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Lawsuits Against China


! The Reader !

China has in recent years been more willing to play a bigger role in global affairs, even though historically it has taken an isolationist approach to its participation in international law. But attempts to take Beijing to court will surely dampen its desire for engagement.


* Atul Alexander, assistant professor of law, West Bengal National University of Juridical Sciences, Kolkata, India

With the international community pelting canards at China for its failure to act on Covid-19 and State demanding repatriation to the tune of billions, the heat is on China to take decisive steps. One fallout of the pandemic may be China’s policy towards international law.

Historically, China’s participation in international law has been “isolationist”. This was predicated on China’s disgruntled experience with colonialism and imperialism. In the sphere of international law adjudication, it is worth noting that China rarely appears before the International Court of Justice (ICJ) and is not a signatory to the International Criminal Court (ICC) statute. China’s past encounters with “unequal treaties” have shaped its apprehension towards the international law mechanism, which China considers tailor-made for Western authoritarianism. Notwithstanding China’s past passivity in global affairs, its recent approach to issues like space, trade, seabed mining and Climate Change manifest a vision for a global order. This is amplified by the fact that China in 2014 inaugurated the annual World Internet Conference, or “Wuzhen Summit”, advocating the concept of “internet sovereignty”, in which each country has the right to regulate its internet space.

Although it’s not active in the ICJ or ICC, China has an enviable track record as a World Trade Organisation member. It is the third most active participant in the WTO’s dispute settlement system from 2002 to 2019. Perhaps the core tenet of China’s perception of international law is best summed up as being “self-centred”. Instances of Chinese participation in the dispute settlement forums are incumbent on national interest. So will Covid-19 affect China’s participation in international adjudications? Before the Covid-19 outbreak, there appeared to be a palpable shift in China’s mindset towards its participation in global affairs, as shown by its greater willingness to strengthen bilateral dialogue, engage with regional trade partners, and play a bigger role in diplomacy. But now we have outraged countries clamouring for accountability, several lawsuits filed in the US to force China to pay for Covid-19 damages, and Germany’s largest paper tallying up losses totalling 149 billion euros (US$160 billion). With the likelihood of being dragged to the ICJ or UN Human Rights Council, what enthusiasm China may have felt for playing a larger role in international law may well have cooled.

In April, Missouri Attorney General Eric Schmitt Filed a Lawsuit against China for alleged acts of irresponsibility over the Covid-19 pandemic. He charged that Chinese officials “are responsible for the enormous death, suffering and economic losses they inflicted on the world, including Missourians”.

Since then, many other Law Suits, including class actions that would represent thousands of people and businesses, have been filed in places like California and Florida. None of these suits stands much chance of moving forward in US courts due to the Foreign Sovereign Immunities Act of 1976, which places strong barriers against suing a foreign state.

So why are these suits being filed? Largely for domestic political reasons. They are coming in a US election year, and conservative politicians want to be seen as tough on China, in part to divert attention away from the deplorable failure of the Trump administration in addressing the Covid-19 pandemic in the US.

Regardless of their motives, those filing these suits may be starting a much bigger fight than they are bargaining for, in part because they do not appreciate how their actions appear through the lens of Chinese national memory.

The Sharp Reaction in China to demands for reparations reflects a deeply felt national narrative about the “century of humiliation”. It is a century that began with the opium wars in the 1800s and lasted up to the founding of the People’s Republic in 1949.

For decades during this period, China was forced to accept massive amounts of opium as payment for silk and other exports, and its vehement objections were ignored as Western powers and Japan carved up and occupied its territory.

The People’s Republic authorities have pursued top-down efforts to create an official memory of these events, to be sure, but the century of humiliation narrative is not just some artificially implanted idea that would disappear if government control were lifted.

Instead, its roots run much deeper in the mental habits of the nation. These narrative habits grew out of a painful historical record of how Britain, France, Germany, Russia and the United States went out of their way to humiliate China as they carved up its territory. Japan was especially brutal in its decades-long occupation.

Like the mental habits that shape national memory everywhere, however, Chinese accounts of the “century of humiliation” do not just reflect the objective historical record. Instead, they have taken on a life of their own.

A striking object lesson about this can be seen in the aftermath of the 1999 bombing of the Chinese embassy in Belgrade. In May of that year, B-2 stealth bombers hit what was thought to be a Serbian weapons storehouse, but was instead the Chinese embassy. The targeting error, which was traced to an inexcusable mistake by the CIA, ended up killing three Chinese nationals and injuring others.

Equally seriously, it was an attack on the sovereign territory of an embassy, something Americans can appreciate by recalling the traumatic breach of international trust they experienced with the hostile takeover of the US embassy in Iran in 1979.

What was most striking about the Chinese response in 1999 was not the official reaction. It was the outburst of massive protest in cities across the country. Tens of thousands of students and citizens turned out almost immediately in highly emotional demonstrations, which came close to getting completely out of hand.

The bombing of the Chinese embassy in Belgrade left US president Bill Clinton aghast and dismayed, and he quickly responded by apologising to China and offering compensation to the victims. But many, indeed most Chinese, refused to believe the bombing was accidental – and continue to do so to this day.

Americans generally had no idea that the outrage in China over such an incident could be so massive and found it hard to believe that Chinese citizens had jumped to the conclusion that the bombing was an intentional attack intended to remind them who is boss – in other words, to humiliate them once again.

They may have found the Chinese reaction puzzling and even paranoid, but most Americans didn’t know anything about the “century of humiliation” narrative, much less its emotional power.

The conclusions to be drawn from 1999 apply more than ever in today’s setting of distrust between China and the US. As China continues its global ascent, it is reasonable to push it to become more open and transparent about its actions and to call out its failures to live up to the responsibilities of a world power. Part of the honest feedback that Americans can provide is that we know all too well what it is to be criticised as a superpower. A mature China should get used to this as part of its new status. But the immediate point is that the American lawsuits over Covid-19 are being filed in a context already fraught by the pandemic, and they amount to needless provocation. It is a time when the world needs cooperation, not unnecessary friction. Such provocations are only likely to produce an emotional outburst of nationalism in China, especially among young people. The ensuing downward spiral in US-China relations would make everyone a loser in a dangerous game that might no longer be controlled by anyone.