On April 21st, Missouri Attorney General Eric Schmitt initiated proceedings in federal District Court against the People's Republic of China and some of its entities, such as National Health Commission, the Chinese Academy of Sciences, and the local governments of Hubei and Wuhan. While relying on a 47-page complaint, General Schmitt is seeking recovery for the loss of life, human suffering and economic turmoil resulting from the COVID-19 virus as experienced by Missourians. According to General Schmitt, the Corona pandemic was caused by a failure to act by the Chinese authorities.

 

The Missouri case is one of several such cases, including class actions,  which have been brought in the US against China. The state of Mississippi has since joined the Missouri case. It is unlikely to be successful for the following reasons:  

 

First, the evidence mainly consists of US media reports which do not contain any views expressed by the Chinese side. Apart from a few Wechat messages, the complaint also does not refer to original Chinese sources. This amounts to hearsay, which is not admissible as evidence under Rule 802 of Federal Rule of Evidence.

 

Second, foreign states, like China, enjoy sovereign immunity in US Courts under the US Foreign Government Immunities Act and in accordance with international law. General Schmitt has tried to circumvent this bar in three ways:

 

1. The complaint listed the Communist Party of China as a defendant, while claiming that “the Communist Party is not an organ or political subdivision of the PRC, nor is it owned by the PRC or a political subdivision of the PRC, and thus it is not protected by sovereign immunity”.

 

This position is contrary to international law, according to which state immunity extends to all organs, components, and entities of the state, which, of course, also includes the Communist Party.

 

Furthermore, the Secretary General of the Communist Party also serves as the head of state, who by definition enjoys the protection of state immunity. The actions challenged in the Missouri complaint are all attributable, either directly or indirectly, to the President of China.

 

2.In addition, the complaint has invoked the commercial activities exception to sovereign immunity under the Foreign Sovereign Immunities Act 28 U.S.C. § 1605(a)(2) by claiming that the conduct which allegedly caused the pandemic was commercial in nature. These commercial activities allegedly included the operation of the Chinese healthcare system; commercial research on viruses conducted by the Wuhan Institute and the Chinese Academy of Sciences; the operation of traditional and social media platforms for commercial gain; and the production, purchasing and import and export of medical equipment. 

 

The complaint fails to identify which specific activities performed by which entity or entities should be characterised as 'commercial activities' within the meaning of this provision. Instead, it limits itself to making sweeping and generalised statements and therefore it does not meet the legal requirements of § 1605(a)(2).

 

Since the complaint fails to identify concrete activities, it cannot be established whether these activities meet the test developed by the US Supreme Court in Verlinden B.V. v. Central Bank of Nigeria, according to which a foreign state engages in commercial activities when it exercises powers that can also be exercised by private citizens.

 

Missouri invokes the third clause of § 1605(a)(2) which confers jurisdiction over actions that are "based upon ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere that causes a direct effect in the United States". It fails to demonstrate which direct effects the activities it described in general terms may have had in the United States. In Republic of Argentina v. Weltover, the US Supreme Court stated that in order to be 'direct' the effect must follow as an immediate consequence of the foreign state's activity. Missouri has not showed that the activities it listed did have direct effects in the US which could be characterised as the immediate consequences of activities performed by China or its instrumentalities.

 

Furthermore, since all activities complained of took place within China they are covered by the Act of State doctrine, according to which states enjoy immunity for acts performed within their territory. The importance of this doctrine was recognized by the US Supreme Court in Underhill v. Hernandez, where Chief Justice Fuller for a unanimous Court stated that "the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory."

 

Therefore, the Act of State doctrine provides China with immunity for all 'commercial' acts referred to by Missouri.  

 

3. Finally, Missouri has invoked the tortious conduct exception laid down in § 1605(a)(5) by claiming that the activities which allegedly caused the pandemic amounted to torts occurring in the US. It has not identified any damage or loss of property which resulted from the acts that were listed in the complaint, let alone demonstrated that those occurred in the United States, to which § 1605(a)(5) is limited, according to the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp.  

 

Third, in the unlikely case that the Court would refuse to grant China immunity, the claim would face insurmountable barriers at the merits stage. Thus, the complaint clearly interferes with US foreign policy towards China, which currently amounts to a balancing act involving highly sensitive trade negotiations, and is therefore bound to be declared a non-justiciable political question. Courts traditionally address executive decisions taken in the realm of foreign relations with deference.

 

Furthermore, the outbreak of the Corona virus, which was declared a Public Health Emergency of International Concern by the WHO, is covered by the defence of force majeure, or alternatively, the defences of necessity and distress, which absolve China from state responsibility.  

 

In the meantime Republican Senator Tom Cotton (Arkansas) and Republican Representative Dan Crenshaw (Texas) have introduced legislation to amend the Foreign Government Immunities Act, which, if enacted, would deprive China of immunity in Covid-19 cases. This it would do with retroactive effect to January 1st, 2020, while it would also apply to cases which are already pending, such as the suit brought by Missouri.

 

Congress is prohibited from passing such ex post facto laws by Article 1 § 9 of the US Constitution. In addition, even if a later act can set aside an earlier act under the lex posterior rule, it cannot revoke the Act of State doctrine, because it has constitutional underpinnings. This was made clear by Justice Harlan for an almost unanimous US Supreme Court in Banco Nacional de Cuba v. Sabbatino. Justice Harlan emphasised that the separation of powers prescribes the immunity of foreign states for acts performed within their territory. Since the Act of State doctrine has its basis in the Constitution, it can only be set aside or amended through a Constitutional amendment and not through an Act of Congress.

 

It will be clear from the above, that these initiatives will go nowhere. However, it should be borne in mind that the cases have not been brought to achieve victory in a court of law, but in the court of public opinion. They are meant to discredit China in order to draw attention away from the handling of the corona pandemic by US authorities in view of the November elections. Therefore, the cases are not part of regular litigation but of lawfare. To beat the virus, close cooperation across borders is necessary. Lawfare is not going to help.

 

 

Tom Zwart

Professor of Cross-cultural Law, Utrecht University, Director of the Cross-cultural Human Rights Centre, Vrije Universiteit Amsterdam

 

Qinxuan Peng

Researcher, China Top Think Tank-Wuhan University Institute of International law