A Blog by Jonathan Low


Apr 23, 2020

Is There Legal Basis For Missouri's Lawsuit Against China, Claiming It Lied About Covid-19?

No. There are few exceptions to the Foreign Sovereign Immunities Act under US law and experts say this case qualifies for none of them.

Furthermore, over the past three years, the US government has gone out of its way to alienate many countries around the world - including most of its allies - so pushing for loss of sovereign immunity would expose the US, a country economically dependent on global trade, to similar actions. JL 

Meagan Flynn reports in the Washington Post:

Missouri Attorney General Eric Schmitt (R) sued the Chinese government and Communist Party over its “deceit, concealment, misfeasance, and inaction” that unleashed the pandemic. Experts in international law say the lawsuit doesn’t stand a chance: the Foreign Sovereign Immunities Act prohibits lawsuits against foreign states. “We see the political right focus on China to cover up the U.S. government’s errors.” (And) "the minute you start stripping other countries of sovereign immunity, you open yourself up to lawsuits in the courts of 190 other countries."
Missouri Attorney General Eric Schmitt (R) sued the Chinese government and the ruling Communist Party on Tuesday, making his state the first to seek damages from China over its “appalling campaign of deceit, concealment, misfeasance, and inaction” that he says unleashed the coronavirus pandemic.
“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,” Schmitt said in a statement announcing the lawsuit. “They must be held accountable for their actions.”
Schmitt told Fox News’s Tucker Carlson on Tuesday that the “responsibility lies directly at their feet” for the 229 deaths and more than 6,100 reported cases in Missouri, as well as the economic suffering so many families in his state are experiencing under a stay-at-home order.
Schmitt’s lawsuit appears to be part of a growing effort, mostly among GOP lawmakers, to make China quite literally pay for the mounting pain and economic turmoil that covid-19 has caused millions of families in the United States, or at least garner some publicity for blaming China, a goal of President Trump.
The latter is the most likely outcome, since experts in international law say Schmitt’s lawsuit probably doesn’t stand a chance.
Chimène Keitner, an international law professor at the University of California at Hastings College of Law, said she did not “see any portion of this lawsuit succeeding under the law as it currently stands.” The Foreign Sovereign Immunities Act prohibits lawsuits against foreign states, with a few narrow exceptions, which Keitner said she doesn’t believe apply here despite the Missouri attorney general’s efforts to cite them.

“They obviously have some talented lawyers in the AG’s office, but even a talented lawyer can’t rewrite the FSIA,” said Keitner, a former State Department lawyer who has been tracking several similar class-action lawsuits recently filed against China by small businesses or health-care workers.
Pointing to China’s lack of transparency with its own people and the rest of the world during the early stages of the coronavirus outbreak, a number of GOP senators have filed bills that would amend the FSIA so that Americans could sue China for its failures.
It’s a movement that has drawn increasing support in conservative circles. Former House speaker Newt Gingrich (R-Ga.) summarized and endorsed the calls for litigation by various lawmakers in a Fox News op-ed Monday. “The United States should pass a law making the Chinese government and its controlling power, the Chinese Communist Party, open to individual or class-action lawsuits on behalf of the families who have lost loved ones to the pandemic,” he said.

A bill by Sens. Marsha Blackburn (R-Tenn.) and Martha McSally (R-Ariz.) would amend the FSIA to allow lawsuits against any foreign state that “discharges a biological weapon.” Sens. Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.) have filed similar legislation, creating avenues for Americans to sue China or foreign entities for failures or deceit during public health emergencies.
“The CCP unleashed this pandemic,” Hawley said in announcing his bill on April 14. “They must be held accountable to their victims.”
But some critics have charged that the focus on suing China is simply a political strategy to divert attention from the U.S. government’s own failures to take more proactive and aggressive action against the virus.
“We are seeing a lot of people on the political right focus on the China issue to cover up for the U.S. government’s own errors,” Tom Ginsburg, a professor of international law at the University of Chicago Law School, told Reuters.

In an interview with NPR, Lea Brilmayer, professor of international law at Yale Law School, described Schmitt’s lawsuit as “a last-ditch effort to do something to respond to the political situation.” Like Keitner, she also did not believe the lawsuit has any shot at success.
Keitner said she considered the proposals by lawmakers to do away with China’s sovereign immunity to be a “total nightmare.” She said the more appropriate way to hold China accountable would be to create an international tribunal to investigate failures — not filing lawsuits that will go nowhere.
“Anybody who works in foreign relations recognizes that the minute you start stripping other countries of sovereign immunity, you are opening yourself up to lawsuits in the foreign courts of 190 other countries, potentially, that decide to do the same to you,” she said.

Chinese Foreign Ministry spokesman Geng Shuang responded to Schmitt’s lawsuit during a news briefing on Wednesday, calling it “very absurd,” the Associated Press reported.
“This so-called lawsuit is very absurd and has no factual and legal basis at all,” Geng said at a daily briefing, the AP reported. He insisted that China has proceeded in an “open, transparent and responsible manner.”


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