John B. Bellinger III is a partner with Arnold & Porter and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He was legal adviser for the State Department from 2005 to 2009 and legal adviser for the National Security Council from 2001 to 2005 in the George W. Bush administration.
At least six lawsuits have been filed against China in U.S. federal courts seeking damages for deaths, injuries and economic losses caused by covid-19. Members of Congress have drafted legislation to strip China of its immunity from suit in U.S. courts. Even if enacted, these congressional efforts are unlikely to pave the way for successful lawsuits — and they could prompt China to take reciprocal measures against the United States. China should be held accountable in other ways, including through diplomatic pressure and a thorough U.S. investigation of Beijing’s role in concealing and failing to stop the spread of covid-19.
Five of the lawsuits against China — filed in California, Florida, Nevada, Pennsylvania and Texas — are class-action suits filed on behalf of persons and businesses in the United States who have suffered injury, damage and loss related to the coronavirus outbreak. Missouri has sued China on similar grounds on behalf of itself and residents, and Mississippi has indicated that it plans to file proceedings. These suits are likely to be dismissed because foreign governments enjoy immunity from suit in U.S. courts under the Foreign Sovereign Immunities Act. The 1976 statute codifies long-standing principles of U.S. and international law that sovereign governments may not be sued in courts of other countries. The lawsuits claim to fall within statutory exceptions to immunity for tortious or commercial acts in the United States. But these arguments are likely to fail because there is no evidence that China committed deliberately wrongful acts in the United States or that covid-19 arose from China’s commercial activities here.
To overcome these legal obstacles, several members of Congress, including Sens. Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.), have drafted legislation that would strip a foreign government of immunity for any acts intended to conceal or distort information about the existence or nature of the coronavirus. Hawley has suggested that the Chinese Communist Party unleashed the covid-19 pandemic and that “we need to empower Americans and other victims around the world to recover damages.” The Cotton and Hawley bills appear to be modeled on the Justice Against Sponsors of Terrorism Act (known as JASTA) that Congress passed in 2016, overriding a presidential veto, to allow lawsuits against Saudi Arabia and other governments for aiding acts of international terrorism.
Whatever the political temptation to allow lawsuits against China, especially during an election year, Congress should resist doing so. Sovereign immunity is based on reciprocity. The United States respects the principle of sovereign immunity not as a favor to other countries but because we expect other countries to respect and protect the immunity of the United States and its officials in their countries. The United States has protested vehemently when other nations have allowed investigations of the U.S. government or its officials for controversial military actions. If Congress allows lawsuits against China to proceed here, China may well retaliate by allowing lawsuits against the U.S. government or its officials in China for claiming that China had intentionally manufactured covid-19.
Congress should also remember that, after voting for JASTA in 2016, some Republican lawmakers immediately expressed misgivings. Senate Majority Leader Mitch McConnell (R-Ky.) said removing the immunity of foreign governments could have “unintended ramifications” and tried to blame the Obama administration for “failure to communicate early about the potential consequences.” If Congress repeals China’s sovereign immunity in the heat of this election year, the U.S. government is likely to regret it later.
Even if Congress were to strip China of its immunity, lawsuits against China are unlikely ever to result in payments to Americans injured by covid-19. In the unlikely event of a court judgment against China, the Chinese government would refuse to pay any award, leading to years of litigation in U.S. courts (likely embroiling U.S. banks and businesses) to seize Chinese assets in the United States.
Opposing lawsuits against China does not mean that the U.S. government should not hold the Chinese government responsible in other ways. Legal immunity does not mean a lack of accountability. The Hawley bill, for example, would mandate a government investigation into China’s role in concealing or distorting information about covid-19. Better still would be a bipartisan commission, modeled on the 9/11 Commission, with a mandate to investigate the causes and spread of coronavirus and U.S. preparedness for and responses to the pandemic. It could make recommendations toward preventing and addressing future pandemics.
The United States should also publicly demand, including in international bodies, that China provide more information about covid-19. It should push other governments to do the same. U.S. officials should privately insist to Chinese counterparts that China must be transparent and cooperative with respect to global health issues in the future. Assertive U.S. diplomatic action is more likely to produce meaningful results for Americans than politically attractive, but ultimately feckless, lawsuits and battles over sovereign immunity.