I’ve been thinking about this for some time but James Kraska has put it into words at War on the Rocks. The hugest liability suit (or group of suits) in the history of the world is now inevitable and China will be the defendant. After explaining the nature of the deliberate misconduct he goes on to explain the liability:
While China’s intentional conduct is wrongful, is it unlawful? If so, do other states have a legal remedy? Under Article 1 of the International Law Commission’s 2001 Responsibility of States for Internationally Wrongful Acts, states are responsible for their internationally wrongful acts. This commission’s restatement of the law of state responsibility was developed with the input of states to reflect a fundamental principle of international customary law, which binds all nations. “Wrongful acts” are those that are “attributable to the state” and that “constitute a breach of an international obligation” (Article 2). Conduct is attributable to the state when it is an act of state through the executive, legislative, or judicial functions of the central government (Article 4). While China’s failures began at the local level, they quickly spread throughout China’s government, all the way up to Xi Jinping, the general secretary of the Chinese Communist Party. He is now being pilloried by Chinese netizens for his failures of action and inaction. The most prominent critic, Chinese tycoon Ren Zhiqiang, lambasted Xi for his mishandling of the coronavirus, calling him a “power hungry clown.” Ren soon disappeared.
Responsibility flows from local Wuhan authorities to Xi himself, which are all organs of the state of China, and whose conduct is therefore attributable to China. An “organ of the state” includes any person or entities that are acting in accordance with national law. Even if China were to disavow conduct by local authorities or state media as not necessarily directly attributable to the national government, such actions nevertheless are accorded that status if and to the extent the state acknowledged and adopted the conduct as its own, as was done by the officials in Beijing (Article 11).
Wrongful acts are those that constitute a breach of an international obligation (Article 11). A breach is an act that is “not in conformity with what is required of it by that obligation … .” China’s failure to expeditiously and transparently share information with WHO in accordance with the International Health Regulations constitutes an early and subsequently extended breach of its legal obligations (Article 14). Consequently, China bears legal responsibility for its internationally wrongful acts (Article 28). The consequences include full reparations for the injury caused by the wrongful acts. China did not intentionally create a global pandemic, but its malfeasance is certainly the cause of it. An epidemiological model at the University of Southampton found that had China acted responsibly just one, two, or three weeks more quickly, the number affected by the virus would have been cut by 66 percent, 86 percent, and 95 percent, respectively. By its failure to adhere to its legal commitments to the International Health Regulations, the Chinese Communist Party has let loose a global contagion, with mounting material consequences.
President Xi will probably also be named personally and I would be greatly surprised if cases haven’t already been filed in U. S. courts. The U. S. federal government could shield China from such litigation but it’s hard for me to see why. As the article suggests the value of these litigations will likely be in the trillions.
The very least that should happen is that China should be expelled from the World Trade Organization.