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Blame China? On the Very Possibility of Responsibility for COVID


Sebastián Guidi (@sebasguidi) is a JSD candidate at Yale Law School.

Nahuel Maisley (@nahuelmaisley) is Global Associate Professor at NYU School of Law and Professor of International Law at Universidad de Buenos Aires.

Many, if not most, of the dilemmas posed by COVID-19 can be reduced to a single question: Who is to bear the costs and burdens created by the pandemic? Part of the answer to this question seems to be beyond human reach: older people will bear more costs than younger people; people in large cities will be more exposed than people in rural, deconcentrated areas. Another part, however, is highly malleable to human (in)action. Some ways of shifting these costs are obvious, as in government aid to economic sectors displaced by social distancing. Others are insidious, as revealed by governments’ failure to prevent a highly unequal distribution of infections and deaths among demographics that are, in principle, equally susceptible to the virus.

Parallel versions of these discussions take place in the global arena. Some have treated the matter as primarily a distributional question: people who can pay should pay. The Argentine center-left president, to take only one example, has called for the creation of a “Global Humanitarian Emergency Fund” in the framework of the G-20. Multilateral institutions have also timidly hinted at this direction. The UN Secretary General has spoken of “unity and solidarity” in facing the crisis, while the High Commissioner for Human Rights has urged for a “cooperative, global and human rights-based approach to the crisis.” Many in the left have deemed this approach insufficient, calling for more radical measures.

Others, most prominently Donald Trump, have focused on blame: people who caused the crisis should pay. Once and again, Trump insisted that China caused the pandemic, and therefore should pay for it. Republicans in the US Senate have also set up to strip China of its sovereign immunity in order to enable compensation lawsuits in US American courts (which the states of Missouri and Mississippi have already filed nonetheless).

The idea is not restricted either to the US or to the right. The Ecuadorian Socialist Party announced they would seek relief from China before domestic and international courts. A former Nigerian cabinet member and vice-president of the World Bank called for China to pay back to Africa the costs of the pandemic. The Australian government has called for an investigation on the origins of the virus. The most widely-sold German tabloid even calculated the amount to be compensated. Examples could go on indefinitely, as this intuition might very well be widespread: Half of opinion surveys respondents in France, the UK, and the US favored the idea of pursuing some form of responsibility from China.

There are many reasons to disagree with, and even to condemn this framing. Worst case scenario, using the Chinese government as a placeholder to externalize blame out from an incompetent administration is racist. Best case scenario, the idea that international law’s role in dealing with the costs of the pandemic is shifting some burdens from some countries to others is too modest.

In a forthcoming Article, however, we argue that this idea is nonetheless worth taking seriously, if only because doing so reveals it is not so far apart from the distributional analysis as one might think. Unpacking our intuitions about what it means to use a lawsuit-like process to shift responsibility to the blameworthy can shed light on deeper intuitions about justice, about the role of law, and about the nature of the global order. And, at the very least, when actors make legal arguments, they are opening themselves to be held accountable to them. Jon Elster has famously called this the “civilizing force of hypocrisy.”

What does the idea of suing China entail, then? A lawsuit implies, first of all, jurisdiction. We don’t imagine a lawsuit in the abstract. We imagine ourselves making our legal arguments before an impartial tribunal, who would not only give us what we want but also tell us we were right all along. When we conjure the imagery of law we are hoping for our disputes to be solved by something other than power alone. Those who fuel the idea of a lawsuit implicitly further the acceptance of a common authority to solve fundamental disputes through the articulation of reasonable arguments.

Jurisdiction, in turn, implies (some kind of) community. The fact that some have filed legal claims before domestic (rather than international) courts, does not obscure the fact that they are arguing that China violated its “duties toward the international community.” It should not be overlooked that it is conceptually impossible to sustain such a lawsuit without asserting in strong terms the existence of a global community. Even someone whose foreign agenda has been described as “destroying the international community” is not ready to say that the burdens of the pandemic should lie where they fall.

There is a third feature of these claims. Trump said that China should have curtailed international flights in order to prevent the disease from spreading; Senators Ted Cruz and Lindsey Graham pointed at the regulation of wet markets; the State of Missouri at the failure by China to mandate a preventive general quarantine. Scientists, more generally, have blamed deforestation and lack of environmental regulation as likely causes of pandemics. All of them are complaining, in sum, that China did not incur in gigantic costs to spare the US, and the world, from the curse of COVID-19. However, China did not sign up for this. The International Health Regulations do not specify how to prevent a pandemic from spreading: they only impose a series of procedural obligations aiming at preparedness for already existing pandemics, not prevention of potential ones.

Where do these obligations come from, then, if not from agreements entered into by China? A prominent line of discourse among those suggesting that China is internationally responsible for the pandemic (see, e.g., here, here, and here) holds that China breached a “foundational principle” of the international legal order, the “no harm principle.” According to this principle, states should not harm each other in the exercise of their sovereignty. The logic here is straightforward: China “unleashed this plague onto the world,” causing significant harm; and thus, the world “must hold China accountable for their actions.”

The problem is that states have expressed astonishingly little agreement on what constitutes harm and what does not in relation to pandemic prevention. All we have is the broad, general idea: states should not “harm” each other. Whether China caused the pandemic or not depends on what normative standard we subject it to. And these standards change all the time. Child smacking or sexual harassment went from been considered legally innocuous to recoverable damages in a few decades time. Insurance companies went from considering children’s lives worthless to deem them priceless at the turn of the 20th century. Comparative tort law will provide as many examples as we ask.

In order to articulate the claim that China “harmed” the USA, then, Trump must explain in what ways we can conduct our global lives without impermissibly harming each other, what things in life are valuable enough to demand preservation from foreign countries, and what sacrifices are worth making and demanding in order to do so. The implications of this may not be so modest. If Chinese people were under the obligation of incurring enormous costs to reduce the risk of infecting other countries’ citizens, what makes us think that US Americans are not under a similar obligation to incur those costs to spare the world from the calamities arising from climate change or the unbearable suffering of global famines?

We have come a long way. At first blush we could have considered Trump’s contention the epitome of unilateralism. We thought he might have agreed with widespread philosophical theories about the impossibility of global distributive justice. Even progressive philosophers have famously contended that in the absence of a global political community, or shared valuations about basic social goods, global distributive justice is not only utopian, but self-contradictory.

Yet, after some thought, it turns out Trump’s approach implies quite the contrary: it acknowledges the existence of a global community, of common values of mankind, and of somewhat thick duties we presumptively owe to each other. With this approach, Trump is inadvertently inviting us to a conversation not about whether global justice should exist, but rather about what form it should take. Despite all his efforts to the contrary, perhaps this is one time in which we could take him seriously.