Considering Domestic and International Frameworks for Analyzing China’s Potential Legal Liability in the Aftermath of COVID-19

46 Pages Posted: 13 May 2020

Date Written: May 11, 2020

Abstract

The COVID-19 pandemic has imposed a human and economic cost on the world that was virtually unimaginable only a few months ago. Credible investigative sources agree with virtual unanimity that COVID-19 emerged from Wuhan in China, either as a result of human wildlife consumption at wet markets or from a laboratory that studies diseases in bats. China has long been aware of the risks that both scenarios presented. Even more disturbingly, however, China may have hid valuable information about COVID-19 that could have significantly improved the international community’s ability to respond to, and fight, the pandemic. China’s apparent obfuscation, along with the alleged failures of other groups such as the World Health Organization, has arguably resulted in trillions of dollars in liabilities, millions of sicknesses, and hundreds of thousands of lost lives—with those numbers mounting daily.

The emergence of COVID-19 within China and the Chinese government’s failure to promptly and transparently provide needed information to the international community raises the question whether the Chinese government and/or its officials could be held civilly or criminally liable under international law or U.S. domestic law. While China arguably violated numerous international conventions and obligations, and while there would certainly be liability according to U.S. common law principles if this scenario involved a private party, the reality is that neither is likely adequate to impose liability on China under the current state of the law, meaning the international community would need to create a new framework for imposing international legal liability—something the U.S. should be very weary of—or the U.S. would need to revoke China’s sovereign immunity, something that lawmakers are currently considering. Either way, the COVID-19 outbreak demands serious consideration of how the legal system could—and whether it should—be updated to account for the current crisis and any future pandemics.

This article discusses the Chinese government’s potential violations of existing international law and international norms, as well as potential theories of civil and criminal liability arising from the damages caused by the COVID-19 pandemic. Part I provides an introduction. Part II provides a background of key facts as currently understood and lays out the role that the Chinese government apparently played in enabling COVID-19 and failing to contain its global spread. Part III discusses the manner in which China may have run afoul of various treaties and civil tort principles, as well as the difficulties with imposing civil liability for these violations. Part IV articulates theories about how traditional criminal liability might apply to China and why international criminal law is generally too limited in scope to impose liability. Finally, Part V suggests a potential framework for ensuring accountability for the COVID-19 outbreak and any future pandemics.

This article concludes that although litigation—and civil and criminal liability both at the domestic and international level—can be effective tools in the diplomatic arsenal of nations, practical realities and the current legal framework limit China’s potential liability arising from the COVID-19 crisis. Nevertheless, this paper could serve as a starting point for discussing whether a new framework is necessary.  

Suggested Citation

Joshpe, Brett, Considering Domestic and International Frameworks for Analyzing China’s Potential Legal Liability in the Aftermath of COVID-19 (May 11, 2020). Available at SSRN: https://ssrn.com/abstract=3598614 or http://dx.doi.org/10.2139/ssrn.3598614

Brett Joshpe (Contact Author)

Joshpe Mooney Paltzik LLP ( email )

United States

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