China gets sued by the state of Missouri – what’s next?

China gets sued by the state of Missouri – what’s next?
Source: Wang Zhao (China’s Ministry of Foreign Affairs spokesman Geng Shuang)

In late April, Eric Schmitt, the Republican attorney general of Missouri, introduced a lawsuit in a United States federal court against the Chinese government over alleged negligence in the early days of the coronavirus crisis.

According to the allegations, the Chinese government “lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease.”

In Schmitt’s view, COVID-19 has done “irreparable damage” to countries across the globe and China should be held responsible.

Specifically, Schmitt’s lawsuit is trying to not only sue the Communist Party of China, the sole governing party in the country, but also three separate government agencies, a science agency, a Chinese laboratory, the province of Hubei and the city of Wuhan where the first virus outbreak originated.

Since the lawsuit was first announced many legal scholars have suggested that a successful outcome for the case would be a long shot due to laws and practices put in place that discourage cross-border litigation.

Still, backers of the suit argue that there is precedence for allowing litigation against a foreign government in exceptional circumstances, especially after the US Congress passed a law, in 2016, that allowed private citizens to sue foreign nations over links to terrorism on American soil.

While defenders of the case cite the need to pursue justice, critics say that the suit is little more than political bluster meant to keep up the narrative of Chinese culpability as the US continues to struggle with the health and economic fallout wrought by COVID-19.

According to Robert Williams, the executive director of the Paul Tsai China Center at Yale Law School and a senior fellow at the Brookings Institution, an American think tank, the principle known as “sovereign immunity” would be the main hurdle preventing such a lawsuit from gaining legal footing.

Sovereign immunity, at its most fundamental level, is a customary international law that says one national government cannot sue another national government without its consent.

Crucially however, being a customary law the practice is within mainstream legal patterns of behavior and does not fall under any agreed upon treaties.

Another potential legal roadblock stems from language in the Foreign Sovereign Immunities Act, a US law passed in 1976 that clarifies the boundaries of legal action against other countries by giving some exceptions to the rule of sovereign immunity.

In order for a lawsuit against a foreign government to be deemed legitimate, the law provides prosecutors two avenues that they can pursue. First, as a claim based on illegal commercial activity by a foreign government that has direct negative impact in the United States and, secondly, as something known as “noncommercial tort,” which means an act of wrongdoing was committed by a foreign entity that caused a US citizen harm. Here, the illegal conduct and the injury must have taken place within the US.

In the lawsuit, Schmitt mostly tries to fit the case into the first exception, arguing that a lab in Wuhan was engaging in commercial activity that eventually harmed US citizens.

Both the World Health Organization and the National Institute of Allergy and Infectious Diseases, an agency under the US Department of Health, have said that there is no evidence suggesting that the virus leaked from a lab.

Even if Missouri managed to win its case, observers say it is highly unlikely that the Chinese government and its agencies would hand over anything in damages, as there is no instrument to enforce such a potential ruling.

Exceptional circumstances?

In 2016, even after a veto by then-President Barack Obama, the US Congress passed a bill that allowed private US citizens to sue foreign governments for alleged ties to terrorism committed on American soil.

The law is known as the Justice Against Sponsors of Terrorism Act (JASTA). In practice, so far it has allowed families of 9/11 victims to sue Saudi Arabia using the argument that their government was aiding and abetting terrorist activities that eventually led to the 2001 terror attacks.

So far, at least three groups of 9/11 families of victims and survivors have tried to prosecute members of the Saudi government over the attacks, which resulted in Saudi Arabia sending lawyers to the United States to defend the government, for which cases are still ongoing.

At the time, President Obama opposed the bill by arguing that it could set a precedent whereby US officials and organizations would be open to prosecution by foreign citizens and governments in their court systems, potentially harming US interests and straining international relationships.

Although Missouri’s lawsuit would not fall under the purview of JASTA, some Republican lawmakers might see it as a pathway toward expanding exceptions to sovereign immunity in light of the coronavirus crisis.

In mid-April, Senator Tom Cotton and Representative Dan Crenshaw introduced legislation that would explicitly allow US citizens to sue China in federal court to “recover damages for death, injury and economic harm” brought on by the virus. Senator Josh Hawley introduced a separate bill to the same effect.

So far, Republicans seem divided on the issue, with hardliners emphasizing China’s alleged liability, while others have used more muted language, potentially with the impression that a direct fight over the virus could lessen the chances of a sustainable economic agreement between the two nations once the pandemic has passed.

Nevertheless, Missouri now seems poised to follow through with the lawsuit.

“We filed this suit on behalf of the thousands of Missourians who have been sickened and lost their jobs, the hundreds of Missourians who have died, and those who have been separated from loved ones due to COVID-19," a spokesperson for Schmitt’s office said late last week.

“We stand by our lawsuit," they added.

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