A SovereignPH.com EXCLUSIVE
A survey of Covid-19 implications from an international perspective
by Adolfo Quizon Paglinawan
Investigating the letters of the law
While China is making every effort to boost the physical and spiritual capacity of the world to overcome the pandemic and economic crisis, the US and its allies are hard at work to drown out the good news, divert from its colossal failures in containing the pandemic in their homelands by the blame-game directed at China.
The US publication Business Insider published on April 26, 2020 an article titled “A 57-page memo urged GOP campaigns to blame China for the coronavirus pandemic and insist the term ‘Chinese virus’ isn’t racist,” in other words don’t defend Trump and just attack China.
The Trump campaign has gone on to propagate the fake news on China as early cover up of epidemic, Wuhan Institute of Virology as source of bioengineered bio-weapon, sue for trillions in damages for China’s responsibility (even the Australian Prime Minister is recruited into the disinformation campaign), and Trump himself spouting the outrageous line of seeking damages from China.
CBS News broadcast that the state of Missouri became the first to sue the Chinese government over the corona virus pandemic followed by Mississippi, and possibly a spate of class action alleging the communist country did not do enough to stop the deadly outbreak.
At Capitol Hill, Senators Tom Cotton and Josh Hawley are leading legislation to strip China of its sovereign immunity, apparently based on the 2016 Justice Against Sponsors of Terrorism Act (JASTA).
Alas, the infodemic turns into lawfare.
Jessica Chen Weiss surveyed for Washington Post several experts on whether legal efforts are likely to bear fruit, what risks they run and how China is likely to fire back.
Chimène Keitner on sovereign equals
Let us first take up a position from someone who is a former diplomat, Chimène Keitner of Alfred & Hanna Fromm professor of international law at University of California Hastings Law in San Francisco and a former counselor on international law at the State Department.
Keitner saysunder international law, countries are sovereign equals. This means that one country can’t ordinarily exercise jurisdiction over another.
“The spate of private class-action lawsuits filed against China for allegedly concealing the initial outbreak of a novel corona virus neglect this basic principle, and aren’t likely to succeed.
“There is also no realistic possibility for the state of Missouri to obtain a favorable judgment and force China to pay damages.
At most, there will be a legal battle in U.S. courts about whether suing the Chinese Communist Party comes under the Foreign Service Immunities Act (FSIA) — which codifies the immunity of foreign states from civil suits in U.S. courts, subject to limited exceptions that do not apply here.
“Interpreting or amending the FSIA to allow these suits could prompt other countries to allow reciprocal claims against the United States.
It could also deter foreign-owned companies from doing business in the United States or using U.S. banks out of fear that their assets could be seized.”
Jacques deLisle on immunity for foreign states
Next on the survey is from a think tank. Jacques deLisle is a Stephen A. Cozen professor of law, professor of political science and director of the Center for the Study of Contemporary China at the University of Pennsylvania, and director of the Asia Program at the Foreign Policy Research Institute.
According to DeLisle, efforts to use U.S. courts to hold China accountable for corona virus-related harms are legally flawed and politically fraught.
“U.S. law — following international law — generally grants foreign states immunity. Exceptions exist for commercial activities with direct effects in the United States, wrongful acts (not just harmful consequences) occurring in the United States, and state-sponsored terrorism. But 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 U.S. citizens in the United States or is liable for very indirectly inflicted injuries.”
Alex Wang on Republican strategy
Alex L. Wang, a professor of law at University of California at Los Angeles School of Law notes that China is ahead of the roll as Chinese lawyers have already filed corona virus lawsuits against the U.S. government.
One lawsuit alleges a US government cover-up, and that Covid-19 originated in the U.S. Another suit seeks damages for reputational damage caused by President Trump’s use of the phrase “Chinese virus.”
Wang adds: “Republicans in Congress have drafted at least four bills apparently spurred by a 57-page National Republican Senatorial Committee strategy memo that urged Republicans to ‘attack China’ and portray Democrats as ‘weak on China.’
“Expect to see retaliatory lawsuits on US Covid-19 failures leading to new cases in China from those returning to China, as well as on climate change, military interventions and other issues.
The GOP strategy memo however suggests that Republicans paint concerns about such discrimination as ‘political correctness,’ evincing an unwillingness to hold China to account.”
Taisu Zhang on retaliatory tactics
Taisu Zhang, is a professor of law and history at Yale Law School who has written on comparative legal and economic history, private law theory, and contemporary Chinese law and politics.
Zhang says“If Beijing refuses to respond, some of China’s significant economic assets in the United States could be vulnerable if the lawsuits proceed. What’s more likely is that Beijing will work to have the lawsuits dismissed — but also line up Chinese firms to sue the U.S. government in Chinese courts as a political counter measure. After all, officials in Beijing can argue, quite plausibly, that the U.S. federal government has also been highly negligent on coronavirus.
“Beijing could claim, for instance, that the U.S. mounted an extraordinarily slow and inept response to the pandemic, with deeply inadequate testing and little federal coordination and guidance even after it was clear the corona virus was spreading in multiple U.S. locations.
“The U.S. could therefore find itself in Chinese court facing accusations of re-exporting the virus and causing economic collateral damage. This kind of lawsuit would be just as frivolous as its American counterparts, and even more materially meaningless, when there are far fewer U.S. government-owned economic assets operating in China than there are Chinese state-owned assets operating in the United States.
“But if the point is to seek retaliatory humiliation in the eyes of the Chinese public or the international community, then this could be an attractive path for Beijing to follow.”
John Bellinger on lawfare
But so much for the letter of the law. Lawfare is not about the rule of law.
Wikipedia has a definition. “Lawfare,” in fact, “is the misuse of legal systems and principles against an enemy, such as by damaging or de-legitimizing them, tying up their time or winning a public relations victory.
“The term is a portmanteau of the words law and warfare.”
John Bellinger III who, served as legal adviser for the Department of State from 2005–2009, and as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, writes for the Lawfare Institute in cooperation with Brookings.
Before that, he was Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001. Presently he is a partner in the international and national security law practices at Arnold & Porter Kaye Scholer LLP in Washington, DC and an Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations.
His article entitled “Suing China Over the Coronavirus Won’t Help, Here’s What Can Work” also appeared in Washington Post , cautioned that whatever political temptation allowing lawsuits against China or lifting its immunity in the heat of an election year, Congress should resist doing because it would be a mistake that the U.S. government is likely to regret it later.
Bellinger marks where the rule of law applies:
“Sovereign immunity is based on reciprocity. The United States respects the principle of sovereign immunity not as a favor to other countries but because we expect other countries to respect and protect the immunity of the United States and its officials in their countries.
“The United States has protested vehemently when other nations have allowed investigations of the U.S. government or its officials for controversial military actions.”
If Congress allows lawsuits against China to proceed in the US, he says China may well retaliate by allowing lawsuits against the U.S. government or its officials in China for claiming that China had intentionally manufactured Covid-19.
Bellinger reminded Congress that, after voting for the Justice Against Sponsors of Terrorism Act in 2016, some Republican lawmakers immediately expressed misgivings. Senate Majority Leader Mitch McConnell (R-Ky.) said removing the immunity of foreign governments could have “unintended ramifications” and tried to blame the Obama administration for “failure to communicate early about the potential consequences.”
But Bellinger says opposing lawsuits against China does not mean that the U.S. government should not hold the Chinese government responsible in areas where lawfare can root.
“Legal immunity does not mean a lack of accountability,” he quips.
“The Hawley bill, for example, would mandate a government investigation into China’s role in concealing or distorting information about covid-19.”
Better still, he suggests, would be a bipartisan commission, modeled on the 9/11 Commission, with a mandate to investigate the causes and spread of corona virus and U.S. preparedness for and responses to the pandemic. It could make recommendations toward preventing and addressing future pandemics.
The United States should also publicly demand, pushing other governments and international bodies, that China must be transparent and cooperative with respect to global health issues in the future.
Assertive U.S. diplomatic action is more likely to produce meaningful results for Americans than politically attractive but ultimately feckless lawsuits and battles over sovereign immunity.
Robert Williams on spectacular backfire
Robert D. Williams, a senior research scholar, lecturer, and executive director of the Paul Tsai China Center at Yale Law School, asserts legislation to strip China’s sovereign immunity for Covid-19 could backfire spectacularly.
“It’s easy to imagine that China would refuse to participate in legal proceedings if named as a defendant in a lawsuit under one of the statutes now being floated in Congress. That’s what Beijing did in the South China Sea arbitration brought by the Philippines, a judgment China continues to reject with impunity.
“But even if China didn’t show up to court, plaintiffs would still have to prove that the Chinese state “discharged a biological agent” or “deliberately concealed” the virus, according to language employed in two of the Senate bills. That could be a steep challenge, as would any effort to enforce a favorable judgment by seizing Chinese assets in the United States.
“The United States’ rule-of-law system and its global presence are strengths that can also be vulnerabilities. Lacking the support of a multilateral coalition behind Congress’s pursuit of accountability through litigation, Washington could see retaliation by Beijing that won’t be subject to the same “due process” constraints that apply in U.S. courts.”
Wagging weapons of mass destruction
The most respected Lancet medical journal issued a statement with a group of 27 prominent public health scientist from outside China saying: “We stand together to strongly condemn conspiracy theories suggest that Covid-19 does not have a natural origin” and praise the “remarkable” work of Chinese health professionals.
The RT news channel invited British former parliamentarian George Galloway to discuss the “Wag the Dog” scenario; that is, will all this noise which apparently over 50% of Americans now buy lead to the “Deep State” using the calumnies to start physical conflict with China in an ultimate distraction reminiscent of Clinton’s bombing of Yugoslavia.
Have we all in just 19 years just forgotten Bush’s Iraq War in order to divert attention from 9/11 attack on the World Trade Center in New York?
Where in heaven’s name were Saddam Hussein’s weapons of mass destruction?
(To be continued…)
Ado Paglinawan is a daily commentator at Radyo Pilipinas1, and a regular columnist at the country’s newest daily news website SovereignPH.com and its partner magazine The Sovereign. He is a former Philippine diplomat, serving in the Philippine Embassy in Washington DC and Permanent Representative to the United Nations in New York as press attaché, spokesman and special assistant to Ambassador Emmanuel N. Pelaez. He has served a strategic consultant to Agriculture Secretary Luisito Lorenzo, Tourism Secretary Richard Gordon and Finance Secretary Roberto de Ocampo. He studied for 15 years at San Beda College from grade 1 to 4th year college majoring in English and Philosophy, minor in political science and history. He is a veteran of the First Quarter Storm, participating as president of the College Editors Guild of the Philippines. Ado has taken continuing studies in world politics and diplomacy, international public relations, information technology and remote sensing, and Eastern Christianity and Islamic studies, from various universities in Washington DC.