Can we hold the Chinese Communist Party accountable for COVID-19’s costs?

Can we hold the Chinese Communist Party accountable for COVID-19’s costs?

As the western world comes to terms with the scale of the impact of the COVID-19 virus – the human and economic costs – attention is turning to the issue of accountability.

There’s a few “if’s” in this, but if the Chinese Communist Party knew about the virus but did not take swift enough action to deal with it, or if they have not been honest enough with the world early enough that its seriousness could properly be responded to, what does that mean for our ability send China the bill?

I was interviewed on this topic by 60 minutes last week for a show that screened on Sunday.  You can watch it here:

They only used a few snippets, so the whole picture wasn’t painted, and I thought I’d explain the context. 

The International Health Regulations

Following the SARS outbreak in 2002-3, the nations involved in the World Health Organisation (WHO) developed the International Health Regulations (IHR).  They were designed to ensure that the SARS situation did not occur again – by ensuring prompt disclosure of medical anomalies and detailed information sharing between nations to ensure that a pandemic could in future be avoided.

It appears from all of the information that’s available that China has not complied with the obligations it faced under the IHR to immediately, fully and honestly disclose all potential or confirmed data about the nature and extent of the virus’ spread and clinical impact.  Our ability to paint that picture is undermined by the CCP’s secretive approach and apparent manipulation of the head of the WHO.

To understand the nature of that secrecy, consider this.  China reports that 43,000 people have died from COVID-19.  The Epoch Times has tried to use external data to verify whether this figure is correct.  They’ve observed that 21 million mobile phones accounts have gone dead since the outbreak began.  Some will reflect accounts that are no longer active because people can’t afford them or have returned to their villages where there isn’t connectivity.  But even accounting for that, it suggests a lot more than 43,000 people have died. 

What do we do about the WHO?

To know what we can do about this, we need to know something about the WHO.  While it is run day-to-day by bureaucrats like Tedros Adhanom, the WHO actually answers to the Health Assembly, which consists of one representative of each of the 194 countries that are members of the WHO. It’s a bit like a very large board, with the job of setting the direction and management of the WHO.  It also has the job of interpreting and applying the IHR, and resolving disputes between member states.

If a dispute arose about whether China had in fact complied with the IHR, it is within the power of the Health Assembly to set up an investigation into it.  If it didn’t consider that it had the capacity to do so, or wanted a more judicial style, it has the power to refer the issue to the International Court of Justice or to set up a Tribunal to conduct a judicial-style inquiry. 

This is what 60 minutes referred to as a “Nuremberg Style” tribunal. 

But here’s the limitations on that approach which were edited out of the recording:  China has a history of refusing to be a part of any kind of international tribunals and they are unlikely to start doing so now. Their non-participation is such that, at least in the maritime sphere, hearings are now run without their participation, because it is denying resolution to other nations, like in the case of the Philippines, who wanted to resolve a dispute with China about the South China Sea. While the Philippines won, China just ignored the outcome.

It’s all about sovereignty

That’s the real rub. China takes the advantages of international law and ignores anything that imposes an obligation.  The same approach is adopted by many non-western nations.  The only mugs who accept both sides of the coin are western nations.

It reveals the inconvenient truth about international law with which idealistic law students, well-meaning types and leftists just don’t grapple:  there is only sovereignty.  And until we start to act like it in the way that we prepare for our interactions with the rest of the world, we’ll continue to find ourselves getting the rough end of the stick. 

The USA’s approach has been to cut funding to the WHO until it performs.  Australia could do that, or it could use its role on the Health Assembly to push for better standards, and a move away from political actions and back to genuine medical cooperation. 

The Florida-based class action referred to by the 60 minutes report is brought under legislation that was established to allow foreign nations who promote or sponsor terrorism to be held accountable and have their assets within the USA seized to meet a judgment against them.  It’s hard to see how, without some sort of amendment, this could be employed to extract compensation for losses arising from failure to properly confront, honestly disclosure and promptly take steps to contain a virus that was not otherwise maliciously produced. 

Some will say we should have a law that operates within Australia that allows for assets owned by China or Chinese-government owned companies to be seized to compensate Australia’s individuals, businesses and governments for the costs that have arisen. While that seems attractive at first blush, it would have enormous implications for our attractiveness as a destination for investment.  Why would anyone invest here if they don’t trust that we won’t seize their assets? We could also expect Australian individuals and businesses to face similar restrictions on their overseas assets, and potentially even their freedom when in affected countries, if we made such a move. 

Some will say we should whack on a bunch of tariffs to try and recoup the money lost.  History has shown us, however, that tariffs don’t work. They just make everything more expensive for the Australian consumer as it sets of a chain reaction of nations everywhere implementing similar measures. 

There’s a further avenue, under our bilateral investment treaty with China.  It provides for a process for the resolution of disputes connected with it (and not all losses would be) by arbitration by a panel with one Chinese appointee, one Australian appointee, and another from a mutually agreed country. It’s hard to see that successfully resolving the matter, and the backstop is referral to the International Court of Arbitration with the consent of both nations.  It’s difficult to imagine China consenting to that either.

So what do we do?

We learn the lessons. We need to diversify our trading partners so that we do much more trade with nations that reflect our core values, and become less reliant on markets that operate arbitrarily under governments of totalitarian style. 

We need to improve our ability to provide for ourselves in the event of a crisis, so that we don’t depend on hostile regimes for vital supplies, whether they be medical, fuel, food, defence or mineral.  It’s only when China feels it holds all the cards that it gets to behave with impunity.

If we do that, then when we come to the negotiating table, our “next best” option to whatever the CCP demands will be pretty good – and that gives us the ability to say no, confidently.  It gives us a much stronger bargaining position.  And if it were able to be replicated by many nations, it would genuinely, over time, require the Chinese Communist Party to act with more courtesy for the rest of the world.