The Coronavirus Blame Game: The Emergence of Pandemic Lawfare

I n D e b at e s a b o u t pa n D e M I C nefarious, underhanded goals, provocatively de-

responsibility, the field of law has been consulted scribed by the US Department of Defence as a

and drawn upon to continue conflict, in an ad- “strategy of the weak, using international fora,

justment of Carl von Clausewitz’s dictum, with judicial processes and terrorism” (Werner, 2010:

legal means. Such hostilities, as it were, are con- 62). The Lawfare Project notes that negative sting

ducted through a country’s legal institutions and in describing lawfare as “the use of law as a weap-

quasi-legal fora, making use of jurisprudence on of war, or more specifically, the abuse of the

and regulations to attain strategic goals. Law law and legal systems for strategic political or mil-

constitutes “the new politics”, what Siri Glop- itary ends” (Werner, 2010: 62Werner (2010). The source article does not provide a separate full bibliographic entry for this citation.). As Werner argues,

pen and Asuncion Lera St. Clair see as a field “The meanings of terms such as ‘lawfare are not

“expanding in social and political significance, set in stone, but rather, evolve through their use

not least in the contexts where other governance in different social practices” (Werner, 2010: 62Werner (2010). The source article does not provide a separate full bibliographic entry for this citation.).

structures are weak” (2012: 899). The practice of Now, the shoe is on the other foot, with

using law in that way has been described as law- those very same instrumentalised principles

fare, though the word itself, as has been noted, being used to target China for being the cause

has a curious career (Werner, 2010Werner (2010). The source article does not provide a separate full bibliographic entry for this citation.). During the of the novel coronavirus, otherwise known as

years of the George W. Bush administration, it COVID-19.1 Lawfare has become the mecha-

became a pejorative, a form of activity viewed nism by which transborder grievances can be

with suspicion as potentially undermining liber- contested and litigated and in the absence of an

al democracies. The neoconservative adoption international public health body with compen-

of lawfare as a term was done to discredit any sation or investigative powers. It has become

resort to law and procedure that might advance the means by which politicians in the West, pri-

1 For a discussion on its contested origins, see Bryner, 2020.

marily the United States and Britain, can appeal Italian immigrants arriving in the United

to international and domestic mechanisms to States in 1916 were accused for being particu-

seek compensation for charges of Chinese guilt. larly susceptible polio carriers. As Alan Kraut

In doing so, they appeal to various regulatory documents, many lived in “tightly concentrated

frameworks that traditional neoconservatives neighbourhoods, and because immigrants were

have shunned: the rule-based order; the role viewed by many as a marginal and potentially

international bodies such as the World Health subversive influence upon society, the incidence

Organization (WHO) play, and the use of tradi- of Italian polio made a dramatic impact upon

tional courts to accept that the People’s Republic the imagination of a public already shaken by

of China (PRC) can be sued in domestic courts. the virulence of the epidemic and the youth of

Along the way, exhortations have been made its victims” (Kraut, 2010Kraut (2010). The source article does not provide a separate full bibliographic entry for this citation.).

that challenge central tenets of the international The H1N1 virus that killed millions in 1918

legal system, including the principle of sovereign and 1919 became associated with Spain less for

immunity and its correlative, sovereign equality. geographically accurate reasons than political

convenience. Belligerents during the Great War

Blameworthy Diseases were keen to restrain discussions about a virus

“The beauty of blaming ‘China’ lies in its ambigui- that might sap the morale of fighting forces.

ty” (Liu, 2020Liu (2020). The source article does not provide a separate full bibliographic entry for this citation.). This tendency of pandemic blame Spain, being neutral during the Great War, did

is not, unlike COVID-19, novel. Disease and in- not embargo or prevent reports on the virus.

fection, as Susan Sontag noted with penetrating When an outbreak took place in Madrid as re-

clarity, engenders moral turpitude and suggestion ported in the city’s ABC Newspaper, the illusion

(Sontag, 1989Sontag (1989). The source article does not provide a separate full bibliographic entry for this citation.). The naming of infections and dis- of Spanish responsibility was created (Trilla &

eases in terms of geographic and cultural origin Daer, 2008).

is rooted in the language of attribution and moral The last century also saw notable instances

suggestion. Syphilis was deemed morbus galli- of epidemic blameworthiness, fuelled by polit-

cus, or the “French disease” by Italians in the 16th ical motivation. In 1985, the official journal of

century facing the soldiers of the French monarch the Soviet Writers Union, Literaturnaya Gazeta,

Charles VII; the French retorted by referring to it ran articles arguing that Acquired Immunode-

as “the Neapolitan disease”. It did not take long ficiency Syndrome (AIDS) was a product of bi-

for accusations to be directed at the inhabitants ological work being undertaken at Fort Detrick,

of the Iberian Peninsula, given links with the mis- Maryland, in collaboration with the Centres of

sion of exploration by Christopher Columbus to the Disease Control in Atlanta, Georgia (Elkin

the Americas (Rumbaut, 1997: 440). The Black & Gilman, 1988: 361; Seale, 1986). The political

Death in Europe also brought upon Europe a cartoonist for the official broadsheet Pravda, D.

range of regulations with a principled purpose: to Agaeva, was inspired by images that remain rel-

target the corrupted bodies who were themselves evant as tropes of blame and presumption: a sin-

accused of being repositories of degenerate filth. ister looking scientist, supplying a test tube filled

In Florence, for instance, prostitutes and beggars with the AIDS virus – and swastikas – to a US

were seen as “sources of pollution in the civic general. Many dead also figure, but as concentra-

body” (Slack, 1988: 447). tion camp victims (Elkin & Gilman, 1988: 361).

cal rivalry between the United States and China has shaped the politics of the pandemic” (Fidler, 2020Fidler (2020). The source article does not provide a separate full bibliographic entry for this citation.). In the United States it has become the “Chinese virus”, a prelude to a range of legal efforts to seek compensation, restitution and retribution (Libby & Rank, 2020Libby & Rank (2020). The source article does not provide a separate full bibliographic entry for this citation.). This has prompted counter-accusations from China that the virus was a US creation, a narrative that has been picked up by other countries unsympathetic to Washington’s geopolitical agenda (Aarabi, 2020Aarabi (2020). The source article does not provide a separate full bibliographic entry for this citation.). “It might be,” charged China’s foreign ministry spokesperson Zhao Lijian, “a US army who brought the academic to Wuhan” (Lijian, 2020Lijian (2020). The source article does not provide a separate full bibliographic entry for this citation.). Such accusations

China Daily, (2020Logan Alters,et al. v People’s Republic of China, et tant and export of medical equipment, such as al. (2020). The source article does not provide a separate full bibliographic entry for this citation.) have taken root despite the stance taken by such

prominent medical journals at The Lancet, which

In recent times, the same accusations have has condemned “conspiracy theories suggesting

been directed at culture, habit and behaviour, that COVID-19 does not have a natural origin”

notably with Ebola. An argument has been made (Calisher et al., 2020: 42; Bryner, 2020Bryner (2020). The source article does not provide a separate full bibliographic entry for this citation.).

that populations suffering from such disease also endure judgment in a political and epidemiolog-

ical sense, assessments that neglect the “power Conspiracy narratives about

relations” that constitute “an active reinscription COVID-19 being engineered and

– and therefore legitimation – of global health then deployed also supplied the

inequities along colonial lines” (Richadson, momentum for broader accusations, contributing to a pandemic McGinnis & Frankfurter, 2019: 1). demonology.

Frameworks of Blame Conspiracy narratives about COVID-19 be-

The novel coronavirus has not been spared the ing engineered and then deployed also supplied

lexical game of attribution. Regarding its cause, the momentum for broader accusations, con-

Australian Senator Malcolm Roberts took up tributing to a pandemic demonology. A leading

the theme: “Should China pay compensation proponent in this game of attribution has been

for unleashing COVID19 on the world?” (Rob- US President Donald Trump. On March 16,

erts, 2020). The answer is implicit in the ques- Trump tweeted about the US “supporting those

tion; intention, guilt and causality are assumed. industries, like Airlines and others, that are par-

Under the cover of law, a complex natural event ticularly affected by the Chinese Virus” (Trump,

has been given an anthropogenic impetus in the 2020). When asked as to why he insisted on

service of geopolitics. “The case for Chinese lia- naming it such, he was blunt. “Because it comes

bility for COVID-19’s consequences,” suggested from China. That’s why. It’s not racist at all. I

global health specialist David Fidler, “seems less want to be accurate” (Fallows, 2020Fallows (2020). The source article does not provide a separate full bibliographic entry for this citation.). US Secre-

about international law than how the geopoliti- tary of State Mike Pompeo preferred the term

“Wuhan virus”, giving a sense of locality and The point was a moot one, as the culprit was al-

specificity, while also underlining the element of ready assumed. The resolution found “that the

dissembling on the part of the PRC. “The mere Government of the People’s Republic of China

fact that we don’t know the answer – that China should be held accountable for the impact, of its

hasn’t shared the answers – I think is very, very decision to hide the emergence and spread of

telling” (AP News Agency, 2020AP News Agency (2020). The source article does not provide a separate full bibliographic entry for this citation.). For Pompeo, COVID-19, on the lives and livelihoods of the

the proximity of the wet market where the virus people of the United States and other nations.”

is said to have originated, and that of a virology In a manner defiant of Chinese sovereignty, the

institute, was also telling, a potential conspira- resolution also wished any such investigation to

torial thread linking motive with malfeasance. be led by public health officials drawn from the

“We know that there is the Wuhan Institute of US and “other affected nations”.

Virology just a handful of miles from where the

wet market was” (AP News Agency, 2020AP News Agency (2020). The source article does not provide a separate full bibliographic entry for this citation.). Delegitimising Sovereignty

In late April, Pompeo showed even greater The most conspicuous element of pandemic conviction in building upon the lab-engineered lawfare in Congress came in efforts to delegitithesis, contradicting the position taken by the US mise the juridical nature of Chinese sovereignty. Office of the Director of National Intelligence. Not only was the PRC to be investigated with a “The best experts so far seem to think it was pre-determined goal of identifying guilt, it was man-made. I have no reason to disbelieve that to be stripped of customary immunities in US at this point” (Pompeo, 2020Pompeo (2020). The source article does not provide a separate full bibliographic entry for this citation.). The Intelligence courts. Various proposed bills served to repudiate Community’s position, outlined in an ODNI the principle of sovereign equality in internationstatement, had a rather different assessment of al law, one that accepts the premise that all states that expertise, accepting that COVID-19 had

Chinese geographical origins while concurring are equal in a juridical sense, in spite of asymmet-

“with the wide scientific consensus” that it was rical realities in military power, economy and de-

“not manmade or genetically modified.” The mography (United Nations Charter, Article 2(1);

Intelligence Community would continue “rigor- Anson, 2016). “The equality of States,” as the jurist

ously” examining information and intelligence Hans Kelsen formulated, “is frequently explained

on “whether the outbreak began through con- as a consequence of or as implied by their sover-

tact with infected animals or if it was the result eignty” (Kelsen, 2000:34). The principle is further

of an accident at a laboratory in Wuhan” (Office developed in the UN Declaration on Friendly Re-

of the Director of National Intelligence, 2020). lations and Cooperation among States: “All States

In March, Missouri Republican Senator enjoy sovereign equality. They have equal rights

Josh Hawley and New York Republican Repre- and duties and are equal members of the inter-

sentative Elise Stefanik, introduced a bicamer- national community, notwithstanding differences

al resolution demanding a “full, international of an economic, social, political or other nature”

investigation” into the origins of COVID-19.2 (United Nations, 1970United Nations (1970). The source article does not provide a separate full bibliographic entry for this citation.).

2 US Senate Resolution Supporting an international investigation into the handling by the Government of the People’s Repub-

lic of China of COVID-19 and the impact of handing COVID-19 in that manner on the people of the United Sates and other nations, 116th Congress, 2d session, available at: https://www.hawley.senate.gov/sites/default/files/2020-03/Hawley-China-Coronavirus-Resolution.pdf

sial precedent as a model with which to frame In Congress, a challenge to the exceptions to the FSIA. Hawley’s Justice for merits of the FSIA, urging both Victims of COVID-19 Act would remove sovan investigation and an easing ereign immunity while creating “a private right of litigation barriers for state

institutions and private citizens, of action against the CCP for reckless actions

coalesced around ideas of pandemic like silencing whistleblowers and withholding

liability. critical information about COVID-19” (Hawley,

2020). Cotton, along with his House counterpart

Axiomatic in recognising such equality is Representative Dan Crenshaw (R-Texas) pro-

the principle of sovereignty immunity sparing posed a bill with ideological specificity, avoiding

a State’s officials from legal action in the courts any overt reference to country and preferring,

of another country. As the noted English case instead, to target the political apparatus. “This

of the Queen’s Bench Mighell v Sultan of Johore Act,” went the bill’s short title, “may be cited as

the ‘Holding the Chinese Community Party Ac- (1894) reasoned, a sovereign could never waive countable for Infection Americans Act of 2020” immunity except through submitting to the (Cotton, 2020Cotton (2020). The source article does not provide a separate full bibliographic entry for this citation.). To that end, the United States jurisdiction of the court “by appearance to a Code would be amended to create a civil action writ” (Mighell v Sultan of Johore, 1984Mighell v Sultan of Johore (1984). The source article does not provide a separate full bibliographic entry for this citation.). The US “against a foreign state for deliberate concealequivalent of a sovereign’s protection from suit ment or distortion of information with respect is to be found in the Foreign Immunities Act to an international public health emergency, and of 1976 which, in the words of a United States for other purposes.” The bill did not exclude the Court of Appeals decision, “protects foreign sovexecutive from reviewing private suits: the Secereigns from the burdens of litigation, including retary of State could stay proceedings but only if the cost and aggravation of discovery” (Rubin v it was certified that the US was “engaged in good Islamic Republic of Iran, 2011: 795). faith discussions with the foreign state defend- In Congress, a challenge to the merits of ant, or any other defendant, with respect to the

the FSIA, urging both an investigation and an resolution of the claim against such a defendant”

easing of litigation barriers for state institutions (Cotton, 2020: 6Cotton (2020). The source article does not provide a separate full bibliographic entry for this citation.).

and private citizens, coalesced around ideas of Other legislative proposals have been more

pandemic liability. China’s conduct vis-à-vis aggressive, insisting upon generous compensa-

COVID-19 was deemed exceptional to decades tion. Accepting the bio-engineered thesis, Ten-

of accepted jurisprudence. The inspiration for nessee Senator Marsha Blackburn proposed a bill

paring back the principle of sovereign immuni- to amend the FSIA by establishing “an exception

ty was drawn from the Justice Against Sponsors to jurisdictional immunity for a foreign state

of Terrorism Act (JASTA), an act which deterri- that discharges a biological weapon”. Her pro-

torialised the commission of torts contributing posed bill was duly titled the “Stop China-Orig-

to a terrorist attack carried out on US territory inated Viral Infectious Diseases Act of 2020”

(JASTA, 2016: section 3). Both Senators Josh or the “Stop COVID Act of 2020” (Blackburn,

Hawley (R-Missouri) and Tom Cotton (R-Ar- 2020). The rationale for the bill was outlined

kansas) resorted to this particularly controver- in an interview with Charlie Kirk, president of

the conservative group Turning Point USA, an A few of these cases are worth encounter notable for the accusation that Chimentioning, not so much because na was part of “the new axis of evil”. Cause and of their prospects of success,

culprit barely warranted a challenge. “We know but because of their underlying

they caused the COVID virus. They did this by assumptions about China’s

hiding information by lying about what is hap- culpability vis-à-vis the virus.

pening. They were not transparent. They would

not give us the viral sample to work from.” She A clutch of legal actions have also been

then makes the leap, obfuscating motive, design filed in the United States against the PRC and its

and carelessness. “It most likely started in one of various entities. In the course of a few months,

their labs. And China is now trying to say, ‘Oh, it six suits were filed in US federal courts. These

was not one of us’, when there has been concern have varied from individual business owners to

about those labs expressed going back to 2014” the actions of state attorneys (Bella Vista LLC v

(Martin, 2020Martin (2020). The source article does not provide a separate full bibliographic entry for this citation.). The People’s Republic of China et al., 2020; Logan

Alters,et al. v People’s Republic of China, et al.,

Pandemic Lawfare Suits 2020). All run the formidably imposing barrier

of sovereign immunity, one that remains despite Legal interest in seeking compensation from current Congressional efforts to undermine it. China via legal fora has stirred in several coun- All, to some extent, make the argument that tries. “When all this will be over, and perhaps China’s malfeasant conduct vis-à-vis COVID-19 even before,” warned the Italian sociologist has ostensibly waived such a protective assertion Massimo Introvigne, “the CCP may find itself (Carter, 2020Carter (2020). The source article does not provide a separate full bibliographic entry for this citation.). attacked by an enemy its mighty military power A few of these cases are worth mentioning, will not be able to stop, aggressive Western lawnot so much because of their prospects of sucyers” (Introvigne, 2020Introvigne (2020). The source article does not provide a separate full bibliographic entry for this citation.). These efforts have varcess, but because of their underlying assumptions ied in scale, from small, private suits for loss of about China’s culpability vis-à-vis the virus. Their

income to state-sanctioned actions against the overall purpose is also galvanic in nature and, to

PRC and is various entities. In Italy, a ski resort that end, a paragon example of lawfare as practice:

hotel in the Dolomites presented a subpoena to to encourage political representatives to diminish

the court of Belluno seeking compensation from and qualify the immunity principle by giving US

the PRC’s health ministry for loss of business citizens standing to sue foreign states for damage

earnings, notably the period March 18-22, when arising from pandemics (Johnson, 2020Johnson (2020). The source article does not provide a separate full bibliographic entry for this citation.).

it was fully booked for the Alpine Ski World In March, a class action complaint was

Cup (Oggi Treviso, 2020Oggi Treviso (2020). The source article does not provide a separate full bibliographic entry for this citation.). In the words of legal lodged in United States District Court of the

representative Marco Vignola, “The early and Southern District of Florida “for damages suf-

sudden closure led to disastrous consequences, fered as a result of the Coronavirus epidemic”

including the dismissal of all staff and the can- (Logan Alters,et al. v People’s Republic of China, et

cellation of contracts with suppliers” (Bowcott al., 2020Bowcott al. (2020). The source article does not provide a separate full bibliographic entry for this citation.). The accusation: that China and its var-

& Giffrida, 2020). ious arms of government “knew that COVID-19

was dangerous and capable of causing a pandem- which has been read narrowly to only include

ic, yet slowly acted, proverbially put their head tortious conduct that has occurred in its entirety

in the sand, and/or covered it up for their own within the United States (In re Terrorist Attacks

economic self-interest”. Such conduct had caused on Sept. 11, 2001, 2013: 117). In the wording of

“incalculable harm” and injury “and will contin- the suit, China’s COVID-19 conduct constituted

ue to cause personal injuries and deaths, as well “commercial activities” causing “a direct effect in

as other damages”. The Florida class action suit the United States and in the State of Missouri”

attempts to sidestep the obstacle of sovereign im- including operating the healthcare system in

munity by claiming an exception for commercial Wuhan and China; commercial research on vi-

activities and for death and harm “caused by the ruses undertaken at the Wuhan Institute and

tortious act or omission of that foreign state or of Chinese Academy of Sciences; the use of tradi-

any official or employee of that foreign state while tional and social media platforms for commeracting within the scope of his or her employment” cial profit; and “production, purchasing impor- (Logan Alters,et al. v People’s Republic of China, et tant and export of medical equipment, such as al., 2020Logan Alters,et al. v People’s Republic of China, et tant and export of medical equipment, such as al. (2020). The source article does not provide a separate full bibliographic entry for this citation.). personal protective equipment (“PPE”), used in The state of Missouri also took it upon it- COVID-19 efforts” (The State of Missouri, 2020: self to commence a federal court lawsuit seek- 9-10The State of Missouri (2020). The source article does not provide a separate full bibliographic entry for this citation.). The FSIA non-commercial tort exception ing to hold Beijing and the Chinese Communist was cited as waiving Chinese immunity, as mon- Party accountable for COVID-19 and its conseey damages were being sought against “a foreign quences. The allegations in the lawsuit filed by state for personal injury or death, or damage the state Attorney General Eric Schmitt follow to or loss of property, occurring in the United the standard narrative of suppression, eviden- Sates” (The State of Missouri, 2020: 10-11The State of Missouri (2020). The source article does not provide a separate full bibliographic entry for this citation.). tiary destruction and concerted cover-up. “Dur- The way these exceptions have been cited in ing the critical weeks of the initial outbreak, Chithe context of suing China and its various ennese authorities deceived the public, suppressed tities goes someway to understanding the law-

crucial information, arrested whistleblowers, fare elements inherent in these actions. In these,

denied human-to-human transmission in the China figures as both economic competitor and

face of mounting evidence, destroyed critical perpetrator of civil wrongs; a dangerous threat

medical research, permitted millions of people and an authoritarian, negligent power. COV-

to be exposed to the virus, and even hoarded ID-19 is reasoned analogously as a product of

personal protective equipment – thus causing a manufacture and commerce, a point that ties

global pandemic that was unnecessary and pre- in with the trade war approach of the Trump

ventable” (The State of Missouri, 2020The State of Missouri (2020). The source article does not provide a separate full bibliographic entry for this citation.). administration (Wong & Koty, 2020Wong & Koty (2020). The source article does not provide a separate full bibliographic entry for this citation.). While

To puncture the veil of sovereign immuni- acknowledging the thesis about zoonotic trans-

ty, two exceptions, neither particularly plausible, mission from the Wuhan Seafood Market, the

are cited: the “commercial activity exception” State of Missouri’s legal action also shows a de-

to the FSIA which waives immunity for for- gree of sympathy for the “emerging theory” that

eign states when such activity has a direct effect the virus “was released from the Wuhan Institute

on the US; and the tortious liability exception, of Virology, which was studying the virus as part

of a commercial activity” (The State of Missouri, Such primacy tends to be ignored in such

2020: 12). The virus becomes the equivalent of a publications as Australia’s 2016 Defence White

dangerous, disruptive export, affecting the glob- Paper, which merely sees such rules as part of “a

al economy and jobs, viewed as a weapon equally broad architecture of international governance

if not more significant than industrial espionage which has developed since the end of the Sec-

and cyber hacking. ond World War.” The publication warned that

“the rules-based global order” was being placed

Rule-Based Orders and “under increasing pressure and has shown signs

International Law of fragility” (Australian Government Depart-

China has repeatedly been critiqued, criticised ment of Defence, 2016: 45). (Rules-based global

and challenged for contesting what has been order, as a term, is used on 48 occasions in the

asserted as the rule-based international order document.) The term also finds greater curren-

(Chellaney, 2019Chellaney (2019). The source article does not provide a separate full bibliographic entry for this citation.). Malcolm Chalmers has sug- cy in British policy positions since 2015. The UK

gested the provocation that there is no single government’s 2015 Strategic Defence and Security

“rules-based international system” (Chalmers, makes reference to the term no less than 27 times;

2019). Such a view pairs with the idea that the references to a “rules-based international system”

international system tends towards a degree of number a mere two in the 2010 National Security

anarchy, softened by areas of consensus and state Strategy (HM Government, 2015; HM Govern-

understanding. If there are rules to be laid in ment, 2010; Chalmers, 2019: 1).

Pandemic politics and statecraft in reany such system, there are done so, as Henry sponse to COVID-19 have invariably continued Kissinger states with frankness, by the dominant the theme of rules-based criticism, with China power “according to its own values” (Kissinger, showing, according to this argument, the creden- 1994: 17). Others prefer a more refined version tials of a putative lawbreaker in the internationof this blunt formula, referring to the presence al community. In Britain, a number of veteran of “identification” norms that underpin a global Conservative politicians, led by former Deputy system run by “great power management”, with Prime Minister Damian Green, penned a letter the Concert of Europe of the nineteenth century to Prime Minister Boris Johnson urging him to being a notable example (Zala, 2017Zala (2017). The source article does not provide a separate full bibliographic entry for this citation.; McLaughreconsider the nature of Britain’s post-coronavilin, 2018McLaughreconsider the nature of Britain’s post-coronavilin (2018). The source article does not provide a separate full bibliographic entry for this citation.). To that end, the rules-based order as rus China relationship, worried about the “damrhetorically articulated was based on one key asage to the rules-based system caused by China’s sumption: the continuation of US primacy. non-compliance with international treaties”. They spoke of those, “Legally binding international healthcare regulations (that) require states Pandemic politics and statecraft in to provide full information on all potential panresponse to COVID-19 have invariably

continued the theme of rules-based demics”. China had, it was argued, failed to abide

criticism, with China showing, by them, a grave omission that “allowed the dis-

according to this argument, the ease to spread throughout with extraordinary

credentials of a putative lawbreaker serious consequences in terms of global health

in the international community. and the economy” (Holloway, 2020Holloway (2020). The source article does not provide a separate full bibliographic entry for this citation.).

health emergencies outlined in the second annexe of the 2005 revision. Transparent information needs to be furnished within 24 hours and collaborative assessment of those risks conducted. “Yet China rejected repeated offers of epidemic investigation assistance from WHO in late January (and the US Centres for Disease Control and Prevention in early February), without explanation”. For Kraska (2020Kraska (2020). The source article does not provide a separate full bibliographic entry for this citation.), the International Law Commission’s Responsibility of States for Internationally Wrongful Acts 2001 offered guidance, notwithstanding their non-binding nature (International Law Commission, 2001International Law Commission (2001). The source article does not provide a separate full bibliographic entry for this citation.). To circumvent this drawback in his argument, Kraska (Pikist, 2020Pikist (2020). The source article does not provide a separate full bibliographic entry for this citation.) suggested that the restatement, developed with contributions by numerous parties constituted

Such regulations were first adopted by the customary international law, thereby binding all

World Health Assembly in 1969 to control chol- states. “Wrongful acts” were those that could be

era, plague, yellow fever, smallpox, relapsing “attributable to the state” and “constitute a breach

fever and typhus. Additions of smallpox, poli- of an international obligation; such conduct could

omyelitis, SARS, and human influenza caused be attributable if it was an act of the state’s execu-

by a new subtype were made in the 2005 revi- tive, legislative or judicial functions of the central

sion (WHO, 2016WHO (2016). The source article does not provide a separate full bibliographic entry for this citation.). Consulting the International government (Kraska, 2020Kraska (2020). The source article does not provide a separate full bibliographic entry for this citation.).

Health Regulations reveals various state under- Like Kraska, Introvigne makes the point

takings, obligating States to develop, strengthen, unreservedly: that China’s reaction to COV-

and maintain public health infrastructure to as- ID-19 was itself a violation of the public health

sist in detecting, monitoring, reporting and no- order that arose in response to Beijing’s handling

tifying the events of the global health crisis. In of SARS in 2002. “It is, indeed, a basis the world

the event of a public health emergency of inter- created with China in mind.” Such language

national concern (PHEIC), a State is obligated to is purposefully directed at China as an outlaw

communicate to the WHO via the National IHR state, with the “world” duly taking stock in cre-

Focal Point all public health-related information ating the International Health Regulations of

and events taking place within its territory with- the WHO. Reference is also made to the Draft

in 24 hours of assessment (WHO, 2016WHO (2016). The source article does not provide a separate full bibliographic entry for this citation.). Articles on the Responsibility of States for Inter-

James Kraska (2020Kraska (2020). The source article does not provide a separate full bibliographic entry for this citation.) of the Stockton Cen- nationally Wrongful Acts. The PRC, Introvigne

tre for International Law at the US Naval War submits, violated its obligations due under such

College found Article 6 of the IHR particularly laws triggering the basis for “full reparation for

salient. The provision obligates states to provide the injury caused by the internationally wrong-

expedited, timely, accurate, and sufficiently de- ful act” in “the form of restitution, compensation

tailed information to the WHO about public and satisfaction” (International Law Commis-

sion, 2001: Article 34; Introvigne, 2020). Article national law, the HJS report suggests the norms

39 of the Draft Articles on the Responsibility of of international health regulations dating back

States for Internationally Wrongful Acts is also to the nineteenth century, when the Internation-

cited, namely, that, in determining reparation, al Sanitary Convention came into being (Hen-

“account shall be taken of the contribution to derson et al., 2020: 23). As with Kraska, the HJS

the injury by wilful or negligent action or omis- makes solemn reference to the IHR 2005, which

sion of the injured State or any person or entity outlines duties and obligations of the WHO

in relation to whom reparation is sought” (In- while also conveying those for member states “to

trovigne, 2020). While Kraska is rather short on prevent the spread of infectious diseases” (Hen-

a solid legal basis for Chinese compensation, he derson et al., 2020: 23). The PRC was bound

suggests exclusion, alienation and estrangement “to report timely, accurate and detailed public

from the international community. The PRC is, health information.” It failed to do this through-

effectively, to be marginalised from the interna- out December 2019 and January 2020. “In fact,

tional comity of nations. it appears at least possible that this was a delib-

erate act of mendacity.” (The authors minimise the importance of those common historical ten- Arguments favouring compensation

for pandemic wrongdoing were dencies in decision-making: negligence through

also voiced in British quarters. error; damage caused by complacency.) The re-

port’s central sentiment is resentment: had the

Arguments favouring compensation for detection and sharing of accurate information

pandemic wrongdoing were also voiced in Brit- taken place in good time, “the infection would

ish quarters. The neoconservative British-based not have left China” (Henderson et al., 2020: 3Henderson et al. (2020). The source article does not provide a separate full bibliographic entry for this citation.).

Henry Jackson Society, while admitting that Furthermore, “Inadequate and inaccurate infor-

successful legal actions might be problematic, mation” from the PRC hampered the UK’s for-

took an interest in the whole question of PRC mulation of an effective response. Reliance was

liability, putting the claim in a report that China’s placed upon World Health Organization reports

balance sheet of damages had come in at £3.2 drawing upon faulty Chinese data claiming, at

trillion from G7 countries alone (Henderson that point, that “there were no cases of med-

et al., 2020). The HJS, having accepted Chinese ics contracting the diseases” (Henderson et al.,

malfeasance and clear responsibility, constantly 2020: 19). An argument as also advanced that

iterate “the rules-based international system”. the PRC had attempted to influence the impar-

To preserve that system “and to protect taxpay- tiality of the WHO Director-General through

ers from punitive liabilities, the world should withholding information, providing potentially

seek to take legal action against the PRC for the false information or by not providing informa-

breaches of international law and their conse- tion at a critical moment in time might also con-

quences” (Henderson et al., 2020Henderson et al. (2020). The source article does not provide a separate full bibliographic entry for this citation.). stitute grounds (Sarkar, 2020Sarkar (2020). The source article does not provide a separate full bibliographic entry for this citation.).

The central argument made by the organ- Cause and accountability in terms of con-

isation hinged upon Beijing’s reckless indiffer- cealment is extended to the politburo itself,

ence or negligence towards international health with the HJS noting a timeline of President Xi

provisions. To anchor Chinese liability in inter- Jinping’s engagements with the matter outlined

in the CCP’s “main theoretical journal, Quishi er modes of dispute settlement that could trigger

(‘Seeking Facts’)”. A transcript of a speech made ICJ involvement (International Court of Justice,

on February 3, 2020 by Xi referred to a statement 2002). The World Health Assembly might itself

made in early January taking note of “require- be bypassed in undertaking ICJ proceedings,

ments for the prevention and control of the new provided it satisfied the negotiation condition.

Coronavirus” (Henderson et al., 2020: 21Henderson et al. (2020). The source article does not provide a separate full bibliographic entry for this citation.). But, as has been suggested by Peter Tzeng, a

specialist practitioner in public international law, the State in question would have to frame its complaint regarding Chinese conduct “as one concerning the interpretation or application of the WHO Constitution” (Tzeng, 2020Tzeng (2020). The source article does not provide a separate full bibliographic entry for this citation.).

Pandemic Lawfare’s Pitfalls A generous body of scepticism has been generated by the pandemic law effort. For instance, using the commercial activity exception, was, according to Joel Trachtman of the Fletcher School at Tufts University, “specious” (Johnson, 2020Johnson (2020). The source article does not provide a separate full bibliographic entry for this citation.). Alleged government failures in handling a pandemic could hardly count as a matter of

Chinese President Xi Jinping at the 73rd World Health commerce. The jurisprudence on the subject

Assembly (WHA) while he promotes global cooperation

in the pandemic fight. (Xinhuanet,2020Xinhuanet (2020). The source article does not provide a separate full bibliographic entry for this citation.) has also pointed to the need to show that eco-

nomic damage and the linking act must take

In terms of viable international fora to hear place on US soil. Ingrid Weurth of Vanderbilt

such grievances, options proved thin. The HJS University School of Law is even more specific.

admitted that bringing any dispute based upon “The tortiable activity has to be done in Mis-

the IHR before the WHO would be “unprece- souri, not in Wuhan, China.” The only genuine

dented” but possible. “This would be a readily way where this could be circumvented would be

accessible avenue for states bringing complaints to pass legislation removing sovereign immuni-

in relation to the handling of COVID-19” (Hen- ty on tortious and commercial exceptions (John-

derson et al., 2020: 24). The WHO Constitution, son, 2020).

via Article 75, also provided a possible avenue The pandemic lawfare endeavour to under-

for involvement by the International Court of mine sovereign immunity, a cardinal principle

Justice. In its words, “Any question or dispute of international law and the comity of nations,

concerning the interpretation or application of also echoes debates waged over the passage of

this constitution which is not settled by negotia- the Justice Against Sponsors of Terrorism Act, a

tion or by the Health Assembly shall be referred bill designed to smoothen the way for legal suits

to the International Court of Justice.” This does for the families of victims of the 9/11 attacks.

not preclude the parties in dispute choosing oth- It amended the FSIA and the Anti-Terrorism

Act, effectively overruling “judicial construc- ifications”. (His initial support for the bill had

tions of those statutes that had foreclosed law- been given, he subsequently claimed, under a

suits against Saudi Arabia for its alleged support mistaken impression based on material from the

of the 9/11 attacks” (Daugirdas & Mortenson, White House.) Then Speaker Paul Ryan (R-Wis.)

2017: 156). Josh Earnest, White House Press also expressed a view that “some work had to be

Secretary, articulated the main argument against done to protect our service members overseas

JASTA, calling sovereign immunity “something from any kind of legal ensnarement that occur,

that protects the ability of the United States to any kind of retribution” (Kim & Everett, 2016Kim & Everett (2016). The source article does not provide a separate full bibliographic entry for this citation.).

work closely with countries all around the world. Most troubling to critics of the pandemic

And walking back on that principle would put lawfare approach is the risk posed by reciprocal

the United States, our taxpayers and our service retaliation. US officials face the prospect of the

lawfare juggernaut, including those who were members and diplomats at risk” (Earnest, 2016Earnest (2016). The source article does not provide a separate full bibliographic entry for this citation.). rather slipshod in informing the US public about President Barack Obama, for his part, the dangers of the novel coronavirus. Allowing urged members of Congress to realise that there lawsuits against China with Congressional apalready were “ways of addressing state-sponproval could see China, John Bellinger warns, sored terrorism.” Lawsuits could be institut- “retaliate by allowing lawsuits against the US ed, for instance, against designated sponsors of government or its officials in China for claiming terrorism. By accepting the premise of JASTA China had intentionally manufactured COV- “devastating” consequences would arise for the ID-19” (Bellinger, 2020Bellinger (2020). The source article does not provide a separate full bibliographic entry for this citation.). Rachel Esplin Odell of

Department of Defence, service members, those the Belfer Centre for Science and International

active in foreign affairs and the intelligence com- Affairs further underlines the dangers posed by

munities. “The United States relies on principles targeting PRC officials: “If applied to Chinese

of immunity to prevent foreign litigants and for- officials, such sanctions would likely invite swift

eign courts from second-guessing our counter- retaliation against US officials who themselves

terrorism operations and other actions that we dismissed the threat of COVID-19, shared in-

take everyday” (Obama, n.d.Obama (n.d.). The source article does not provide a separate full bibliographic entry for this citation.). US foreign policy correct medical information about it, or spread

and security decisions would, as an important false theories about its origins, such as the pres-

consequence, be privatised and become the pur- ident, vice president, and many governors and

view of litigants rather than that of the Executive members of Congress – including [Senator]

(Obama, 2016Obama (2016). The source article does not provide a separate full bibliographic entry for this citation.). Cotton himself ” (Odell, 2020Odell (2020). The source article does not provide a separate full bibliographic entry for this citation.).

JASTA also served to complicate interna- Odell also warns that using the Draft Ar-

tional relationships, even with close partners, ticles on State Responsibility in the context of

exposing them to litigation and, in doing so, lim- public health, a point enthusiastically advanced

iting “their cooperation on key national security by Introvigne and Kraska, is more than mildly

issues, including counterterrorism initiatives, at treacherous. Disease outbreaks can be unru-

a crucial time when we are trying to build coa- ly things, hard to monitor and track. The cus-

litions, not create divisions” (Obama, 2016Obama (2016). The source article does not provide a separate full bibliographic entry for this citation.). The tomary rule accepting that a state in breach of

bill was itself passed with reservations, with Sen- international law is required “to make full rep-

ate Majority Leader Mitch McConnell (R-Ky) aration for the injury caused” by that breach

claiming that it would have “unintended ram- has not featured in international health efforts.

The International Law Commission has added a of Congo, blame and forced accountability has

complicating factor: that any reparation would been a common theme. Behind pandemic law-

not cover “all consequences flowing from an in- fare’s thrust in targeting the PRC lies a motive of

tentional wrongful act”, only injury directly “as- using public health as a politicised vehicle, one

cribable to the wrongful act” (International Law that seeks to contain Chinese power even as it

Commission, 2001: 92). claims to hold it to account. The mechanism for

The deployment of rules-based arguments such liability lies in international laws that are

and lawfare suits has also encouraged Chinese portrayed as universally accepted, legitimised

commentators to revisit historical instances by consensus. Legal avenues and fora are being

of aggression, seeing such health narratives as used to pursue traditional power rivalries.

an attempt to perpetuate power inequalities. The narrative of pandemic attribution also

Debates about compensation were hard to di- paves the way, at least in a rhetorical sense, for

vorce from the historical context of humiliation a grounding of culpability in a manner Ho-fung

foisted upon China during the Century of Hu- Hung (2004) regards as parochial and “anti-glo-

miliation and the Opium Wars. “Britain and balist”. In his study of SARS and efforts to com-

China,” suggested The Economist (2017), “see bat it, Hung concludes that a coordinated, global

each other through a narcotic haze”. As a wide- response is far better than a national, anti-glo-

ly circulated comment on Twitter went: “Cool, balist one. Global cooperation, not blaming

great, you just pay us back for the Opium Wars” fractiousness, is preferable; empowered global

(Shumei, 2020Shumei (2020). The source article does not provide a separate full bibliographic entry for this citation.). President Xi Jinping, in an ad- institutions are desirable over weak ones (Hung,

dress in Hong Kong, that last outpost of British 2004: 19). In responding to COVID-19, pan-

Empire, referred to a poisoned legacy that en- demic lawfare has become the weapon of choice

feebled a state. “After the Opium War, China for the anti-globalists.

has been repeatedly defeated by countries which

were smaller and less populous” (Connor, 2017Connor (2017). The source article does not provide a separate full bibliographic entry for this citation.). References

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