Punishing China
by
Xi Jinping addressing the UN in 2015 (YouTube screenshot)

All available evidence points to the conclusion that the COVID-19 virus originated in a Chinese laboratory in the city of Wuhan. Whether it was created as a biological weapon or was the natural evolution of other viruses being studied in the lab, it’s apparent that through negligence of those involved in the research, the virus was released into Wuhan and then spread around the world.

Even in the most favorable light, the pandemic is a direct result of the Chinese government’s intentional acts or gross negligence.

The staggering toll the pandemic has taken — so far, 2.2 million cases of infection, more than 150,000 deaths, and tens of trillions of dollars’ damage to nations’ economies — isn’t the end of the story. There will almost certainly be more rounds of infections and deaths before a vaccine and effective treatments are devised.

An increasing number of politicians and pundits are demanding that China somehow be held accountable and punished in some manner for its actions causing the COVID-19 pandemic. To have China recompense the world for those actions would be a just result. But how that can be required of China — and whether it can be done at all — is very much in doubt.

In dealing with less powerful nations, such as Iraq, the remedies for a nation’s severe misconduct can be international — UN economic or military sanctions — or similar responses taken by individual nations or groups of nations.

The UN — which has taken positive actions so few in number they can be counted on the fingers of one hand — isn’t going to impose international sanctions on China, nor will any of the UN’s various organs and agencies, for one simple reason. China is one of the five permanent members of the UN Security Council and thus has a veto of any UN action, ranging from economic sanctions down to mild resolutions of concern. There is no doubt that China would veto any move, by the U.S. or any other nation, to impose any sanction or even a mild rebuke.

China would also quash any action by any UN organization, be it the International Court of Justice (ICJ) or the UN Human Rights Council.

The ICJ theoretically has jurisdiction over such matters, but, like all other UN agencies, it’s a political joke. One of its pending cases is a suit brought by the Palestinians against the U.S. over Trump’s relocation of the U.S. embassy to Israel from Tel Aviv to Jerusalem. Just as we should and will ignore any ICJ decision against us, so would China in any case about the pandemic.

President Trump could attempt to rally a few other nations to impose economic sanctions on China. Were he to do so, China would threaten us — and our prospective partners in sanctions — with its own economic sanctions. The fear of Chinese retaliation would leave us without any partners in attempting to sanction China.

Trump’s first-round trade agreement with China, under which it is supposed to purchase billions of dollars’ worth of food from U.S. farmers, would be the first casualty.

So much for international measures against China. Whatever actions we take, China will retaliate against them. We should be prepared for that and, to the extent possible, devise our actions to minimize the damage China will cause us in retaliation.

There are several actions we have to take immediately to at least prevent further Chinese leverage over our economy. For example, the Thrift Savings Plan (a retirement system for federal employees) reportedly plans to invest a significant portion of its funds — in excess of 11 percent — in Chinese firms. That planned investment should be canceled forthwith.

U.S. government aid and grants — one previously went to the same Wuhan lab that the virus emanated from — should also be canceled immediately.

Those are short-term actions. In the medium term — meaning before the year is out — there is much more to do.

The pandemic has led to disclosure of the fact that the United States is dependent on Chinese production of many commonly used medicines and medical equipment. China, highly sensitive to any criticism by the U.S., has reportedly imposed new trade restrictions on those items, preventing them from being shipped to the U.S.

U.S. companies producing medical supplies in China should be compelled by tax penalties to move their production back to the United States. Tax incentives should also be enacted to assist in the move. A carrot-and-stick approach should be enough to achieve the goal of making us independent of Chinese medical supplies.

Trump hasn’t yet proposed such tax incentives and penalties. It is highly unlikely that the Democratic House will pass any such legislation simply because Trump would propose it. The House Democrats won’t propose any such actions themselves.

China has been stealing hundreds of billions of dollars’ worth of American intellectual property — ranging from military secrets to research done by American companies — every year for decades. We are dedicating billions every year to computer security to prevent those thefts, but that hasn’t stopped them.

U.S. companies seeking to do business in China have been required by the Chinese to share their technologies. That must be stopped by legislation. Nothing short of that will even slow China’s theft of our secrets. Lawsuits against Chinese companies or the Chinese government will have no effect except to publicize, in a small way that the media will ignore, China’s malfeasance.

Foreign governments are immune from suits in U.S. courts under the sovereign immunity doctrine. Sen. Tom Cotton (R-Ariz.) and Rep. Dan Crenshaw (R-Texas) have introduced legislation to amend the Foreign Sovereign Immunities Act to allow U.S. citizens to sue China in federal court for damages sustained from the COVID-19 pandemic.

That bill, if passed, would be beneficial in only one sense. It would put the United States on record as recognizing China’s responsibility for the pandemic. We have done far too little to counter China’s massive disinformation campaign denying responsibility for the pandemic. Passage of this legislation would be a beginning of a response.

There is an inapposite precedent for such lawsuits. Victims of Iranian terrorism were permitted to sue Iran for the damages they sustained by virtue of several Iranian actions ranging from the 1983 Marine Barracks Bombing in Beirut to the seizure of 52 U.S. personnel in the Tehran embassy in 1979.

That precedent is inapposite because Iran had at least $2 billion of funds that had been seized by the U.S. after the 1979 Iranian revolution against which judgments could be levied. The Supreme Court has allowed those suits to continue, but Iran, predictably, refuses to pay the $53 billion in judgments against it beyond the $2 billion held.

It is also inapposite because Chinese funds are not held by the U.S. government to pay judgments and because Chinese investments in the U.S. are not provably investments by the Chinese government.

There are very substantial Chinese-owned properties in the U.S., including the Waldorf-Astoria hotel in New York City (bought for $2 billion in 2014 by the Anabang Insurance Group), AMC, the largest chain of movie theaters in America (bought for $2.6 billion in 2012 by the Wanda Group), and Smithfield Foods (bought for $7.1 billion in 2013 by the WH Group). But they are immune from levies for damages in lawsuits against China because the Chinese government’s ownership of these assets cannot be proven.

Proving that those assets are owned by the Chinese government will be virtually impossible because the “discovery” of evidence, the principal tool of litigation in the U.S., will be stonewalled by the Chinese.

The same is true for discovery of the most important facts demonstrating Chinese actions that caused the pandemic. The sine qua non of liability is responsibility. The assertion that the COVID-19 virus originated in a Chinese laboratory in the city of Wuhan is no longer in doubt. But proving the origin in court — and China’s negligence or intent in creating the pandemic — is another matter.

Courts cannot take media stories as evidence. Secretary of State Mike Pompeo said last week that we were trying to gain access to the Wuhan lab, which the Chinese will either deny outright or after a cleanup of the lab — and destruction of its relevant records — before U.S. inspectors can examine anything. They will also instruct — on pain of imprisonment or death — all of the Wuhan lab scientists and staff to not admit anything to us. That assumes we can obtain access to them, which is inconceivable.

There are sanctions for failing to answer discovery in federal court. But the Chinese don’t care. Without documents and/or witness testimony from responsible Chinese, the lawsuits proposed by Messrs. Cotton and Crenshaw will fail.

In sum, China is not going to pay anyone for its negligence and intentional actions in causing the pandemic. But that’s not the end of the story.

President Trump has failed to effectively counter China’s massive disinformation campaign that has denied its responsibility for the pandemic, claimed the source of the virus is the United States, and claimed leadership in fighting the virus. The best he’s done so far is to say that if the Chinese were “knowingly responsible” for the pandemic they should be liable for the damage it has caused.

That’s not nearly good enough. The president — as well as his COVID-19 task force and other government leaders — should be blasting China every day for what it has done and deriding its claims of global leadership. No one outside China should go to bed at night without having heard the truth about China’s responsibility for the pandemic.

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