Corona: Donald Trump demands compensation from China – with no prospect of success

MIRROR: US president Donald Trump flirting with the idea of China to ask for “very substantial” compensation for the cost of the corona crisis. Does international law provide such a possibility?

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Ginsburg: The principle of state responsibility exists. This places a duty on states to make up for damage that they inflict on other states – provided that this damage resulted from a breach of international law. Then there is the possibility to request compensation.

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MIRROR: And what would constitute a breach of international law in the context of the corona pandemic?

Ginsburg: Lying to your own citizens is not a breach of international law, nor is it a concealment of incidents that have occurred in your own territory. The deliberate spread of a virus would certainly run counter to international law. But there are no evidencethat this has happened, even if the US government promoted this narrative. In my view, the most promising allegation is that China failed to do so in time World Health Organization (WHO) to notify. It is obliged to do so in accordance with Article 6 of the International Health Regulations.

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MIRROR: What do these regulations provide?

Ginsburg: The authors of the WHO Treaty deliberately did not want to create a compensation system, which also makes some sense: They thought it was unnecessary because governments have a self-interest in bringing pandemics under control anyway. It could even have been counterproductive, because after all, we want governments to report an outbreak quickly. The WHO statutes only provide for a voluntary conflict settlement mechanism – and China will certainly not agree to submit to it now.

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MIRROR: In the unlikely event that: Which court would take the case?

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Ginsburg: There is no clear jurisdiction because the relevant contracts have not named a court. You can’t just go to the International Court of Justice in The Hague with this thing, although some US Congressmen have made this request.

MIRROR: If the Trump administration went ahead with the case and found a court, what evidence would it need to present to win?

Ginsburg: In international law, the burden of proof always lies with the party that wants to establish facts. Currently, this rumor is going around that the virus came from a laboratory in Wuhan comes from. So far, everything indicates that there is nothing there, but that the virus is rather a natural transmission from animals to humans. The US government would have to show the Chinese government negligence or even intent.

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MIRROR: At least for the beginning of the outbreak, one could raise the charge of negligence.

Ginsburg: It is undoubtedly that officials from Wuhan and Hubei Province knew about the plague long before they informed the public. The problem with this is that they assumed that Chinese law would not oblige them to do so, in fact they would not allow it. This is an internal problem in Chinese administrative law. I think it is very, very unlikely that an international court would recognize a breach of international law in this.

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MIRROR: The “Bild” newspaper presented China with an “invoice” of around 150 billion euros. Voices in the United States demand that China charge $ 10 million for each Covid-19 death. How are reparations calculated?

Ginsburg: The $ 10 million relates to calculations that statistically value life in the United States. So these are compensation claims. International law knows no fines. You have to prove the damage actually suffered.

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MIRROR: Give us an example.

Ginsburg: Let’s say a German company invested in China and then China appropriates the factory. Even in this comparatively simple case, it is very difficult to calculate the damage. If you want to measure the impact of the virus on the global economy, you would need a model of how the global economy would have grown this year. This is then compared to the actual growth. The difference would be the damage, so to speak. It is simply not realistic to put responsibility for one country. What should it look like? Should China issue a check for $ 10 trillion to the rest of the world?

MIRROR: So if there is no legal mechanism, no competent court and no realistic way to calculate reparations: why are we having this debate?

Ginsburg: I agree: unfortunately the legal content and value of this debate are close to zero. I see it as a continuation of politics by other means.

MIRROR: “The continuation of politics by other means” is Clausewitz’s metaphor for war.

Ginsburg: You know, this pandemic falls in an election year. Take the fact that the US government’s reaction, well, was not great, and that no country in the world has more Covid 19 deaths than we do – all of which means that it is someone’s fault. And it is a tradition of American politics to turn against China.

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