Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
Missouri’s Attorney General Eric Schmitt has filed suit against China, accusing it of “deceit, concealment, misfeasance, and inaction” in unleashing COVID-19 on the world.
Wait, can foreign states be sued in US courts? Usually, no, and until 1952, never.
As a matter of “grace and comity” (legalese for “do unto others…” we don’t want to be sued in foreign courts, so we can’t permit the same), foreign states enjoy general sovereign immunity from US lawsuits, per 28 USC §1604. Section 1605 provides a handful of exceptions to general immunity found under the Foreign Sovereign Immunities Act. None apply here.
Undaunted by reason or lack of precedent, Missouri cites two such exceptions.
The “commercial activity” exception requires a showing that the defendant has carried on commercial activity inside the United States. Missouri cites a florid conspiracy theory — the “emerging theory on the origin of the virus is that it was released from the Wuhan Institute of Virology” — that even if supported by evidence would still not place the activity within the United States.
At least the “non-commercial tort” exception doesn’t require a conspiracy theory, since tort law encompasses negligence, breach, wrongful death, personal injury, etc., for which most would agree China is liable in some sense. But the exception requires that the tort take place “in the United States.”
Every tort has an an act and an injury, and those two things can, like here, occur in two different geographic locations. US courts have held that the non-commercial tort exception to apply, the act must occur inside the United States, not only the injury. FSIA’s legislative history bears this out further. Further, the exception language expressly excludes “any claim arising out of … misrepresentation [or] deceit,” which is precisely what Schmitt is alleging.
Missouri’s FSIA argument is undone further by Republican Senators Marsha Blackburn and Martha McSally, who introduced an amendment to FSIA that would permit lawsuits against any foreign state that “discharges a biological weapon.” If Missouri’s suit fit squarely into an existing exception, why introduce a new one?
That’s mostly legal in-the-weeds stuff, though, and perhaps gives Missouri undue credit for filing a serious lawsuit when it in fact filed a performative lawsuit, one meant not to succeed but to grab headlines and bolster a counter-narrative to the US president’s own “deceit, concealment, misfeasance, and inaction,” a counter-narrative endorsed by Trump himself.
To be sure, China owns a ton of blame for its “deceit, concealment, and inaction,” though I’m far less sold on “misfeasance,” seemingly an allusion the wholly unsupported ‘created in a lab’ kookery. But the US courts are the wrong mechanism to hold China to account. It’s a sticky political problem, not a legal one.
I don’t know what the answer to holding China to account is. If the US hadn’t isolated and alienated itself from the rest of the world, it might have persuaded the UN to intervene, but the US chose to view the UN as an enemy instead of a tool, so that ship has sailed.
And some action is needed, perhaps less for this pandemic than the next one, which could very easily originate in China.
But realize too that China could very well be the first across the vaccine finish line, at which time the world would need its acquiescence and complicity.
