COVID-19 and International Law: Must China Compensate Countries for the Damage?

The COVID-19 pandemic is wreaking human, economic, and social damage around the world. The scale of the damage has prompted arguments that China bears international legal responsibility for the pandemic and should compensate countries harmed by the outbreak. Lewis Libby and Logan A. Rank argued in The National Review that “simple justice require[s] that Beijing accept consequences facing any other wrongdoer—including an end to dangerous practices and extending at least partial compensation to those so grievously harmed outside China.” In War on the Rocks, James Kraska asserted that China violated international law on infectious diseases and, under international legal principles of state responsibility, has an obligation to make full reparation for the harm done through, among other things, compensation that could amount to trillions of dollars. At least one class action lawsuit against China has been filed in federal court seeking damages suffered from the COVID-19 pandemic.

This article addresses the argument that international law imposes an obligation on China to make reparation for COVID-19-related harms. A subsequent article will analyze whether U.S. law permits individuals to pursue tort claims against China in connection with damages associated with the pandemic.

Whether China violated international law on infectious diseases proves a complicated question, especially in light of the behavior of states during this period and the specific actions of the World Health Organization (WHO). Similarly, state practice has shown little, if any, interest in principles of state responsibility for acts alleged to be legally wrongful with respect to the transboundary movement of pathogens. The case for Chinese liability for COVID-19’s consequences seems less about international law than how the geopolitical rivalry between the United States and China has shaped the politics of this pandemic.

International Law on Infectious Diseases and State Responsibility

None of the treaties addressing the international spread of infectious diseases dating back to the nineteenth century have rules requiring payment of compensation for damage in other countries associated with violations of treaty rules. The leading contemporary treaty, the International Health Regulations (2005) (IHR), has no provisions on this issue. This situation is not unusual. Most treaties do not address whether the violation of their rules creates an obligation to compensate those states parties adversely affected by harms caused by the violation.

Customary international law on state responsibility holds that a state violating international law has “an obligation to make full reparation for the injury caused by the internationally wrong act.” This customary rule has played no discernable role in disease outbreaks over the long history of international health cooperation, even when states have argued that countries violated applicable treaties. States have not seriously pursued compensation against countries accused of breaching treaty obligations to report disease events or refrain from imposing trade or travel measures that have no scientific basis. This history should give us pause before mechanically applying the IHR and the principles of state responsibility to the COVID-19 pandemic.

States have not been keen to use customary law on state responsibility in the infectious disease context because of how political and epidemiological considerations align. Fulfilling treaty obligations to report disease outbreaks involves challenging scientific and public health questions and difficult political calculations. Pathogenic threats with the potential for cross-border spread can appear in any country. For example, although the origin of the devastating influenza pandemic of 1918-19 remains unclear, the United States is on the list of potential countries of origin. The H1N1 virus that caused an influenza pandemic in 2009 was first detected in the United States. This reality creates a shared interest among states not to litigate disease notification issues. Likewise, a state experiencing an outbreak will complain about irrational trade or travel measures other countries impose. However, next year, that same state might want to implement similar measures when another nation suffers an outbreak, which reveals reciprocal interests among states not to seek reparations for violating treaty rules on trade and travel measures.

Turning to COVID-19, arguments can be, and have been, made that China violated its IHR obligations by reporting the disease event in Wuhan to WHO when it did. However, to my knowledge, no state party has alleged that China violated its IHR notification obligations. Nor, I predict, will any government do so. As noted above, states understand that, tomorrow, the shoe could be on the other foot, which creates a collective incentive among countries to avoid being legalistic about reporting obligations. This incentive dampens desires to establish that China committed an internationally wrongful act under the IHR’s notification obligations.

We have seen the same dynamic with arguments that IHR states parties that imposed travel restrictions on China violated their treaty obligations. Yes, these measures displeased China, but it has not, and will not, pursue legal claims and seek reparation. China did not want to restrict its political flexibility when, in this or future epidemics, it wants to respond – including with travel restrictions of its own — to threats it perceives from outbreaks in other countries.

The IHR contains a dispute settlement provision, so a state party could advance legal claims that China violated the IHR and, under principles of state responsibility, has an obligation to make reparation for the damage caused by that wrongful act. However, countries have never used the dispute settlement provisions in infectious disease treaties from the nineteenth century through today — another indication that states have no interest in legal remedies in this area. In addition, arguing that China violated the IHR would have to navigate how WHO has praised China’s performance during the outbreak. WHO does not decide how states parties interpret the IHR, but the IHR itself gives WHO such prominence and authority that its actions in this context could not be ignored.

Any pursuit of a claim against China under the principles of state responsibility would also have difficulty with the causation element of those rules. The International Law Commission has explained that the causation requirement focuses on “the injury from and ascribable to the wrongful act, rather than any and all consequences flowing from an intentionally wrongful act.” Thus, whatever reparation China might owe under these principles likely does not encompass the trillions of dollars of damage associated with the outbreak. What’s more, as commentary has noted, many countries now struggling with COVID-19 had time to prepare for the pathogen’s transboundary spread after China reported its outbreak under the IHR. Under the principles of state responsibility, separating what damage is attributable to China’s delayed reporting and what harms arose because other governments botched their responses to COVID-19 would be difficult. Such causation issues also help explain why states have, historically, not pursued reparations for damage associated with alleged violations of treaties on infectious diseases.

A Pandemic in the Time of Geopolitics

Claims that China has committed internationally wrongful acts and has an obligation to compensate foreign governments form part of a feature of this pandemic that is not really about international law. The early phases of the outbreak in China triggered commentary in the United States that blamed the outbreak on the nature of China’s government, characterized by the Wall Street Journal op-ed entitled “China is the Real Sick Man of Asia.” In their National Review article, Libby and Rank connect the COVID-19 outbreak to the problems that the United States has with China, including “thefts of intellectual property, wrongful trade practices, ruthless domestic oppression, support of rogue regimes, proliferation of nuclear technology, and unlawful conduct in the South China Sea.” The Trump administration has both praised China’s response to COVID-19 and persisted in blaming China for the pandemic, with the administration now wanting a UN Security Council resolution on COVID-19 to identify China as the source of the coronavirus.

Once the United States and other democracies began to struggle with COVID-19, and as China appeared to bring its outbreak under control, the pandemic became fertile material for Chinese propaganda extolling China’s capabilities, government actions, political system, and global leadership. At the UN Security Council, China wants any resolution to praise its response to COVID-19. For its part, Russia pivoted its disinformation operations to spreading falsehoods about COVID-19 in order to exacerbate political problems the United States and other democracies are experiencing amidst the pandemic.

Since the end of the Cold War, geopolitics has not been a major feature of state behavior during outbreaks. The absence of serious balance-of-power competition during, for example, the SARS outbreak in 2003 and the H1N1 pandemic in 2009 meant that leading powers did not view responses through geopolitical lenses. The COVID-19 pandemic arose after geopolitics returned as a prominent feature of international relations over the last decade, making it the first serious global outbreak to happen in this changed context. The last pandemic that emerged during tense balance-of-power politics was HIV/AIDS, which happened during the 1980s and did not escape the U.S.-Soviet rivalry.

The most important consequences of the geopolitical aspects of the COVID-19 pandemic will appear after countries bring the outbreak under control in their territories. From a global health perspective, COVID-19 has been an extreme disaster. Health officials will convene after the crisis to evaluate what went wrong and make recommendations about how to avoid another debacle when the next dangerous pathogen appears. Reaching consensus on improvements to global health governance might be more difficult than during the halcyon years after the Cold War when states, international organizations, and non-state actors transformed international law on infectious diseases.

Editor’s Note: Readers interested in additional perspectives on the issue of China’s potential responsibility for COVID-19 pandemic-related harms, please see Just Security articles by Russell Miller and William Starshak and Chimène Keitner.

Image: In this photo taken on January 25, 2020, medical staff wearing protective clothing to protect against a previously unknown coronavirus arrive with a patient at the Wuhan Red Cross Hospital in Wuhan. – The number of confirmed deaths from a viral outbreak in China has risen to 54, with authorities in hard-hit Hubei province on January 26 reporting 13 more fatalities and 323 new cases. (Photo by HECTOR RETAMAL/AFP via Getty Images)

 

About the Author(s)

David Fidler

Adjunct Senior Fellow for Cybersecurity and Global Health at the Council on Foreign Relations; Visiting Professor of Law at Washington University in St. Louis. Follow him on Twitter (@D_P_Fidler).