Corona lawfare by the US against China: a useful remedy or an unhelpful distraction?

In essence, this text is an opinion statement. However, in view of the gravity of the issue, we are placing it on the landing page of our site

On April 21st, Missouri Attorney General Eric Schmitt initiated proceedings in federal District Court against the People’s Republic of China and some of its entities, such as National Health Commission, the Chinese Academy of Sciences, and the local governments of Hubei and Wuhan.[1] While relying on a 47-page complaint, General Schmitt is seeking recovery for the loss of life, human suffering and economic turmoil resulting from the COVID-19 virus as experienced by Missourians. According to General Schmitt, the Corona pandemic was caused by a failure to act by the Chinese authorities. 

The Missouri case is one of several such cases, including class actions, which have been brought in the US against China. The state of Mississippi has since joined the Missouri case. It is unlikely to be successful for the following reasons:  

First, the evidence mainly consists of US media reports which do not contain any views expressed by the Chinese side. Apart from a few Wechat messages, the complaint also does not refer to original Chinese sources. This amounts to hearsay, which is not admissible as evidence under Rule 802 of Federal Rule of Evidence. 

Second, foreign states, like China, enjoy sovereign immunity in US Courts under the US Foreign Government Immunities Act and in accordance with international law. General Schmitt has tried to circumvent this bar in three ways:

1. The complaint listed the Communist Party of China as a defendant, while claiming that “the Communist Party is not an organ or political subdivision of the PRC, nor is it owned by the PRC or a political subdivision of the PRC, and thus it is not protected by sovereign immunity”.[2]

This position is contrary to international law, according to which state immunity extends to all organs, components, and entities of the state, which, of course, also includes the Communist Party. 

Furthermore, the Secretary General of the Communist Party also serves as the head of state, who by definition enjoys the protection of state immunity. The actions challenged in the Missouri complaint are all attributable, either directly or indirectly, to the President of China. 

2. In addition, the complaint has invoked the commercial activities exception to sovereign immunity under the Foreign Sovereign Immunities Act 28 U.S.C. § 1605(a)(2) by claiming that the conduct which allegedly caused the pandemic was commercial in nature. These commercial activities allegedly included the operation of the Chinese healthcare system; commercial research on viruses conducted by the Wuhan Institute and the Chinese Academy of Sciences; the operation of traditional and social media platforms for commercial gain; and the production, purchasing and import and export of medical equipment.[3]

The complaint fails to identify which specific activities performed by which entity or entities should be characterised as ‘commercial activities’ within the meaning of this provision. Instead, it limits itself to making sweeping and generalised statements and therefore it does not meet the legal requirements of § 1605(a)(2).[4]

Since the complaint fails to identify concrete activities, it cannot be established whether these activities meet the test developed by the US Supreme Court in Verlinden B.V. v. Central Bank of Nigeria,[5] according to which a foreign state engages in commercial activities when it exercises powers that can also be exercised by private citizens. 

Missouri invokes the third clause of § 1605(a)(2) which confers jurisdiction over actions that are “based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere that causes a direct effect in the United States”. It fails to demonstrate which direct effects the activities it described in general terms may have had in the United States. In Republic of Argentina v. Weltover,[6] the US Supreme Court stated that in order to be ‘direct’ the effect must follow as an immediate consequence of the foreign state’s activity. Missouri has not showed that the activities it listed did have direct effects in the US which could be characterised as the immediate consequences of activities performed by China or its instrumentalities. Furthermore, since all activities complained of took place within China they are covered by the Act of State doctrine, according to which states enjoy immunity for acts performed within their territory. The importance of this doctrine was recognized by the US Supreme Court in Underhill v. Hernandez,[7] where Chief Justice Fuller for a unanimous Court stated that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”

Therefore, the Act of State doctrine provides China with immunity for all ‘commercial’ acts referred to by Missouri. 

3. Finally, Missouri has invoked the tortious conduct exception laid down in § 1605(a)(5) by claiming that the activities which allegedly caused the pandemic amounted to torts occurring in the US. It has not identified any damage or loss of property which resulted from the acts that were listed in the complaint, let alone demonstrated that those occurred in the United States, to which § 1605(a)(5) is limited, according to the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp.[8]

Third, in the unlikely case that the Court would refuse to grant China immunity, the claim would face insurmountable barriers at the merits stage. Thus, the complaint clearly interferes with US foreign policy towards China, which currently amounts to a balancing act involving highly sensitive trade negotiations, and is therefore bound to be declared a non-justiciable political question. Courts traditionally address executive decisions taken in the realm of foreign relations with deference.[9]

Furthermore, the outbreak of the Corona virus, which was declared a Public Health Emergency of International Concern by the WHO, is covered by the defence of force majeure, or alternatively, the defences of necessity and distress, which absolve China from state responsibility.  

In the meantime Republican Senator Tom Cotton (Arkansas) and Republican Representative Dan Crenshaw (Texas) have introduced legislation to amend the Foreign Government Immunities Act, which, if enacted, would deprive China of immunity in Covid-19 cases.[10] This it would do with retroactive effect to January 1st, 2020, while it would also apply to cases which are already pending, such as the suit brought by Missouri. Congress is prohibited from passing such ex post facto laws by Article 1 § 9 of the US Constitution. In addition, even if a later act can set aside an earlier act under the lex posteriorrule, it cannot revoke the Act of State doctrine, because it has constitutional underpinnings. This was made clear by Justice Harlan for an almost unanimous US Supreme Court in Banco Nacional de Cuba v. Sabbatino.[11] Justice Harlan emphasised that the separation of powers prescribes the immunity of foreign states for acts performed within their territory. Since the Act of State doctrine has its 

basis in the Constitution, it can only be set aside or amended through a Constitutional amendment and not through an Act of Congress. 

It will be clear from the above, that these initiatives will go nowhere. However, it should be borne in mind that the cases have not been brought to achieve victory in a court of law, but in the court of public opinion. They are meant to discredit China in order to draw attention away from the handling of the corona pandemic by US authorities in view of the November elections. Therefore, the cases are not part of regular litigation but of lawfare. To beat the virus, close cooperation across borders is necessary. Lawfare is not going to help. 

Tom Zwart: Professor of Cross-cultural Law, Utrecht University, Director of the Cross-cultural Human Rights Centre, Vrije Universiteit Amsterdam

Qinxuan Peng: Researcher, China Top Think Tank-Wuhan University Institute of International law

[1] https://htv-prod-media.s3.amazonaws.com/files/prc-complaint-1587488259.pdf

2 Par. 19 of the Complaint. 

3 Par. 40 of the Complaint.

4 Hoban v Sovereign Republic of Peru, 204 F. Supp. 3d 1368 (S.D. Fla. 2016); Harris v Vao Intourist, Moscow, 481 F Supp 1056 (1979, ED NY).

5 461 U.S. 480, 10 S.Ct. 1962, 76 L.Ed.2d 81 (1983).

6 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992).

7 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897).

8 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed. 2d 818 (1989).

9 E.g. Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984).

10 https://www.cotton.senate.gov/?p=press_release&id=1352

11 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed 2d 804 (1964).

CCHRC participates in “Guaranteeing the Right to Life in Epidemic Prevention and Control” Conference

CCHRC’s Peter Peverelli has participated in the conference on “Guaranteeing the Right to Life in Epidemic Prevention and Control” organized by the Human Rights Institute, Southwest University of Political Science and Law, May 9, 2020. The Chongqing-based participants attended physically, while those from other parts of China or abroad participated online. The conference was an overall success, in terms of richness of content and from a technological perspective. The screen shot shows how well the physical and virtual participants could interact.

Screen shot made during the conference

CCHRC has reported on some of the public discussions about the various ways governments are trying to cope with the COVID-19 epidemic that have been going on our New/opinion page. The May 9 conference was the first international academic conference discussing a broad spectrum of political and philosophical aspects of the impact of a pandemic as the world is experiencing right now.

The remainder of this item is a summary of the topics discusses kindly provided by the Human Rights Institute.

The May 9 conference was the first meeting in a series of international seminars on “Global epidemic prevention and control and human rights protection”, under the guidance of China Society for Human Rights Studies, featuring “Guaranteeing the right to life in epidemic prevention and control”. The conference consists of two topics, “The value hierarchy and legal protection of the right to life” and “Guaranteeing the right to life of vulnerable groups in the context of the epidemic”. COVID-19 is undoubtedly the first worldwide catastrophe that mankind has faced together. The reason why we call it a catastrophe is it will take countless fresh lives.

Facing such an unprecedented epidemic, to save the lives of those who are helpless is the primary task that all human should work for. Fifteen experts and scholars from five countries attended the conference, which provided an in-depth discussion on six issues, including the concept of “life first”, the nature of the right to life, the balancing of the right to life and other rights, the protection of vulnerable groups, the positive responsibility of governments and scientific prevention of the virus. While this meeting brought together the above-mentioned consensus, the participating scholars also offered some wonderful understandings from their respective fields.

I. With regard to the first subtopic, “The value hierarchy and legal protection of the right to life”, the professors have discussed from different perspectives.

1. The common position of human society for “life first”

According to Professor Han Dayuan of Renmin University of China, the so-called supremacy of life means that the value of life is higher than everything else, and life is the measure of all things, and there is nothing in the world more precious than life. Professor Zhuo Zeyuan at the Central Party School believes that epidemic prevention and control must be aimed at maximizing the protection of life. According to Professor Qi Yanping at Beijing Institute Of Technology, advocating that the right to life is paramount and essential to the cultivation of humanity, the promotion of ethics and the identification of the way for development. Professor He Zhipeng at Jilin University believes that, in the broader society of the future, respecting life and health and prioritizing these rights in situations where the life and health of social groups and the individual’s own claims are in conflict is an effective means to protect human rights more practically. Professor Cheng Zhimin at Hainan University argues that the attention we have paid to the right to life so far is not in place, and that perhaps too much attention has been paid to rights that appear to be more advanced, while ignoring the basis or ontological significance of the right to life.

Professor Liu Huawen at the Chinese Academy of Social Sciences believes that the right to life and health is not a simple human right and needs to be given higher attention and protection. Professor Li Zhongxia at Shandong University believes that the right to life as a fundamental right is the foundation of the constitution, the highest fundamental right, and is related to human dignity. Prof. Zhang Yonghe, a professor at Southwest University of Political Science and Law, believes that we must value the life of each individual, which is about the bottom line of humanity, and if we cannot keep this bottom line, we will not be a real human.

2. The right to life, not just a negative right

According to Professor Chang Jian of Nankai University, the right to life must not be understood only in a negative sense, but should be further extended to a positive sense. Professor Han Dayuan at Renmin University of China believes that in modern society, the right to life cannot depend only on the right to freedom, but needs to be realized through the active function of the state. According to Qi Yanping, a professor at Beijing Institute of Technology, in this battle against the epidemic, it is clear that the right to life, which needs to be discussed, must be discussed in the context of the universal connection and balance of social conditions. According to Professor He Zhipeng at Jilin University, if we refer to the theory of natural rights, it could not explain the arbitrariness of people’s actions or errors of judgment, especially the perception of their actions’ consequences, which may put themselves and society in danger. Zhang Han, a PhD candidate at Southwest University of Political Science and Law, believes that the criteria for classifying positive and negative rights are not absolute, and we cannot just focus on the negative obligations of the state, but must also require the state to fulfill its positive obligations.

3. Active responsibilities of the government 

Jayanath Colombage, Director of Pathfinder Foundation of Sri Lanka Center for Indo-Lankan Initiative and Law of the Sea discussed the relationship between the government and the right to life. He believes that the Sri Lankan government and the Chinese government have many similarities in understanding the right to life. The Sri Lankan government also follows the concept of “the right to life first” to formulate anti-epidemic measures. Professor Han Dayuan at Renmin University of China believes that the right to life is a right with legal effect, which on the one hand creates the obligation of the State to protect citizens’ right to life and on the other hand provides positive conditions for the protection of the right to life. Prof. Cheng Zhimin at Hainan University believes that life is not just being, but well-being, it must be a good life. The government’s inaction actually violates the social contract it is supposed to assume and results in a zero-sum game.

According to Professor Zhuo Zeyuan at the Central Party School, the government’s compulsory measures to protect people’s right to life in the epidemic, are just a guarantee of the right to life for the each person in the society, as well as the right to life of others. Professor Liu Huawen at the Chinese Academy of Social Sciences believes that China’s current epidemic prevention work has achieved a stage-by-stage victory and has two distinct characteristics: “people-centered” and “scientific prevention and control, according to law”. Zhang Han, a PhD candidate at Southwest University of Political Science and Law, believes that the state only performs its duties in the sense that it does not violate the “right to life”, which in fact does not fully perform its obligations, so we still needs to ensure the people’s minimum material supplies through positive actions in order that they can maintain the life they are all entitled to.

II. The second sub-topic, “Guaranteeing the right to life of vulnerable groups in the context of the epidemic”, was discussed from a different perspective by the professors.

1. Protection of vulnerable groups in epidemic prevention and control 

According to Professor Zhuo Zeyuan at the Central Party School, there is a complex structural relationship between the right to life of individuals and the right to life of others. The right to life of every human being is not something that can be exercised or enjoyed arbitrarily for the sake of the lives of family members, neighbours, colleagues and strangers.Christian MESTRE, Honorary Dean & Professor at University of Strasbourg,from a legal approach, believes that the protection of vulnerable groups in epidemic prevention and control must focus on the shortcomings of their ability to withstand aggression, while Muhammad Naseem, Director of University of Lahore Center for Sustainability Research and Practice, believes that the epidemic prevention policy in Pakistan faces a complex situation. There are many types of social groups. How to protect their right to life is an important part of epidemic prevention and control.

Professor Chang Jian at Nankai University believes that under the epidemic, the protection of vulnerable groups mustnot only be based on established rules, but also increase the supply of needed resources. Professor Han Dayuan at Renmin University of China believes that the words and ideas of “life is priceless, life is equal and life is dignified” should be reflected in the concrete practice of preventing and combating epidemics. 

There is no difference in the value of life from a freshly born baby to a 100+ year old person. According to Professor Qi Yanping at Beijing University of Technology, it is actually a matter of choice between the critically ill patients. To choose one necessarily means to give up another’s right to life, and the choices available here are often fraught with contradictions. Professor Qian Jinyu at Northwest University of Political Science and Law believes that in the context of large-scale urbanization, the primary task and key to the prevention and control of the corona virus epidemic is to ensure that the prevention and control of urban epidemics is effective and the right to survival and security of the urban vulnerable groups can be guaranteed.

Professor Li Zhongxia at Shandong University believes that epidemic prevention and control may result in interventions on the right to life, such as abandonment of the elderly, treatment of patients with other diseases, etc., which need to be carefully weighed by the principle of proportionality. On this subject, Prof. Zhang Yonghe, a professor at Southwest University of Political Science and Law, believes that there is no way to draw a line between the weak and strong in terms of life. A civilized society is the one in which the weak can be best protected, and only if the weak can be equally protected, can anyone be expected to be protected as well.

2. Careful weighing of the conflict between the right to life and other human rights

Peter Peverelli of the Cross Cultural Human Rights Centre at Vrije Universiteit Amsterdam in Netherlands, argues that it may be difficult to resolve conflicts on fundamental rights among different cultures only standing at their own positions. According to Professor Han Dayuan at Renmin University of China, when the value of the right to life conflicts with other rights and freedom, China insists on the goal that life first and the right to life first, and has made tremendous investments regardless of the cost.

Professor Qi Yanping at Beijing Institute of Technology believes that life and the right to life are in a complex system supported and maintained by external resources, energy, systems and conditions, and that life and the right to life cannot be paramount when divested from this social system. Professor Chang Jian at Nankai University believes that under the special circumstances of a major epidemic, the protection of the right to life will face a series of conflicts, including conflicts between the protection of the right to life and other means of realizing human rights, conflicts with other means of realizing the public interest, and conflicts between different subjects and different stages of realization. Professor He Zhipeng at Jilin University believes that in the situation of rights conflict, human rights can be well protected only if they are ranked according to the fundamental, important and influential nature with scientific basis and careful consideration, which is scientifically proven, convincing to the public and truly effective in administrative services.

3. Scientific epidemic prevention

Professor Chang Jian at Nankai University believes that in the course of China’s fight against the corona virus epidemic, resources can be reasonably allocated and efficiently utilized through the establishment of a hierarchical and categorical management mechanism to reduce costs and expenses; the development of Internet technology provides many feasible alternatives to interpersonal communication in the field; and in order to resume production and livelihood activities in the context of the long-term prevention and control of the epidemic, China has established a regularized epidemic prevention and control mechanism. Professor Han Dayuan at Renmin University of China believes that the development of modern science and technology should be viewed rationally, and that science and technology is a double-edged sword in any case, bringing convenience to human beings on the one hand, and “disaster” to human life on the other, challenging human lifestyle and dignity. Professor Liu Huawen at the Chinese Academy of Social Sciences believes that to scientifically understand and respond to the epidemic, fundamentally, it should be based on scientific understanding, not on ideology or political system.

In those presentations, we also found that there were different cultural perspectives, different views on life and different epidemic prevention and control measures.

1. Different dimensions of the “life first” concept

From a philosophical perspective, Professor Cheng Zhimin at Hainan University explores the ontological meaning and sociality of the right to life, and based on this, he proposes a demand for a political system. Prof. Han Dawuan at Renmin University of China and Prof. Li Zhongxia at Shandong University argue from the perspective of the right to life as a fundamental constitutional right. Professor He Zhipeng at Jilin University discusses the priority of “respect for life and health” from the perspective of conflicting rights. Professor Zhuo Zeyuan at the Central Party School discusses the meaning of the right to life from the perspective of epidemic prevention and control. I, on the other hand, explores what we should really think about humanity and life based on the commensurability of the two systems of rational perception of life. Professor Qi Yanping at Beijing Institute of Technology, starting from the legal arguments of the right to life, pointed out that in practice of the rule of law, the legitimacy of the right to life claim needs to be based on the normative logic and harmony.

2. Multiple attributes of the right to life

Peter Peverelli of the Cross Cultural Human Rights Centre at Vrije Universiteit Amsterdam in Netherlands explores the different approaches to the value of life between Sweden and China from a different cultural perspective, using the 7-Dimension Cultural Model. And Professor He Zhipeng at Jilin University believes that the right to life is under the theory of natural rights, there are certain misunderstandings. Professor Han Dayuan of Renmin University of China argues from the dichotomy between the “right to freedom” and the “right to society”. Qi Yanping, a professor at Beijing University of Technology, believes that in the theoretical discussion of the fight against the epidemic, it is clear that the primary and main focus is the treatment of biological life in a narrow sense. According to Professor Chang Jian of Nankai University, the right to life is, in a positive sense, the “right to live”. Zhang Han, a PhD candidate at Southwest University of Political Science and Law, believes that there is a certain “gulf” between the right to life and the right to subsistence.

3. Diversified protection of vulnerable groups

Professor Christian Meister of the University of Strasbourg, France, sheds light on the crisis of legal protection of vulnerable groups in the context of the epidemic, based on the shortcomings of their resistance to the virus. Professor Zhang Yonghe at Southwest University of Political Science and Law, based on the idea of equality of life for all, opposes the classification of the weak and the strong. Professor Chang Jian of Nankai University, on the other hand, discussed the protection of vulnerable groups from the perspective of resources supply. Professor Zhuo Zeyuan at the Central Party School, based on the social connection to the life of family, neighbours, colleagues and strangers, pointed out that the right to life of every person is not something that can be arbitrarily exercised or enjoyed. Professor Qi Yanping at Beijing Institute of Technology argues that the protection of vulnerable groups cannot be isolated from the mutual support of specific social conditions. Professor Qian Jinyu at Northwestern University of Political Science and Law argues that the discussion starts from the dilemma of large-scale urbanization governance. Professor Li Zhongxia at Shandong University, on the other hand, believes that the prevention and control of the epidemic may result in interference with the right to life, such as the abandonment of the elderly, the treatment of patients with other diseases, etc.

4. Cautiously inspecting epidemic preventive measures

A diversified society provides different perspectives for us to look at these issues. Prof. Li Zhongxia at Shandong University and Prof. Qian Jinyu at Northwest University of Political Science and Law, respectively, conducted researches on the guarantee of the right to life in epidemic prevention measures from the perspective of risk society and urban governance. Professor Liu Huawen at the Chinese Academy of Social Sciences, for his part, viewed the epidemic from the perspective of “morality, law and nature”, arguing that the global spread of the epidemic posed a worldwide challenge and that the successful response to the epidemic depended on how to overcome the shortcomings in the fight against it. According to Professor Chang Jian of Nankai University, there are three pathways to resolving conflicts over the right to life in major epidemics: a rules-based pathway can provide a prioritization of rights and interests, a resource-based pathway can provide the resource conditions needed to resolve these conflicts, and a mechanism-based pathway can provide an integrated solution that takes into account rights and interests. Professor Qi Yanping at Beijing University of Technology argues that the legitimacy of the claim on realistic right to life does not lie in its abstract and absolute priority, but in its reasonable acceptability arising from its mutual support with specific social conditions and its logical self-consistency within the legal framework.

Overall, this discussion has elicited so many reflections, both theoretically and in practice, that contribute to the discussions about guaranteeing the right to life. The epidemic is not over, nor is our thinking about life. At this time when all mankind is living together, we need to join hands to fight the epidemic, and there are still many issues in epidemic prevention and control that deserve our consideration. Our discussions have just begun and we are looking forward to the next seminar. However, in spite of the success of this conference, we are looking forward to the next time we can all meet in person again and interchange formal discussions with informal one during the breaks, lunches and dinners.

CGTN, the international edition of China Central Television also covered this conference.