlement of disputes between states. But, since neither China nor the United States recognizes its jurisdiction, the ICJ’s involvement is moot. Secondly, the International Criminal Court (ICC) which prosecutes international crimes such as genocide, crimes against humanity and war crimes. However, since neither China nor the United States has ratified the Rome statute which created the ICC, this would appear to be a nonstarter as well. Finally, the UN Security Council has the power to refer cases to the ICC or draft a resolution against China on the grounds of its “primary responsibility to ensure the maintenance of international peace and security.” As China is one of the UN security council’s five permanent members with a veto power, it would undoubtedly use that power to ensure such a resolution were stillborn if it were proposed either by the USA or in conjunction with other council members (Poorhashemi 2020).
Is this the right time to apportion blame? Definitely. Those responsible for a disaster which has killed millions and devastated entire countries, is right and proper, especially when the major suspects have utilised all the power of their state to sow disinformation and confusion over the pandemic’s origins. But the legal options to hold the CCP to account seem limited. Domestic lawsuits against the CCP are being ignored because US federal courts have no efficacy to bring China to account. International courts can either be checkmated by China’s enormous power within international institutions or were never intended to perform that function in the first place. Unlike the leaders of Imperial Germany at the end of World War One, the prospect of Xi Jinping and the rest of Beijing’s politburo being summoned to today’s equivalent of Versailles to hear their fate remains a halcyon dream.
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