Missouri Opens Up a New Front Against China in Coronavirus Blame Game

In the latest effort by U.S. officials to blame China for the outbreak of COVID-19, Missouri’s attorney general filed a lawsuit in federal court seeking to hold Beijing and the Chinese Communist Party responsible for a pandemic that has now infected more than 900,000 Americans and killed more than 50,000.

The lawsuit seems to aim less at securing victory in court, which is unlikely given current law and jurisprudence, than at prodding Congress to pass legislation, as it did in 2016 with respect to Saudi Arabia and terrorism, to make it easier for U.S. citizens to sue foreign states for damage caused by malicious actions.

The suit, filed by Missouri Attorney General Eric Schmitt, alleges that China, the Chinese Communist Party, and a host of other Chinese entities behaved negligently and deceitfully, making them ultimately responsible for the outbreak of the pandemic, its rapid spread, and the lack of readily available personal protective equipment for medical workers.

“During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment—thus causing a global pandemic that was unnecessary and preventable,” the lawsuit alleges. “Defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians, and they should be held accountable.”

The lawsuit is the latest effort by U.S. officials, beginning with U.S. President Donald Trump, to shift as much blame as possible to China for the pandemic. Trump and administration officials took to calling the disease the “China virus” or “Wuhan virus,” and as the health and economic toll on the United States continues to mount, they have continued to attack Beijing for its role. The outbreak gives Trump a fresh opportunity to bash his sugar daddy as U.S. relations with China become a major theme in the 2020 showdown between the incumbent president and the presumptive Democratic nominee, former Vice President Joe Biden.

Any lawsuit against a foreign state or parts of a foreign state, such as the Missouri case, faces steep obstacles out of the gate. This is largely because of the Foreign Sovereign Immunities Act (FSIA), which limits the liability of foreign governments to U.S. judicial oversight.

The Chinese Foreign Ministry lambasted the lawsuit, dismissing it as “frivolous” and saying “it only invites ridicule.” Beijing underscored that, right now, U.S. courts would be hard-pressed to pursue legal action against Chinese government entities.

The lawsuit tried out some creative solutions to try and get around that fundamental problem, though without figuring out how to legally sue China itself. One argument is that the “commercial” activity in Chinese virus labs is an exception to U.S. sovereign-immunity law. Another is that the economic damages caused by the outbreak allow tort claims, even under FSIA.

But legal experts say the case, while better crafted than some class-action lawsuits that have pursued similar goals, is still on shaky ground. Arguing that government-run medical laboratories inside China let loose the virus, and that the Chinese government covered up initial reports of the disease, as the suit alleges, is hard to square with the commercial activity exception to existing U.S. law. That exception allows for lawsuits for commercial activity by a foreign state within the United States that causes some notable damage.

“The argument for the commercial activity exception is specious. The statute requires that the commercial activity be carried out in the United States,” said Joel Trachtman, a professor of international law at the Fletcher School at Tufts University. “And I am not sure how the Chinese government’s alleged governmental failure constitutes a commercial activity.”

And trying to pin the responsibility on China for the economic harms of the pandemic—the lawsuit makes a reference to Missouri’s skyrocketing unemployment—to invoke the tort exception to FSIA is equally tricky. Most courts have found that both the economic damage and the act that caused that damage must be carried out in the United States.

“The tortiable activity has to be done in Missouri, not in Wuhan, China,” said Ingrid Wuerth, professor of international law at Vanderbilt University School of Law.

But the Missouri lawsuit may be less about getting justice now, and more about laying the groundwork in Congress to make it easier to pursue precisely this kind of approach, Wuerth said.

“I have a theory that part of the audience is Congress, to form the basis to write a statute that limits China’s immunity” to lawsuits, she said. “They know the tort and commercial exceptions don’t apply. What they want to see is legislation that will strip China of its immunity.”

That’s actually what Congress did, in a way, with Saudi Arabia, with the Justice Against Sponsors of Terrorism Act (JASTA) in 2016, which made a provision for U.S. citizens to seek damages for terrorism-related offenses, despite the sovereign immunity law. The Missouri lawsuit, in other words, could be designed to prepare the ground for a JASTA, but for China.

“You could strip away some of the FSIA protections for specific actions. Congress could make it COVID-specific, or it could make it about biological harm more generally,” Wuerth said.

It’s fertile ground. Lawmakers in both houses of Congress are preparing legislation to do just that. Sens. Marsha Blackburn, a Tennessee Republican, and Martha McSally, an Arizona Republican, this week said they’d introduce the Stop COVID Act, a bill meant to open the door to U.S. lawsuits against any foreign states that “intentionally or unintentionally” discharge a biological agent that causes death, injury, or property damage in the United States. The House of Representatives has prepared companion legislation.

The problem, of course, is Pandora’s box. If a court in Missouri, or any U.S. court, can hold the People’s Republic of China accountable for its alleged misdeeds over the coronavirus, it’s open season around the world for any number of lawsuits over harmful U.S. actions, not least of which would be the lackluster and ham-fisted response by states like Missouri and the Trump administration to the COVID-19 outbreak.

“If the Chinese Communist Party or the Chinese government can be sued for this, I am not sure why the United States couldn’t be sued for the war in Iraq, global warming, etc.,” said Trachtman.