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MIRROR: United States President Donald Trump is flirting with the idea of asking China for “very substantial” compensation for the cost of the crown crisis. Does international law offer such a possibility?
Ginsburg The principle of state responsibility exists. This obliges states to compensate for the damage they inflict in other states, provided that this damage is the result of a violation of international law. Then there is the possibility of requesting compensation.
MIRROR: And what would constitute a violation of international law in the context of the crown pandemic?
Ginsburg Lying to your own citizens is not a violation of international law, nor is it a concealment of incidents that have occurred on your own territory. The deliberate spread of a virus would certainly go against international law. But there is no evidence that this has happened, even if the United States government is promoting this narrative. In my opinion, the most promising claim is that China did not notify the World Health Organization (WHO) in time. You are obliged to do this in accordance with Article 6 of the International Health Regulations.
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 sense: They considered it unnecessary because governments have a vested interest in controlling pandemics anyway. It might even have been counterproductive, because after all, we want governments to report an outbreak quickly. The WHO statutes only provide for a voluntary conflict resolution mechanism, and China will certainly not agree to submit to it now.
MIRROR: In the unlikely event that: What court would take the case?
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 falls on the party that wants to establish the facts. There is currently a rumor that the virus comes from a laboratory in Wuhan. So far, everything indicates that there is nothing there, but that the virus is rather a natural transmission from animal to human. The United States government would have to show the Chinese government negligence or even intention.
MIRROR: At least for the start of the outbreak, one could raise the charge of negligence.
Ginsburg Undoubtedly, officials from Wuhan and Hubei province knew about the plague long before informing the public. The problem with this is that they assumed that Chinese law would not compel 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 will recognize a violation of international law in this.
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 repairs calculated?
Ginsburg The $ 10 million relates to calculations that life in the US USA It has a lot of statistical value. So these are claims for compensation. International law knows no fines. You have to demonstrate the damage actually suffered.
MIRROR: Give us an example.
Ginsburg Let’s say a German company invested in China, and then China takes over the factory. Even in this relatively simple case, it is very difficult to calculate the damage. If you wanted 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 compared to real growth. The difference would be damage, so to speak. It is simply not realistic to assign responsibility to a country. How should it be? Should China write a check for $ 10 trillion to the rest of the world?
MIRROR: So if there is no legal mechanism, a competent court, and there is 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. Let’s take the fact that the reaction of the United States government, well, it was not great, and that no country in the world has more Covid 19 deaths than us, all of which means that it is someone’s fault. And it is a tradition of American politics to turn against China.
