No Justification for Stigmatizing China on COVID-19
By Huang Huikang
At the moment, COVID-19 has developed into a global pandemic. The United States has become a new epicenter, with the largest number of confirmed cases and deaths in the world, for which the Trump administration has been facing wide and continuous criticism at home and abroad. In the face of such a rare public health crisis since the Second World War, all countries should have helped and cooperated with each other, and the US government should give top priority to human life and make every effort to fight against the epidemic. However, in the context of the ongoing 2020 Presidential race, and for the purpose of diverting public attention and shifting the blame, some anti-China politicians and media in the United States have attempted to stigmatize China with COVID-19 by successively throwing out a series of absurd arguments. The National Republican Senatorial Committee (NRSC) even issued a 57-page strategy memo on 17 April, advising all Republican candidates to respond to the crisis by “aggressively attacking China”. Moreover, a number of concocted “complaints” were filed with various US federal district courts, including a lawsuit by state of Missouri. Meanwhile, Republican senators have tabled several proposed legislation or amendments to the 1976 Foreign Sovereignty Immunity Act (FSIA) to pave the way for seeking damages from China. On 8 May, Republican Attorneys General from 17 States wrote to the Congress leadership asking for investigation into China’s role in COVID-19 pandemic and holding China accountable for coronavirus related harms. It seems that this public opinion warfare deliberately initiated by the United States has tended to spread to the legal field. As a professional who has long been engaged in international law study, the author believes that it is necessary to lift up voice from the legal point of view: there is no justification at all for stigmatizing China on COVID-19.
For the naming of infectious diseases or new viruses, the World Health Organization (WHO) has established clear and uniform applicable legal norms, which should be strictly observed by all countries. Any act of associating COVID-19 with a particular country or region is either ignorance or deliberate violation of law for ulterior motives.
Based on a profound reflection on the lessons learned from the history of disease naming, particularly the tremendous negative effects from the naming of the “Middle East Respiratory Syndrome” (MERS) in 2012 and the “Swine Flu” in North America in 2009, WHO, together with the World Organization for Animal Health (OIE) and the United Nations Food and Agriculture Organization (UNFAO), updated the guidelines for virus naming in its Best Practices for the Naming of New Human Infectious Diseases published on May 8, 2015, which explicitly stated that geographical location, human name, animal or food population, and terms involving culture, population, industry or occupation (such as an army) and inciting excessive panic must not appear in disease naming. WHO further explained the fundamental reason for updating the virus naming guidelines, that is, “a number of new human infectious diseases have emerged in recent years, and using names such as ‘Swine Flu’ and ‘MERS’ had produced an unexpected negative effect due to its stigmatization of certain groups or economic sectors”. “Disease naming is critical to people who are directly affected. We find that the naming of some diseases arouses a strong reaction to members of specific religious or ethnic communities, creates unreasonable obstacles to travel, commerce and trade, and triggers unnecessary slaughter of food animals. This may cause serious consequences to people’s lives and livelihoods”. The recent surge in oral and even personal attacks on Asian Americans in the United States, triggered by the stigmatization of COVID-19, is the latest example of such effects. Thus, the core value of new virus naming guidelines is to avoid stigmatization in respect of virus or disease naming.
Somebody argued that it did not matter because there were cases of naming disease after certain countries such as Spanish Flu and Japanese Encephalitis. It was true that there had been examples of diseases named after a country or place in history. But these names were the product of an era of backwardness and have proved unscientific and harmful. For instance, the Great Plague that killed tens of millions of people from 1918 to 1919 was named “Spanish Flu”, which was inappropriate and misleading to the public. At that time, the source of the disease had not been identified, and the name “Spanish Flu” was deemed as a great shame for the Spaniards. Even till now, the Spaniards are still clarifying that the “Spanish Flu” is not the fault of Spain. In view of the high social sensitivity of virus and disease naming and the rise in human legal cognition of disease naming, WHO developed the new virus naming guidelines in 2015, which definitely represent the progress of human civilization and legal rules with the times. Politicians who advocated “COVID-19” as “Chinese Virus” or “Wuhan Virus” might need to make up the missed lessons on history.
In accordance with the 2015 guidelines and recent global public health practices, WHO announced on February 11, 2020 that the novel coronavirus-infected pneumonia would officially be named COVID-19. Specifically, “CO” represents corona, “VI” represents virus, “D” represents disease, and “19” represents the year 2019 of disease discovery. Meanwhile, because the coronavirus that caused COVID-19 is highly related to the coronavirus that caused SARS, it was named “SARS-CoV-2”. In this regard, WHO Director-General Tedros Adhanom Ghebreyesus emphasized that, “Properly naming new diseases is important to preventing people from using other inaccurate or stigmatized names”. “We want a name that does not allude to any geographic location, animal, individual, or group”. Michael Ryan, who heads WHO’s emergency health programs, also pointed out that the message conveyed by WHO has always been clear, that is, viruses have no national boundaries and make no distinctions in race, color and wealth. “The H1N1 pandemic in 2009 originated in North America, but we didn’t call it ‘North American Flu’. When we encounter other viruses, we use the same naming method to avoid association with any region.” In fact, the naming of SARS-CoV-2 and COVID-19 is legitimate and fully consistent with WHO’s virus naming guidelines and the best global public health practices and therefore widely accepted by the international community. Labelling SARS-CoV-2 with a country or a region is irresponsible and unacceptable. Certainly, stigmatization in virus naming is not a right tool to cover any government’s failures in response to the epidemic situation in its own country.
Now that WHO has established clear naming principles for new viruses or diseases, why do some US politicians still insist on stigmatizing China on the name of the virus? Are they ignorant or have ulterior motives? Since the WHO virus naming guidelines are jointly worked out and approved by Member States, it is impossible that the United States as a member of WHO is not aware of such principles. The only logical explanation is that the United States has an axe to grind.
By analyzing what some US politicians have done in the past few months since the outbreak of COVID-19, it is easy to find that the statements stigmatizing China are a political manipulation of US politicians for ulterior motives. In January this year when China was first hit by COVID-19, some American politicians kept gloating by publicly stating that the epidemic would “help accelerate the return of manufacturing to the United States”; in February when COVID-19 broke out in the United States, President Trump insisted that “the virus would soon disappear magically”; in March when the epidemic in the United States came to an emergency, Secretary of State Mike Pompeo and some other politicians falsely declared SARS-CoV-2 as “Chinese virus” or “Wuhan virus” to shift the blame; in April, the United States announced a “moratorium on funding to the World Health Organization” and lodged complaints in US courts against China. All these facts prove that some US politicians are selfish and loose-tongued as well as of no scruples.
It was the very fact that the NRSC issued the memo on April 17 urging its candidates to insist on the strategy of shifting blame to China when answering any questions about COVID-19, and the Attorney General of Missouri subsequently took the lead in bringing a civil lawsuit against the Chinese government on April 21, and to be followed by the Attorney General of Mississippi. Both of them are Republicans. Is it just a coincidence that the Republican Party’s strategy of stigmatizing China and the state attorneys general’s false accusation are successively initiated?
Revealing the specific background and political purpose of the statements stigmatizing China will help the public better understand the true intent of these fabricators of “Chinese virus” and the nature of these fallacies. It is fair to say that the recent behaviors of intensely stigmatizing and shifting the blame to China by the Trump administration and some politicians are organized and planned actions. Internally, such actions are plotted to meet the needs of the domestic political struggle in the Presidential election year; externally, the United States attempts to shift the blame to China and curb China’s influence on international cooperation in responding to the epidemic and thus contain China’s rapid development. It is widely believed by the international community that a handful of US politicians are targeting China and WHO in an attempt to find “scapegoats” to divert domestic attention from the failure of the US government to effectively prevent the epidemic from spreading in the United States.
In line with the stigmatization of China in respect to the naming of SARS-CoV-2, some US politicians also attempted to shifted the responsibility for the spread of the epidemic in their country upon China. For instance, Secretary of State Mike Pompeo and Republican senators John Cornyn, Kevin McCarthy, Chuck Grassley publicly peddled “China’s Responsibility Theory” and incited “prosecutions” of China. Congressmen Jim Banks even plotted to confiscate the US treasury bonds purchased by China, professing that “We need to start by forcing China to pay for the burden and cost brought about by SARS-CoV-2 to the United States... The President should force China to reduce a large portion of US debts.” For such a plot, we must say that the claims of US politicians to hold China accountable for COVID-19 are legally untenable.
First, the origin of SARS-CoV-2 has not yet identified by WHO and the international scientific community, and international law has no provision of state responsibility for the origin of a virus either. It is important to explore the source of the virus, but this mission relies on the sustained efforts of scientists and should not be politicized in any way. Even if the origin of the virus is identified in the future, there is neither a treaty nor a precedent in international law that requires the country where the virus originates or is first discovered to be liable for the loss of other countries. As the objective existence of nature, a virus does not have national boundaries and the epidemic situation does not make distinctions in races. Its emergence has the contingency, so does the intermediate host through which the virus spreads to human. In essence, the extensive outbreak of an epidemic disease is a global public health event and is “force majeure” in the legal sense, so the so-called “state responsibility” against the country where the virus first occurs does not hold at all. For example, in the global pandemic of “Swine Flu” caused by the H1N1 virus in 2009, the United States was identified as the source of the virus and Mexico was the starting place for the outbreak, but the United States did not demand compensation from Mexico, and other countries did not claim compensation from the United States either. After the argument of “China’s responsibility” for the COVID-19 epidemic came into being, it received little response in the international jurisprudential circle. This is an evident proof of its illegitimacy. In the United States, Professor Chimène Keitner, a prominent international jurist at University of California, also warned that “it is no use suing China for COVID-19” .
Secondly, there is no objective fact that the Chinese government “conceals the epidemic situation” and “does not act properly to handle the epidemic situation” as complained by plaintiffs in the lawsuits against China. Since the outbreak of COVID-19, China has always adhered to the concept of a community with a shared future for mankind, published the epidemic information timely in an open, transparent and responsible manner, fully shared the experience in epidemic prevention, control and treatment with WHO and the international community including the United States, and made great efforts to assist other countries. In fact, as of December 31, 2019, 27 cases of pneumonia of unknown origin were found in China, and on the same day, China informed WHO of the cases; on January 7, 2020, the laboratory confirmed the virus as a novel coronavirus and obtained the whole genome sequence; on January 12, 2020, China shared the genetic sequence with the international community. These efforts were highly commended by WHO, which believed that China had fully performed its obligations under the International Health Regulations in a timely and effective manner. It is widely acknowledged by the international community that the efficiency and scale of China’s actions are rare worldwide. It is exactly because of China’s effective prevention and control measures and the tremendous sacrifices made by the Chinese people that China has saved precious time for the international community to fight the epidemic. China should have contribution but no fault in responding to the epidemic.
Thirdly, according to international law, there must be a causal relationship between the loss of the victimized country and the wrongful act of the responsible country. China has not committed any internationally wrongful acts against the United States that are attributable to the Chinese government, nor has there been any causal relationship between China’s anti-epidemic practices and the potential loss of the United States due to a large-scale epidemic outbreak. On the one hand, there are no bilateral treaties or agreements on public health and emergencies between China and the United States, so there are no situations of default involving bilateral treaty obligations. On the other hand, although a contracting state is obliged to only notify WHO of an epidemic outbreak in accordance with the International Health Regulations, China has kept the United States informed in a timely and continuous manner. The United States was the first to get informed of the epidemic in China and has been receiving constantly updated information, which should have given it enough time to effectively prevent and control the spread of the epidemic. It is best for the American people to judge whether the Trump administration has seized and used this opportunity properly. But at the international level, the so-called “China’s Responsibility Theory” is nothing more than “shifting blame to China” by some US politicians and therefore should come to the end.
Incited by US politicians, along with the absurd arguments of stigmatization has come a wave of false accusation against China. Some US lawyers who believe in the survival principle of “success or fame” have initiated several “class actions” at federal courts in Florida, Texas and some other states on the grounds of unfounded hearsay and malicious speculation. Then, the Attorney-General of Missouri “sued” China in his official capacity. The Attorney-General of Mississippi said that he would follow up. The possibility of more false lawsuits against China could not be excluded. Nevertheless, this is absolutely a political farce in the guise of law, which is fundamentally untenable in law. Even in the United States, it is viewed unfavorably by the legal community.
First of all, such so-called “class action” has no legitimacy. As pointed out by Tom Ginsberg, a professor of international law at the University of Chicago in the United States, these series of lawsuits against China are initiated purely for political purposes. Right-wing politicians are trying to cover up the mistakes of the US government by focusing on China.
The analysis of the complaints of various “claim” cases in the US courts shows that the plaintiffs have deliberately used various rumors and malicious speculations as the basis of their lawsuits. Apart from a large number of groundless “accusations”, they have neither provided any evidence nor appropriate basis for the jurisdiction of the court. The demands for huge claims are even starry-eyed and cannot stand up to close scrutiny in terms of both procedural law and substantive law. It is foreseeable that such abuses and false accusation will not succeed in any country with sound laws and governance.
From the point of view of litigation procedure alone, US courts have no judicial jurisdiction over sovereign countries. Since the middle of the 19th century, the principle of state sovereign immunity based on the doctrine of par in parem non habet imperium has become a universally accepted principle of international law. A country, its government and property are not subject to the jurisdiction and enforcement of the courts of another country. In dealing with all these false accusation against China, the courts need to first determine whether the principle of sovereign immunity applies to the defendant since the defendant is not an ordinary civil subject but a foreign government. Although the plaintiffs advocate the application of rules provided in the 1976 US Foreign Sovereign Immunities Act in respect to exceptions for commercial activities with direct effects in the United States, wrongful acts occurring in the United States, and state sponsored terrorism, these exceptions do not hold in a strictly legal sense. The US law circles generally believe that such lawsuits are usually futile.
It has been observed that US courts aren’t likely to see the accusations against China as falling within these narrow categories. The legal hurdles go beyond immunity. Courts typically reject class-action suits on behalf of claimants with diverse interests, and government suits for impacts on state budgets or diffuse public and economic harms. The lawsuits make claims that likely fail on the merits — that China has affirmative duties to protect US citizens in the United States or is liable for very indirectly inflicted injuries.
With regard to the terrorism exception, the United States Act on Suppression of the Financing of Terrorism of 2016 stipulates that if a country supports terrorist acts and causes injury to relevant personnel in the United States, the United States parties may directly prosecute that country in a US court. Hence, the exception to sovereign immunity applies only when a foreign government finances any terrorist act that causes injury or death to US citizens. This does not exist at all in these cases. In the “class action” case in a federal district court of Texas, the plaintiff, based on online rumors, claimed that China should undertake large sums of compensation because it “failed to protect banned and illegal biological and chemical weapons and to provide adequate protection against accidental leaks”. This statement is unjustified and laughable, so how is it possible to constitute an exception to sovereignty immunity in law?
As for the business exception, it does not exist in these cases either. Although the United States pursues restrictive immunity on the judicial immunity of foreign countries and their property, state immunity applies only to the sovereign public acts of foreign countries and not to government transactions of a commercial or private nature. If foreign governments get involved in commercial activities or transactions as equal civil or business subjects, any disputes arising from such activities or transactions may not be subject to jurisdictional immunity from US courts. However, the “alleged” government action of China to prevent and control the COVID-19 epidemic is undoubtedly a public administration function of the government with no commercial attributes, and it applies entirely to the principle of state immunity even in accordance with the doctrine of restrictive immunity and in particular, the provisions of the FSIA; there is no fundamental commercial transaction relationship between the plaintiffs and the “defendant”; and there is no minimal connection between the Chinese government’s anti-epidemic action and US courts. All these facts do not meet the applicable conditions for business exception that limits state immunity.
With regard to the tort exception, as mentioned earlier, China has not committed any internationally wrongful acts against the United States in the fight against COVID-19, nor has there been any causal relationship between China’s anti-epidemic practices and the potential loss of the United States due to a large-scale epidemic outbreak. Therefore, the claim for “tort” liability is completely unjustifiable.
In order to avoid the legal restrictions on the jurisdiction of US courts, some Republican senators are in an attempt to push a new legislations or amendments to the FSIA to limit China’s sovereign immunity, but the US Congress must take into account the possible serious consequences.
In conclusion, COVID-19 is still wreaking havoc around the world, posing unprecedented crisis. The virus does not have national boundaries and is a common threat to all mankind. No country can escape from the epidemic, but should unite together to fight and overcome it.
It is an evil act to stigmatize China on COVID-19. The compensation lawsuits against China are groundless and violation of international law. They are also not conducive to the overall situation of international cooperation in fighting against COVID-19.
In accordance with the principles of sovereign equality and state immunity, any legal action against China in the US courts must be objected.
In face of COVID-19, human life is the top priority. Stigmatizing other countries will not get back the lost time and lives. Here we advise some US politicians to focus on saving lives rather than falsely accusing and stigmatizing China.
Huang Huikang is Member of the United Nations International Law Commission, and Distinguished Professor at Wuhan University Institute of International Law.