[Editor's note] On 24 April 2020, the People’s Daily published an article written by Dr. HUANG Huikang, Professor of Law at the Institute of International Law of Wuhan University and Member of the International Law Commission of the United Nations. The author points out that, naming a new virus should strictly follow the updated guidelines set out by WHO in its 2015 Best Practices for the Naming of New Human Infectious Diseases. The core value of the new guidelines is to avoid stigmatization. To the end, geographical location, human name, animal or food population, and terms involving culture, population, industry or occupation and inciting excessive panic must not appear in virus and disease naming. He argues that labelling SARS-CoV-2 with a country or a region is irresponsible and unacceptable. Blaming China for the Covid-19 outbreak does not have any ground on international law and such move is counterproductive and even dangerous. The claims of US politicians to hold China accountable for COVID-19 are legally untenable either. In accordance with the principles of sovereign equality and state immunity, any legal action against China in the US courts must be objected. This is the English version of the article.

At the moment, COVID-19 has developed into a global pandemic. In the face of such a rare public health crisis, all countries should have helped and cooperated with each other, however, some anti-China politicians and media in the United States have successively thrown out absurd arguments against China in an attempt to politicize and stigmatize China with COVID-19. Moreover, some concocted “claims” against China were filed with US federal courts. This public opinion warfare deliberately initiated by the United States has tended to spread to the legal field. As a professional who has long been engaged in international law study, the author believes that it is necessary to lift up our voice from the legal point of view: Stigmatizing China on COVID-19 is without any justification.

I

For the naming of diseases or new viruses, the World Health Organization (WHO) has established clear and uniform applicable legal norms, which should be strictly observed by all countries. Any act of associating COVID-19 with a particular country or region is either ignorance or deliberate violation of law.

Based on the lessons learned from the history of disease naming, particularly the tremendous negative effects from the naming of the Middle East Respiratory Syndrome (MERS) in 2012 and the “Swine Flu” in North America in 2009, WHO, together with the World Organization for Animal Health and the United Nations Food and Agriculture Organization (UNFAO), updated the guidelines for virus naming in its Best Practices for the Naming of New Human Infectious Diseases published on May 8, 2015, and explicitly stated that geographical location, human name, animal or food population, and terms involving culture, population, industry or occupation (such as an army) and inciting excessive panic must not appear in disease naming. WHO further explained the fundamental reason for updating the virus naming guidelines, that is, “a number of new human infectious diseases have emerged in recent years, and using names such as “Swine Flu” and “MERS” had produced an unexpected negative effect due to its stigmatization of certain groups or economic sectors.” The recent surge in oral and even personal attacks on Asian Americans in the United States, triggered by the stigmatization of COVID-19, is the latest example of such effects. Thus, the core value of new virus naming guidelines is to avoid stigmatization.

In accordance with the 2015 guidelines and recent global public health practices, WHO announced on February 11, 2020 that the novel coronavirus-infected pneumonia would officially be named COVID-19. Specifically, “CO” represents corona, “VI” represents virus, “D” represents disease, and “19” represents the year 2019 of disease discovery. Meanwhile, because the coronavirus that caused COVID-19 is highly related to the coronavirus that caused SARS, it was named “SARS-CoV-2.” In this regard, WHO Director-General Tedros Adhanom Ghebreyesus emphasized, “Properly naming new diseases is important to preventing people from using other inaccurate or stigmatized names.” “We want a name that does not allude to any geographic location, animal, individual, or group.” Michael Ryan, who heads WHO’s emergency health programs, also pointed out that the message conveyed by WHO has always been clear, that is, viruses have no national boundaries and make no distinctions in race, color and wealth. “The H1N1 pandemic in 2009 originated in North America, but we didn’t call it ‘North American Flu’. When we encounter other viruses, we use the same naming method to avoid association with any region.” In fact, the naming of SARS-CoV-2 and COVID-19 has been widely accepted by the international community. Labelling SARS-CoV-2 with a country or a region is irresponsible and unacceptable. Stigmatization in virus naming is not a right tool to cover any government’s failures in response to the epidemic situation in its own country.

II

In line with the stigmatization of China in respect to the naming of SARS-CoV-2, Secretary of States Mike Pompeo and some other politicians also attempted to shift the responsibility for the spread of the epidemic in their countries upon China. For instance, John Cornyn, Kevin McCarthy, Chuck Grassley and some others publicly peddled “China’s Responsibility Theory” and incited “prosecutions” of China. Republican congressmen Jim Banks even plotted to confiscate the US treasury bonds purchased by China, professing that “We need to start by forcing China to pay for the burden and cost brought about by SARS-CoV-2 to the United States... The president should force China to reduce a large portion of US debts.” For such a plot, we must say that the claims of US politicians to hold China accountable for COVID-19 are legally untenable. 

First, the origin of SARS-CoV-2 has yet identified by WHO and the international scientific community, and international law has no provision of state responsibility for the origin of a virus either. It is important to explore the source of the virus, but this job relies on the sustained efforts of scientists and should not be politicized. Even if the origin of the virus is identified in the future, there is neither a treaty nor a precedent in international law that requires the country where the virus originates to be liable for the loss of other countries. As the objective existence of nature, a virus does not have national boundaries and the epidemic situation does not make distinctions in races. Its emergence has the contingency, so does the intermediate host through which the virus spreads to human. In essence, the extensive outbreak of an epidemic disease is a global public health event and is “force majeure” in the legal sense, so the so-called “state responsibility” against the country where the virus first occurs does not hold at all. For example, in the global pandemic of “Swine Flu” caused by the H1N1 virus in 2009, the United States was identified as the source of the virus and Mexico was the starting place for the outbreak, but the United States did not demand compensation from Mexico, and other countries did not claim compensation from the United States. After the “China’s Responsibility Theory” for the COVID-19 epidemic came into being, it received little response in the international jurisprudential circle. This is an evident proof of its illegitimacy. In the United States, Professor Keitner, a prominent international jurist, also wrote that “It is no use suing China for COVID-19.”

Secondly, there is no objective fact that the Chinese government “conceals the epidemic situation” and “does not act properly.” Since the outbreak of COVID-19, China has always adhered to the concept of a community with a shared future for mankind, published the epidemic information timely in an open, transparent and responsible manner, fully shared the experience in epidemic prevention, control and treatment with WHO and the international community including the United States, and made great efforts to assist other countries. In fact, as of December 31, 2019, 27 cases of pneumonia of unknown origin were found in China, and on the same day, China informed WHO of the cases; on January 7, 2020, the laboratory confirmed the virus as a novel coronavirus and obtained the whole genome sequence; on January 12, 2020, China published and shared the genetic sequence with the international community. These efforts were highly commended by WHO, which believed that China had fully performed its obligations under the International Health Regulations in a timely and effective manner. It is widely acknowledged by the international community that the efficiency and scale of China’s actions are rare worldwide. It is exactly because of China’s effective prevention and control measures and the tremendous sacrifices made by the Chinese people that China has saved precious time for the international community to fight the epidemic. China should have contribution but no fault in responding to the epidemic.

Thirdly, according to international law, there must be a causal relationship between the loss of the victimized country and the wrongful act of the responsible country. China has not committed any internationally wrongful acts against the United States that are attributable to the Chinese government, nor has there been any causal relationship between China’s anti-epidemic practices and the potential loss of the United States due to a large-scale epidemic outbreak. On the one hand, there are no bilateral treaties or agreements on public health and emergencies between China and the United States, so there are no situations of default involving bilateral treaty obligations. On the other hand, although a contracting state is obliged to only notify WHO of an epidemic outbreak in accordance with the International Health Regulations, China has kept the United States informed in a timely and continuous manner. The United States was the first to get informed of the epidemic in China and has been receiving constantly updated information, which should have given it enough time to effectively prevent and control the spread of the epidemic. It is best for the American people to judge whether the Trump administration has seized and used this opportunity properly. But at the international level, the so-called “China’s Responsibility Theory” is nothing more than “shifting blame to China” by some US politicians and therefore should come to the end.

III

Incited by US politicians, some civil organizations and lawyers with ulterior motives began to echo each other, trying to lodge false accusations against China on the grounds of unfounded hearsay and malicious speculation. This is absolutely a political farce in the guise of law, which is fundamentally untenable in law. Even in the United States, it is viewed unfavorably by the legal community.

First of all, the so-called “class action” is solely an act of drawing public attention with hot spots and a kind of stigmatization with logical mess, but is extremely unprofessional in law. According to the filed complaints for “class action” submitted to the US courts, the plaintiffs claimed judicial jurisdiction over the Chinese government on the grounds of so-called terrorism exception, business exception, tort exception and other procedural laws, and claim compensation against China on the grounds of so-called substantial support for terrorism, conspiracy to cause injury or even death to US citizens, personal attacks, negligence, public nuisance, strict liability for activities with high risk and other substantive laws. These claims actually cannot bear closer analysis at all.

From the point of view of litigation procedure alone, US courts do not have the judicial jurisdiction. Since the middle of the 19th century, the “principle of state immunity” has become a universally accepted principle of international law. A country, its government and property are not subject to the jurisdiction and enforcement of the courts of another country. In this case, the court needs to first determine whether the principle of sovereign immunity applies to the defendant since the defendant is not an ordinary civil subject but a foreign government. The plaintiffs advocate the application of terrorism exception, business exception and tort exception, but these rules do not hold in a strictly legal sense.

With regard to the terrorism exception, the United States Act on Suppression of the Financing of Terrorism of 2016 stipulates that if a country supports terrorist acts and causes injury to relevant personnel in the United States, the United States parties may directly prosecute that country in a US court. Hence, the exception to sovereign immunity applies only when a foreign government finances any terrorist act that causes injury or death to US citizens. This does not exist at all in the case. In the “class action” case in a federal district court of Texas, the plaintiff, based on online rumors, claimed that China should undertake large sums of compensation because it “failed to protect banned and illegal biological and chemical weapons and to provide adequate protection against accidental leaks.” This statement is unjustified and laughable, so how is it possible to constitute an exception to sovereignty immunity in law?

As for the business exception, it does not exist in this case either. Although the United States pursues restrictive immunity on the judicial immunity of foreign countries and their property, state immunity applies only to the sovereign public acts of foreign countries and not to government transactions of a commercial or private nature. If foreign governments get involved in commercial activities or transactions as equal civil or business subjects, any disputes arising from such activities or transactions may not be subject to jurisdictional immunity from US courts. However, the “alleged” government action of China to prevent and control the COVID-19 epidemic is undoubtedly a public administration function of the government with no commercial attributes, and it applies entirely to the principle of state immunity even in accordance with the doctrine of restrictive immunity; there is no fundamental commercial transaction relationship between the plaintiff and the “defendant”; and there is no minimal connection between the Chinese government’s anti-epidemic action and US courts. All these facts do not meet the applicable conditions for business exception that limits state immunity.

With regard to the tort exception, as mentioned earlier, China has not committed any internationally wrongful acts against the United States in the fight against COVID-19, nor has there been any causal relationship between China’s anti-epidemic practices and the potential loss of the United States due to a large-scale epidemic outbreak. Therefore, the claim for “tort” liability is completely unjustifiable.

In accordance with the principles of sovereign equality and state immunity, any legal action against China in the US courts must be objected.

SARS-CoV-2 is still wreaking havoc around the world, posing unprecedented crisis. The virus does not have national boundaries and is a common threat to all mankind. No country can escape from the epidemic, but should unite together to fight and overcome it. It is an evil act to politicize and stigmatize the COVID-19 epidemic, undermine the atmosphere of international cooperation and lodge malicious prosecutions to disturb the global cooperation on epidemic control. Such acts will never be justified by law and must be resolutely curbed.

(The author is member of the United Nations International Law Commission, and professor at Wuhan University Institute of International Law.)