Beijing Could Be Held Legally Responsible for Mishandling CCP Virus Outbreak, Experts Say

March 28, 2020 Updated: April 30, 2020

Months before the CCP virus developed into a global pandemic, Wuhan doctors tried signaling their concerns about a mysterious pneumonia caused by a SARS-like virus. Instead of allowing the warnings to flow to the public, Chinese authorities censored the information and reprimanded the doctors for “spreading rumors.”

As more information about the virus emerged, the Chinese Communist Party (CCP) failed to share it with the rest of the world and instead downplayed its severity. It withheld information, censored reports, and made false misrepresentations to the Chinese people and the international community.

When the regime finally placed its first containment measure on Jan. 23 by locking down the virus epicenter Wuhan, it was already too late. The virus had already spread across the country and would eventually spread to 185 nations and territories globally.

One study, currently in preprint from researchers at the University of Southhampton in the UK, found that if Chinese authorities had acted three weeks earlier, the number of cases could have been reduced by 95 percent.

The CCP’s suppression of information and mismanagement during the early stages of the deadly outbreak, which has resulted in sweeping human and economic devastation worldwide, is now raising questions about whether the regime can be held legally accountable for the virus’s spread around the world. Some legal experts believe so.

James Kraska, chair and Charles H. Stockton Professor of international maritime law in the Stockton Center for International Law at the U.S. Naval War College, said he believes the Chinese regime will have to bear responsibility for violating its duty under international law.

Under the law of state responsibility, he said, if a country has a legal duty to either do something but fails to do so, then it can be held legally responsible.

“The People’s Republic of China is a treaty party to the International Health Regulations … which almost every country in the world is a party to,” Kraska told The Epoch Times. “And that treaty requires states to be very forthright or forthcoming, to expeditiously share information on a broad category of diseases, including new influenza-like illnesses, such as the coronavirus.”

“This is a legal duty that states freely have entered into, and China like all states that are a party … have agreed to do that,” he added.

“But it appears in this case, China did not fulfill its duty.”

Epoch Times Photo
The logo outside a building of the World Health Organization during an executive board meeting on update on the coronavirus outbreak, in Geneva, on Feb. 6, 2020. (Denis Balibouse/Reuters)

The purpose of the International Health Regulations (pdf) is to “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”

The revised 2005 version is an agreement between 196 countries, requiring parties to notify the World Health Organization (WHO) “of all events which may constitute a public health emergency of international concern within its territory.”

It also requires parties to continue to inform WHO of “timely, accurate and sufficiently detailed public health information available to it on the notified event,” including information such as laboratory results, source and type of the risk, number of cases and deaths, and conditions affecting the spread of the disease and the health measures employed.

Withholding Information

Between mid-December and mid-January, the Chinese regime displayed a pattern of behavior of withholding information and making misrepresentations about the severity of the disease. Kraska said the delays to provide information to the World Health Organization (WHO) and false statements could be legally actionable under the law of state responsibility.

Chinese authorities started noticing a cluster of pneumonia cases with an unknown cause on Dec. 21, according to the Chinese Center for Disease Control and Prevention. The Chinese regime reported the unidentified infectious disease to the WHO on Dec. 31.

There was evidence that showed a Chinese lab had already mapped out most of the virus’ genome—a critical step for containing the outbreak and developing a vaccine—on Dec. 27. The findings were subsequently reported to Chinese officials and the state-affiliated Chinese Academy of Medical Sciences. A government-run laboratory also mapped the genome on Jan. 2, but this information was not made public and shared with the world until about a week later.

It also took the CCP about three weeks after informing the WHO about the virus to acknowledge that the virus could be spread from person to person. The Wuhan Municipal Health Commission falsely stated on Dec. 31 that there was no evidence of human-to-human transmission and that the disease was “preventable and controllable.” The narrative continued until Jan. 20, when the top Chinese epidemiologist, Zhong Nanshan, acknowledged that over a dozen health workers had contracted the virus at the frontline.

Epoch Times Photo
A doctor is sprayed with a disinfectant by his colleague at a quarantine zone in Wuhan, the epicenter of the CCP virus outbreak, in China’s central Hubei Province, on Feb. 3, 2020. (STR/AFP via Getty Images)

A study published in the New England Journal of Medicine in late January found that “there is evidence that human-to-human transmission has occurred among close contacts since the middle of December 2019.” WHO repeated the Chinese misrepresentations in its public statements, but added on Jan. 14 the disease could be contagious among family members.

Similarly, the Chinese regime also failed to expeditiously inform the WHO that health workers were also contracting the virus, information that would have been crucial to share in order to understand hospital transmission and risk to healthcare workers. The regime only announced the number of infections among healthcare workers during a Feb. 14 press conference hosted by the State Council Information Office. A senior Chinese health official said 1,716 health workers had contracted the virus and that six of them had died.

There was also evidence that the Chinese regime was preventing labs from sharing information about the virus. Hubei’s Provincial Health Commission ordered a lab to stop testing, not publish information related to the virus, and to destroy existing samples on Jan. 1, according to Chinese financial magazine Caixin.

The Chinese regime was also not responsive to international requests to learn about the virus and the outbreak. U.S. Health and Human Sevices Secretary Alex Azar previously said the United States had been trying to send a group of experts to understand the outbreak’s transmission and severity since Jan. 6. However, the United States’ repeated offers were left unanswered for a month. The Chinese regime eventually agreed to allow the WHO to send a group of international experts to study the virus in late January. This came after the WHO’s director-general Tedros Adhanom Ghebreyesus returned from a visit from China full of praise for its leader Xi Jinping and the regime’s response efforts.

Meanwhile, the regime silenced individuals from raising the alarm about the burgeoning outbreak. When multiple Wuhan doctors attempted to warn their colleagues and the public about a “pneumonia with an unknown cause,” later known to be the CCP virus, authorities attempted to silence them and reprimanded them for “rumor-mongering.” The most notable of them was Dr. Li Wenliang, an ophthalmologist who ultimately succumbed to the disease after contracting it from a patient he was treating.

Doctor Li Wenliang, Coronavirus Outbreak
Li Wenliang. (Courtesy of Li Wenliang)

Kraska noted, however, that the CCP’s failure to inform the international community about the virus should be distinguished from the misinformation of the Chinese regime to its citizens, which is a moral failure and cannot be actioned under international law.

“It’s part of what autocracies do because they very much fear open society and open information,” he said.

David Matas, a Canada-based lawyer who previously served as a member of the Canada delegation to the United Nations General Assembly, expressed a similar view to Kraska, saying that the regime could be in violation of the Biological Weapons Conventions, to which it is a party.

Matas, who was also a member of the Canada delegation to the United Nations Conference on an International Criminal Court, told The Epoch Times that the convention does not only talk about weapons but also biological agents. Countries party to the convention are obligated not to retain biological agents other than for peaceful purposes, he said.

“I would say that this coverup and repression is a form of retention of the virus, which is a biological agent. And so it’s a violation of the convention, at least in my view,” Matas said, adding that he believes repressing information about the virus is not a “peaceful purpose” under the convention.

In order to enforce the convention, a party state such as the United States could then make a complaint to the U.N. Security Council, Matas said. The security council is then supposed to investigate the claims and produce a report based on the investigation. He added that if the security council finds Beijing responsible, it could trigger remedies.

The United States, for example, could then use the report as a basis to designate China as a “state sponsor of terrorism” under the Foreign Sovereign Immunities Act (FSIA). This would then allow people in the United States to sue the regime for the harm caused, without facing the hurdle of sovereign immunity, a legal rule that insulates countries from being sued in other countries’ courts. Currently, Iran, North Korea, Sudan, and Syria have been designated as state sponsors of terrorism.

Turning to US Courts

Some in the United States have already turned to domestic courts as a way to pressure the regime to provide a thorough account of its actions, and seek remedies for the injury and distress caused by the pandemic.

There were over 116,000 confirmed cases in the United States on Saturday evening, according to data compiled by Johns Hopkins University. Meanwhile, many states have already put in place containment measures such as shutting down non-essential services and schools and ordering people to stay at home. Some businesses including grocery stores and restaurants have also voluntarily closed.

Florida’s The Berman Law Group, in partnership with Washington’s Lucas Compton, filed a class-action lawsuit against the Chinese regime on March 12, alleging that Beijing’s initial coverup resulted in the worldwide pandemic.

The lawsuit alleges that the CCP “knew that COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up for their own economic self-interest.”

“China has failed miserably to contain a virus that they knew about as early as middle of December,” Jeremy Alters, the chief strategist and non-attorney spokesperson of the lawsuit from Berman Law Group, told The Epoch Times. “In failing to contain that virus, they have unleashed a pandemic on the world, which, in very large part, could have been contained if they would have told the world health providers, people dealing with the issue, people who could help about it as early as early January.”

One barrier to the lawsuit is the doctrine of sovereign immunity, which states that a country is immune from civil suits or criminal prosecution in the court of another country. There are, however, exceptions set forth under the FSIA, which allows private individuals in the United States to sue a foreign country for its actions in certain situations.

Epoch Times Photo
A health worker handles a coronavirus swab test at a drive-thru testing center for COVID-19 at Lehman College in the Bronx, New York, on March 28, 2020. (John Moore/Getty Images)

Alters said U.S. lawsuits suing foreign countries have happened before, including ones against Libya, Sudan, Cuba, and even China. He said the two exceptions of the FSCA their suit will rely on are the “commercial activity” and “terrorism” exemptions.

“We are going to fight to make China pay and there is nothing that is going to stand in our way of doing that,” Alters said. “This is the American way. This is what we do. When someone has wronged you, you can go to court to recover. When a country has wronged you in such a massive way, you should have the right to do the very same thing.”

George Sorial, a partner of Lucas Compton, added that the lawsuit is unifying people in the country under a special cause.

“What we’re doing on behalf of people in the United States that has been hurt,” Sorial said. “We’re all aligned together and this is a bipartisan effort.”

The two firms said they have received over 10,000 inquiries from people in the United States as well as from around the world about their class action. They say that some foreign nationals are asking to be part of the suit, while lawyers and law firms around the world are asking whether they can launch similar lawsuits against the CCP in their own countries.

Enforcement Under International Law

If there is a finding that the regime had breached an international convention or failed to fulfill its obligation under the law of state responsibility, countries could then pursue a range of remedies or countermeasures.

Under Article 31 of the Articles of State Responsibility, “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.” There are many forms of reparations for injury under the articles including restitution, compensation, and interest.

Kraska believes the Chinese regime is unlikely to make reparations in accordance with the article, but injured countries could try to litigate their dispute with Beijing before the International Court of Justice or other international tribunals such as in the Permanent Court of Arbitration at the Hague.

However, the regime cannot be compelled to participate in the cases due to the principles of state sovereignty, he noted.

But this does not mean countries do not have avenues to seek remedy from China, Kraska said. Countries could still avail themselves by using legal countermeasures against the regime. This means that countries can suspend their own legal obligations they owe to the CCP as a way to induce the regime to fulfill its obligations.

“So that means it’s not just doing acts that are undiplomatic or that are unwelcome. It’s actually suspending international law, meaning that the injured state can do things that are normally unlawful, such as violating the sovereignty of the state causing the damage,” Kraska said.

However, one exception is using force against the country, he said.

Some of the countermeasures the United States could use against the regime include stopping payments to Chinese bondholders or suspending legal obligations under The World Trade Organization that could impact China.

The United States could also choose to close its markets to China and undermine the regime’s vast internet firewall to provide uncensored information to the Chinese people.

Kraska said the list of potential countermeasures is limitless.

Domestically, lawmakers have started voicing their concerns over Beijing’s mishandling of the virus in the early stages.

Jim Banks
Rep. Jim Banks (R-Ind.) on Capitol Hill on March 27, 2019. (York Du/NTD)

Rep. Jim Banks (R-Ind.) recently introduced a bipartisan House resolution, HR 907, to condemn the CCP for intentionally downplaying the outbreak through censorship and disinformation.

Meanwhile, Sen. Josh Hawley (R-Mo.) and Rep. Elise Stefanik (R-N.Y.) are also calling for an international investigation into how CCP’s initial handling of the virus may have endangered the United States and the rest of the world.

“It is time for an international investigation into the role their coverup played in the spread of this devastating pandemic,” Hawley said, in a joint press release with Stefanik.

“The CCP must be held to account for what the world is now suffering.”

The Epoch Times refers to the novel coronavirus as the CCP virus because the regime’s coverup and mishandling of the epidemic, which started in the central Chinese city of Wuhan, allowed the virus to spread throughout China and fan a global pandemic.

Eva Fu contributed to this report.

An earlier version of the article misstated George Sorial’s position at Lucas Compton, he is a partner at the firm.

Follow Janita on Twitter: @janitakan