What Happened To Missouri’s COVID-19 Lawsuit Against China? So Far, Not Much

Aug 31, 2020
Originally published on August 31, 2020 3:27 pm

More than four months after Missouri Attorney General Eric Schmitt sought to hold China and the Chinese Communist Party accountable for the COVID-19 pandemic, the lawsuit remains stalled in federal court.

Neither the Chinese government, the Communist Party nor the officials named in the lawsuit have filed a response.

Missouri served the Chinese Foreign Ministry in Beijing with summonses on July 17. Under U.S. law, a foreign state or agency has 60 days to respond after they’re served.

That means the defendants’ deadline to respond could be as soon as late September. But because U.S. law generally grants foreign states immunity, most legal experts agree the case isn’t likely to go anywhere even if the defendants do respond.

“It’s always been very reluctantly that American courts have gotten involved with foreign policy,” said Karen Alter, an international relations expert at Northwestern University.

“The basis (for the lawsuit) is not strong,” echoed Mary Ellen O’Connell, who teaches international dispute resolution at the University of Notre Dame.

Chris Nuelle, a spokesman for Schmitt, said that the state’s attorneys “have worked diligently to pursue all steps necessary to obtain service under The Hague Convention, which is a complex process.”

Nuelle declined to say what steps the attorney general’s office would take if China simply ignores the lawsuit.

The suit, which was filed on April 21, argues the defendants’ efforts to suppress information, arrest whistleblowers and deny the coronavirus’ contagious nature led to the loss of life and severe economic consequences in Missouri.

“COVID-19 has done irreparable damage to countries across the globe, causing sickness, death, economic disruption, and human suffering,” Schmitt said in a press release about the lawsuit. “In Missouri, the impact of the virus is very real – thousands have been infected and many have died, families have been separated from dying loved ones, small businesses are shuttering their doors, and those living paycheck to paycheck are struggling to put food on their table."

Schmitt called the lawsuit historic, but legal experts at the time mostly panned it as a stunt aimed at shifting blame to China for the pandemic. President Trump and members of his administration have consistently sought to fault China for the pandemic, often referring to the disease as the “China virus” or “Wuhan virus.”

After it was filed, the Chinese Foreign Ministry termed the lawsuit “frivolous,” saying “it only invites ridicule.”

Even if the case moves forward, Schmitt has a high hurdle to overcome. The Foreign Sovereign Immunities Act of 1976 (FSIA) grants immunity to foreign states, although exceptions exist for commercial activities “in or directly affecting” the U.S. and for wrongful acts in the U.S.

“Simply put, any scholar or practitioner with working knowledge of foreign sovereign immunity would have taken one look at the headlines about these lawsuits (as I did) and assess immediately that there is no basis for jurisdiction in a U.S. court,” Chimène Keitner, an international law professor at the University of California Hastings College of Law, wrote in April about lawsuits filed against China over the coronavirus.

Schmitt’s lawsuit sought to position itself within the exceptions to FSIA by referring to the commercial activity of Chinese government-run laboratories, but those activities took place in China, not the U.S.

While some suits against foreign governments have been successful, those usually have fallen under Congressional legislation authorizing lawsuits against specific foreign countries like Cuba and Iran. In Iran’s case, the strategy was to form something called the Iran-United States Claims Tribunal. But those cases are the exceptions to the rule that American courts don’t usually get involved in foreign policy.

“It’s very hard to maintain a coherent policy when you could have a judge anywhere creating a ruling that all of a sudden sets off a foreign policy problem,” Alter, of Northwestern University, said. “Of course, that’s not something the Trump administration worries about. The more annoyances on China, the better.”

O’Connell, of Notre Dame, said that while Schmitt’s lawsuit faces tough hurdles in overcoming FSIA, “I imagine that Missouri considered that this might be one of those unusually controversial, politically sensitive cases in which they might succeed in a U.S. court.”

“The Foreign Sovereign Immunities Act is just this Christmas tree of different provisions and amendments that Congress keeps changing and adding, and then the courts rule,” O’Connell said. “ … And with so many judges who don’t have familiarity with the strange details, and if China’s not there to put in a full case, I would give it more of a chance than Professor Keitner does,” she said.

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