The Legal Stakes of a Lab Leak
In 2012, researchers at the Rotterdam laboratory of virologist Ron Fouchier, PhD, noticed that an artificially created variant of the H5N1 avian flu virus began to spread among ferrets. H5N1 is a highly pathogenic virus that targets poultry but only rarely sickens people. Spread among ferrets was highly problematic because ferrets are a model for human-to-human flu transmission. Virologist Yoshihiro Kawaoka, PhD, of the University of Wisconsin-Madison and the University of Tokyo observed a parallel occurrence. These findings ignited a worldwide debate about whether research that causes viruses to become more dangerous, known as gain-of-function research, should be openly published in scientific journals.
Some argue that gain-of-function research is crucial for those who seek to perfect surveillance methods for pandemic outbreaks and to develop defense strategies like novel vaccines. Others argue that this kind of research only increases the chance for deadly virus outbreaks by intentional bioterrorism or through unintended lab leaks. In both cases, the consequence would be the potential devastation of the human population.
The implication of this dual-use research — research that can both benefit and harm the public — is not a new idea. Archimedes used his knowledge of mathematics to design defensive machines to protect his city from invasion. Regarded as the father of the atomic bomb, J. Robert Oppenheimer came to regret his recommendation to build an atomic bomb, voicing his objection through a quote from the Bhagavad Gita: “Now I am become death, the destroyer of worlds.” In 1963, author Kurt Vonnegut speculated the end of the world as a result of science gone wrong through the creation of ice-nine in Cat’s Cradle.
Gain-of-function is an example of dual-use research. It was the kind of research carried out on H5N1, leading the NIH to put in place a moratorium on funding such research in 2014. The fear was that gain-of-function research was just too risky. Yet that moratorium was short-lived. Based on a report by the National Science Advisory Board for Biosecurity that government-funded gain-of-function research was seldom a risk to public safety, the ban was repealed in 2017. The NIH once again funded this research but promised to exercise more scrutiny.
In late 2019, the first cases of SARS-CoV-2 emerged in Wuhan, China. In this same time period in Wuhan, at least two separate labs were studying coronavirus that originated in bats: the Wuhan Institute of Virology, which reports to the Chinese Academy of Sciences, and the Wuhan Center for Disease Control and Prevention, which reports to the Chinese Center for Disease Control and Prevention. Both of these labs are close to the wet markets that were deemed to be the original source of the outbreak. Recently, the narrative has shifted away from the theory that SARS-CoV-2 occurred naturally in those Wuhan wet markets to the idea that it leaked from a Wuhan lab and possibly man-made.
Coronaviruses were first described in 1965 and have previously been the cause of two serious diseases: SARS in 2003 and MERS in 2012. Research on gene sequencing, spike proteins, receptor binding domains, and the creation of hybrid viruses for the purpose of better understanding infectivity was actively underway before and after these outbreaks. When the U.S. government suspended the funding of gain-of-function research, China did not.
What would be the aftermath in a world where Chinese research actions were shown to be the source of the mistaken release of SARS-CoV-2? Negligence is defined as an action that departs from the standard practice and harm is the result. It seems likely that if SARS-CoV-2 was man-made, releasing it to the world was not part of the plan. Many in Wuhan and in China suffered and died. If the creation of SARS-CoV-2 was a conspiracy, the benefits of such a plan cannot be understood. Most likely, SARS-CoV-2 escaped through a mistake or a breach. These actions are negligent.
Consider as a round number that 1 million Americans have died from COVID-19. If SARS-CoV-2 was released through negligence, the families of these 1 million Americans could bring a class-action wrongful death claim against the laboratories in Wuhan and the Chinese government. As a round number, a wrongful death claim might pay $1 million per person. The total settlement value would therefore be $1 trillion dollars — the entire amount of U.S. debt owed to China.
If a judgment were issued against China, the obvious problem would be how to collect the money. There is no international court of civil wrongs and China might simply object based on a lack of jurisdiction on the part of the court. On the other hand, the U.S. could decide that the most straightforward way to collect the debt from China would be to begin to seize Chinese assets. If a ship from China docked at a U.S. port, the court could send the bailiff to seize the ship. Chinese funds in U.S. banks could be frozen. The U.S. could request neighboring countries to seize Chinese assets on the basis of pre-existing collaboration agreements.
What would likely be China’s reply, particularly given that it continues to claim that SARS-CoV-2 occurred naturally and not because of a lab leak?
In another recent dispute, China demonstrated its willingness to escalate tensions when it feels its interests are at stake. In 2018, Canada detained Huawei executive Meng Wanzhou, the daughter of the founder of the Chinese telecommunications giant. The detention was enacted at the request of the U.S. government through an existing Canada-U.S. agreement that regulates such things. The U.S. is seeking the extradition of Wanzhou over alleged violations of U.S. sanctions on Iran. Just days later, China arrested former Canadian diplomat Michael Kovrig and businessman Michael Spavor in what is widely regarded as an act of retaliation. Both men currently remain held in China. Canada has little leverage in this dispute and China is willing to burn through any good will on the part of Chinese-Canadian relations.
This recent example underlines how a U.S. negligence claim against China would be likely to result in counteractions and escalations with worldwide implications. In the worst-case scenario, it could be a casus belli, and start a war. The U.S. would not be the only country with a potentially valid dispute against China. Other countries might follow the U.S. example and bring similar actions against the Chinese government for reparation payments after COVID-19. The total dollar amount of such a claim would be enormous, suggesting that China’s defensive measures might be aggressive.
As the origin story of SARS-CoV-2 continues to unfold, based on the evidence, the likelihood of an accidental and negligent lab leak is increasingly taking hold. What is at stake in the search for causes of the COVID-19 outbreak? What do we hope to gain or what might we lose in the process? The extent of the damage done to humanity by this virus staggers the mind. These next weeks and months will be critical in determining the truth about the origin of COVID-19, and how the world responds to this information will very likely be nation changing.
The U.S. is not completely blameless, however. Our concern over the funding of gain-of-function research was brief. America did fund and collaborate on what was inarguably gain-of-function research on coronavirus. American scientists worked with Chinese counterparts and many such collaborations are easily accessible in the medical literature. The highly ironically named “Operation Warp Speed” told a false story that speedy vaccine development occurred because of super-human insight based on de novo hard work. Many scientists already knew this virus very well. Coronavirus gain-of-function research is another example of the insufferable hubris that infects morally careless scientists, and we are all the losers as a consequence.