John B. Bellinger III: Suing China over COVID19 won’t help

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.