I reached out to several experts on whether these legal efforts are likely to bear fruit, what risks they run and how China is likely to respond. Here are their views:
Efforts to use U.S. courts to hold China accountable for coronavirus-related harms are legally flawed and politically fraught. U.S. law — following international law — generally grants foreign states immunity. Exceptions exist for commercial activities with direct effects in the United States, wrongful acts (not just harmful consequences) occurring in the United States, and state-sponsored terrorism. But courts aren’t likely to see the accusations against China as falling within these narrow categories.
The legal hurdles go beyond immunity. Courts typically reject class-action suits on behalf of claimants with diverse interests, and government suits for impacts on state budgets or diffuse public and economic harms. The lawsuits make claims that likely fail on the merits — that China has affirmative duties to protect U.S. citizens in the United States or is liable for very indirectly inflicted injuries.
Proposed legislation changing the Foreign Sovereign Immunities Act (FSIA) to authorize suits against China over covid-19 would overcome some of these barriers, but Congress would be reprising highly controversial amendments removing Saudi Arabia’s immunity for its role in 9/11. Amid deteriorating U.S.-China relations, such a move risks retaliatory immunity-stripping as well as further damage to the battered U.S. reputation for respecting international law.
— Jacques deLisle is Stephen A. Cozen Professor of Law, professor of political science and director of the Center for the Study of Contemporary China at the University of Pennsylvania, and director of the Asia Program at the Foreign Policy Research Institute.
Under international law, countries are sovereign equals. This means that one country can’t ordinarily exercise jurisdiction over another. The spate of private class-action lawsuits filed against China for allegedly concealing the initial outbreak of a novel coronavirus neglect this basic principle, and aren’t likely to succeed.
There is also no realistic possibility for the state of Missouri to obtain a favorable judgment and force China to pay damages. At most, there will be a legal battle in U.S. courts about whether suing the Chinese Communist Party comes under the Foreign Service Immunities Act — which codifies the immunity of foreign states from civil suits in U.S. courts, subject to limited exceptions that do not apply here.
Interpreting or amending the FSIA to allow these suits could prompt other countries to allow reciprocal claims against the United States. It could also deter foreign-owned companies from doing business in the United States or using U.S. banks out of fear that their assets could be seized.
Diplomatic and economic measures, deployed in coordination with other countries, offer a more promising path for pressuring China to acknowledge its role in this crisis.
— Chimène Keitner (@KeitnerLaw) is Alfred & Hanna Fromm Professor of International Law at University of California Hastings Law in San Francisco and a former counselor on international law at the State Department.
Republicans in Congress have drafted at least four bills (see here, here, here and here) to enable lawsuits against China. These measures seem spurred by a 57-page National Republican Senatorial Committee strategy memo that urged Republicans to “attack China” and portray Democrats as “weak on China.”
Expect to see retaliatory lawsuits on U.S. covid-19 failures leading to new cases in China from those returning to China, as well as on climate change, military interventions and other issues. Indeed, Chinese lawyers have already filed coronavirus lawsuits against the U.S. government. One lawsuit alleges a U.S. government cover up, and that covid-19 originated in the U.S. Another suit seeks damages for reputational damage caused by President Trump’s use of the phrase “Chinese virus.”
Of course, any further escalation of China-blaming also exacerbates the risk of anti-Asian and Asian American harassment and violence. The GOP strategy memo suggests that Republicans paint concerns about such discrimination as “political correctness,” evincing an unwillingness to hold China to account.
Here’s an alternative approach: The U.S. government could commission an independent investigation into the causes of the coronavirus pandemic in China and the United States once the virus is under control, and develop a comprehensive set of reforms to prevent a recurrence.
— Alex L. Wang (@greenlawchina) is a professor of law at University of California at Los Angeles School of Law.
Legislation to strip China’s sovereign immunity for covid-19 could backfire spectacularly.
It’s easy to imagine that China would refuse to participate in legal proceedings if named as a defendant in a lawsuit under one of the statutes now being floated in Congress. That’s what Beijing did in the South China Sea arbitration brought by the Philippines, a judgment China continues to reject with impunity.
But even if China didn’t show up to court, plaintiffs would still have to prove that the Chinese state “discharged a biological agent” or “deliberately concealed” the virus, according to language employed in two of the Senate bills. That could be a steep challenge, as would any effort to enforce a favorable judgment by seizing Chinese assets in the United States.
The United States’ rule-of-law system and its global presence are strengths that can also be vulnerabilities. Lacking the support of a multilateral coalition behind Congress’s pursuit of accountability through litigation, Washington could see retaliation by Beijing that won’t be subject to the same “due process” constraints that apply in U.S. courts.
— Robert D. Williams is a senior research scholar, lecturer, and executive director of the Paul Tsai China Center at Yale Law School.
The Chinese government faces a dilemma: It can either take these lawsuits seriously and therefore politically legitimize American legal authority — or it can refuse to respond and risk losing the lawsuit in absentia on procedural grounds. If Beijing refuses to respond, some of China’s significant economic assets in the United States could be vulnerable if the lawsuits proceed.
What’s more likely is that Beijing will work to have the lawsuits dismissed — but also line up Chinese firms to sue the U.S. government in Chinese courts as a political countermeasure. After all, officials in Beijing can argue, quite plausibly, that the U.S. federal government has also been highly negligent on coronavirus. Beijing could claim, for instance, that the U.S. mounted an extraordinarily slow and inept response to the pandemic, with deeply inadequate testing and little federal coordination and guidance even after it was clear the coronavirus was spreading in multiple U.S. locations. The U.S. could therefore find itself in Chinese court facing accusations of re-exporting the virus and causing economic collateral damage.
This kind of lawsuit would be just as frivolous as its American counterparts, and even more materially meaningless, when there are far fewer U.S. government-owned economic assets operating in China than there are Chinese state-owned assets operating in the United States. But if the point is to seek retaliatory humiliation in the eyes of the Chinese public or the international community, then this could be an attractive path for Beijing to follow.
— Taisu Zhang is a professor of law and history at Yale Law School. He writes on comparative legal and economic history, private law theory, and contemporary Chinese law and politics.