In a lengthy piece about the responsibility for the impact of the coronavirus on the world, a professor of international maritime law at the U.S. Naval War College surmises that the United States should make China make full reparations for the damage wrought by the virus.
James Kraska, the chair and Charles H. Stockton professor of international maritime law in the Stockton Center for International Law at the U.S. Naval War College, starts his essay by noting that after the novel coronavirus “incubated in Wuhan from mid-December to mid-January, the Chinese state made evidently intentional misrepresentations to its people concerning the outbreak, providing false assurances to the population preceding the approach of the Lunar New Year celebrations on Jan. 25.”
Kraska notes that the initial outbreak likely came from workers and customers of the city’s Huanan Seafood Wholesale Market in mid-December, and on Dec. 26, Chinese news outlets released reports of an anonymous laboratory technician who said the virus was 87 percent similar to SARS. That was followed by Li Wenliang, an ophthalmologist at Wuhan Central Hospital, who publicized the news in an online chatroom on Dec. 30.
Kraska cites Wuhan public health authorities leaving out Li’s discussion about SARS or a novel coronavirus. He delineates how Li and other medical professionals were shut down from publicizing what was really going on. He writes, “On Dec. 31, the Wuhan Municipal Health Commission falsely stated that there was no human-to-human transmission of the disease, which it described as a seasonal flu that was ‘preventable and controllable,” adding, “On Feb. 1, the New York Times reported that “the government’s initial handling of the epidemic allowed the virus to gain a tenacious hold. At critical moments, officials chose to put secrecy and order ahead of openly confronting the growing crisis to avoid public alarm and political embarrassment.”
Kraska points out the Chinese government failed to expeditiously share information with the World Health Organization.
Then Kraska gets down to brass tacks regarding holding China responsible:
As one of the 194 states party to the legally binding 2005 International Health Regulations, China has a duty to rapidly gather information about and contribute to a common understanding of what may constitute a public health emergency with potential international implications … Article 6 of the International Health Regulations requires states to provide expedited, timely, accurate, and sufficiently detailed information to WHO about the potential public health emergencies identified in the second annex in order to galvanize efforts to prevent pandemics.
WHO also has a mandate in Article 10 to seek verification from states with respect to unofficial reports of pathogenic microorganisms. States are required to provide timely and transparent information as requested within 24 hours, and to participate in collaborative assessments of the risks presented. Yet China rejected repeated offers of epidemic investigation assistance from WHO in late January (and the U.S. Centers for Disease Control and Prevention in early February), without explanation.
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 … 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 …
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).
Kraska states bluntly: “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.”
Under Article 31 of the Articles of State Responsibility, states are required to make full reparations for the injury caused by their internationally wrongful acts. Injuries include damages, whether material or moral. Injured states are entitled to full reparation “in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition” (Article 34). Restitution in kind means that the injured state is entitled to be placed in the same position as existed before the wrongful acts were committed (Article 35).
To the extent that restitution is not made, injured states are entitled to compensation (Article 36), and satisfaction, in terms of an apology and internal discipline and even criminal prosecution of officials in China who committed malfeasance (Article 37). Finally, injured states are entitled to guarantees of non-repetition, although the 2005 International Health Regulations were designed for this purpose after SARS (Article 48).”
After opining, “No one expects that China will fulfill its obligations, or take steps required by the law of state responsibility,” Kraska writes, “The law of state responsibility permits injured states to take lawful countermeasures against China by suspending their own compliance with obligations owed to China as a means of inducing Beijing to fulfill its responsibilities and debt (Article 49). Countermeasures shall not be disproportionate to the degree of gravity of the wrongful acts and the effects inflicted on injured states (Article 51).”
Other ideas: “ … action could include removal of China from leadership positions and memberships, as China now chairs four of 15 organizations of the United Nations system. States could reverse China’s entry into the World Trade Organization, suspend air travel to China for a period of years, broadcast Western media in China, and undermine China’s famous internet firewall that keeps the country’s information ecosystem sealed off from the rest of the world.”
The article concludes with a note stating: “The views expressed here are his own and do not represent those of the Stockton Center, the U.S. Naval War College, the Department of the Navy, the Department of Defense, or any part of the U.S. government.”
Author: Hank Berrien