Donald Trump called Communist China out on the merits. As a result, few in either party now doubt China’s malintent, illegality, audacity, manipulation of the international community, and inhumanity at home. The question is accountability. How does the free world keep China from continuing to break civilized norms – from violating signed treaties to trampling human rights, theft of intellectual property and cybercrime to letting loose dangerous space debris – and starting a global pandemic?
The answer is layered – strong alliances, military deterrence, trade sanctions, clear communication, and enforcement of the law. This last is critical, as multiple US states – and perhaps in the future citizens, foreign nations, and multilateral organizations – are suing China for having brought death to their citizens with COVID.
Traditionally, sovereign immunity protects a foreign country from being sued by citizens of another country – without that country’s consent. The idea is reciprocal protection against a phalanx of lawsuits for actions by the foreign country.
Specifically, since 1976, the US has followed the Foreign Sovereign Immunities Act (FSIA, not to be confused with FISA, or the Foreign Intelligence Surveillance Act). See 28 USC 1603, et seq. This Act put US Courts in charge of determining when a suit against a foreign country is permissible (rather than diplomats at State). See, e.g., https://en.wikipedia.org/wiki/Foreign_Sovereign_Immunities_Act.
Generally, the FSIA law bars suits, but there are exceptions – including to sue a state for committing a “tort” (wrongful act resulting in civil liability) or for taking property in violation of international law.
In those cases, even under the 1976 act, suits can be brought. To date, courts shy from these suits, for example, saying the entire tort – not just the result – must be committed in the US. But views are expanding, and suits against China will test this doctrine.
More hopeful, another statute came to life in 2016 – a statutory exception to the rule that keeps foreign states from being sued. This statute is the Justice Against Sponsors of Terrorism Act (JASTA), and it permits lawsuits in US courts for civil damages against a foreign country that causes injury, death, or damages in the US by “terrorism.” See https://en.wikipedia.org/wiki/Justice_Against_Sponsors_of_Terrorism_Act.
Obviously, to win against China for having knowingly started or recklessly permitted the international spread of the virus causing COVID (or both), one would have to identify China as the source, state a tort (pushing JASTA’s current definition to include a foreign origin cause), or collect sufficient evidence to present a credible claim that China intended to spread the disease and that this amounts to terrorism.
Note also that other theories exist, and another possibility would be new legislation –introduced in the former Congress – that officially created an exemption to suits for what happened, by way of example, liability for reckless transmission of a virus that would foreseeably cause sickness and death, or some similar new exception.
So, where is this process – of holding China accountable in US courts for COVID deaths? In truth, it continues to go forward, with at least two US states still pressing to hold China liable – even before any statute might open a new exception, specifically for the damage done by China to US citizens, the US economy, public health, and safety.
These two suits – filed in federal court – have been brought by Missouri and Mississippi. New reports this month indicate they are full speed ahead, despite no new statutory exception to the immunity act and despite the jurisdictional issues raised above.
Said the Mississippi Attorney General last month, “Mississippi families and businesses deserve to be made whole for China’s malicious and dangerous actions” and “the suit is currently proceeding through the judicial process …” Similarly, Missouri filed the first suit of this kind last year.
While these two states are Republican, good reasons exist for more states to sue or for a consolidated suit to emerge – again seeking, as the dust settles, to hold China legally and financially accountable to Americans for enormous damage that their reckless handling and origination – with or without intent – caused.
Likewise, these suits should trigger a congressional and presidential re-look at the possibility of a quick turn statute that creates – like the terrorism exception to FSIA – a pandemic-causing exception to foreign sovereign immunity.
Bottom line: If any of these suits prevailed, establishing Chinese liability in a US court based on legally admissible, open-source, or otherwise legally secured evidence, the ruling could trigger not billions but trillions in liability.
If that is unlikely – in the absence of a congressional exception, which the Biden-Harris White House and Democrats will oppose for diplomatic reasons – the possibility still exists.
More to the point, these suits are a spotlight – for the world to see. They will make China uneasy the further they go. They could trigger lawsuits by foreign countries or multilateral organizations against China. They will inform public discussion of China’s fundamental negligence – at minimum, and force China to decline access to the evidence which would prove innocence or guilt.
Most of all, they are the tip of the spear – or first shield in a field of shields– that point to the illegality, immorality, and impermissible nature of China’s illegitimate behaviors, instigated by an illegitimate Communist government.
COVID is just one profound offense by Communist China against humanity – next should be suited in the US and international courts driving home the illegality of other behaviors, from cybercrime and intellectual property theft to interference with shipping routes, trade manipulation, and militarization of space to human rights violations and dropping multi-ton rocket debris into the earth’s atmosphere to crash – place unknown.
In the final analysis, lawsuits are one way to elevate, educate, and attempt to bring home the malicious, reckless, and negligent acts of foreign countries – especially when they play at the top of global affairs. Time to hold China accountable – by law – for offenses that demand remedies.