On April 21, Missouri Attorney General Eric Schmitt initiated proceedings against the People's Republic of China and some of its entities, such as the city of Wuhan. Missouri is seeking recovery for the loss of life, human suffering and economic turmoil experienced by Missourians which is resulting from COVID-19.
According to Attorney General Schmitt, the pandemic was caused by both action and inaction of the Chinese authorities. This is a weak case for a number of reasons:
First, the evidence mainly consists of U.S. media reports, which do not contain the views of Chinese officials. Apart from a few WeChat messages, the complaint also does not refer to original Chinese sources.
Secondly, foreign states like China, enjoy immunity in American courts under the U.S. Foreign Sovereign Immunities Act. The Missouri Attorney General sought to circumvent this prohibition in three ways:
He also listed the Communist Party of China as a defendant, claiming it is not part of the Chinese State system. This position is contrary to international law, according to which State immunity extends to all its organs, components, and entities, which, naturally includes political entities like the Communist Party.
Additionally, the CPC, which according to its Constitution exercises overall leadership in China, is therefore the supreme State authority.
In addition, Schmidt invokes the commercial activities exception to sovereign immunity by claiming that the conduct allegedly leading to 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 of Virology 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.
Even if these activities could be characterized as being "commercial," they were not carried out in the U.S. which is necessary for the exception to apply.
Finally, he has invoked the tortious conduct exception by claiming that the activities allegedly causing the pandemic amounted to a series of torts occurring in the U.S. Since the activities took place outside the territory of the U.S., this exception does not apply, either.
In the unlikely outcome that the Court refuses to grant China immunity, the claim would face insurmountable barriers at the "merit" stage. Thus, the complaint clearly interferes with U.S. foreign policy towards China, which currently amounts to a balancing act involving highly sensitive trade negotiations, and is therefore bound to be declared a nonjusticiable political question.
Furthermore, the viral outbreak, which was declared a Public Health Emergency of International Concern by the WHO, is covered by a defense of force majeure, or alternatively, the defenses of necessity and distress, which absolve China from State responsibility.
Since it is clear that this case is going nowhere, the question arises why it was brought in the first place. It seems that initiating the suit is part of the political campaign conducted by the Republican Party to blame the pandemic on China.
Thus, the Politico website reported last week that the National Republican Senatorial Committee is urging Republican candidates for elected office to address the coronavirus crisis by attacking China.
Bringing this case will not benefit anyone, perhaps with the exception of the lawyers preparing necessary briefs. Instead of paying legal bills the money can better be spent on protecting the lives and health of the people who are at risk. To beat the virus, close cooperation across borders is necessary. Lawfare is not going to help.
Tom Zwart is Professor of Cross-cultural Law, Utrecht University.