There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex post” theory also might involve the Chinese government’s more specific international obligations established by global health law, human rights law, trade law, peace and security law, and the law of development finance. Another theory is concerned with the conduct of the Chinese government before the health crisis emerged. This “ex ante” theory alleges a broad range of acts and omissions that created the conditions for the emergence and world-wide spread of the novel coronavirus.
Professor Miller's written responses to Committee members' questions for the record following from his testimony are also downloadable from this page.
Russell A. Miller, Hearing on the Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability Before the S. Comm. on the Judiciary, 116th Cong. (June 23, 2020).