To Fight a New Coronavirus: The Need to Target the Virus by Science and Public Health Measures, Not China by Litigation in the USA
Professor of International Law, China University of Political Science and Law
1. Amid devastating human and economic losses from COVID-19, a number of American citizens, organisations and some federal states of the U.S. filed lawsuits in the U.S. courts against China for damages suffered as the result of the pandemic. Though those actions differ in the specific causes of action, they share one significant similarity, i.e., all of them name China, its relevant government departments, entities and officials as the defendants. From a legal perspective, these lawsuits have to survive the very first jurisdictional hurdle before they can go any further insofar as a foreign sovereign, in principle, cannot be sued in a national court.
II. Sovereign Immunity: A Chinese Perspective
2. First of all, China maintains that sovereign immunity is an important principle of international law which is based on the principle of sovereign equality as confirmed by the Charter of the UN. Therefore, the immunity of China before U.S. courts is a right derived from international law, which cannot be limited, restricted, modified, deprived by U.S. domestic legislation.
3. Second, unlike the U.S., China is one of the few countries that insist on the absolute immunity approach. This has been clearly affirmed by the continuous assertion of absolute immunity by the Chinese government on various occasions (See Russell Jackson et al. v. People’s Republic of China, 794 F.2d 1490, 1494 (11th Cir. 1986); Morris v. People’s Republic of China, 478 F. Supp. 2d 561 (S.D.N.Y. 2007)). A stronger, and more persuasive piece of evidence is a legislative interpretation promulgated by the Standing Committee of the National People’s Congress (NPC). In the case of FG Hemisphere Associates v. Democratic Republic of Congo, the Court of Final Appeal of Hong Kong decided that before ruling on the issue of state immunity, a reference for interpretation had to be made to the Standing Committee of the NPC. The latter gave its answer by issuing a legislative interpretation, clarifying that the issue of sovereign immunity falls within the realm of foreign affairs, and Hong Kong courts are bound to follow China’s practice in adopting the absolute approach. Under China’s Constitution and the Hong Kong Basic Law, this legislative decision has the legal status of Chinese national law.
4. The Chinese position is that it enjoys immunity from jurisdiction of U.S. courts in all cases, and it rejects the practice of imposing U.S. domestic law unilaterally on China to the detriment of China’s sovereignty.
III. Sovereign Immunity under the FSIA
5. As the Foreign Sovereign Immunities Act, 1976, of the U.S. (FSIA) provides the sole basis for obtaining jurisdiction over a foreign state in U.S. courts, this section attempts to analyse the jurisdiction immunity issue of those lawsuits in the light of this statute.
III.A. Whether the defendants are entitled to immunity
6. The jurisdictional immunity depends in the first instance on whether the defendant is a foreign state under the FSIA. In these lawsuits, the defendants can be divided into the following four categories: (1) China and its governments or departments including the People’s Republic of China, the National Health Commission of PRC, the Ministry of Emergency Management of PRC, the Ministry of Civil Affairs of PRC, the People’s Liberation Army (PLA), the People’s Government of Hubei Province and the People’s Government of the City of Wuhan; (2) agencies and instrumentalities which include the Wuhan Institute of Virology (WIV), Chinese Academy of Sciences and China CDC; (3) officials, i.e., Major General Chen Wei of the PLA and Shi Zhengli, “Director” of the WIV; and (4) a political party, i.e, the Chinese Communist Party (CCP).
7. As to the defendants in first two categories, they are entitled to immunity (28 U.S.C. §1603(a)) although the distinction between the sovereign itself and its separate agencies and instrumentalities is reflected throughout the FSIA (see David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges (2nd ed. 2018), 9 & 33).
8. With regard to the defendants in the third category, i.e., Major General Chen Wei and “Director” Shi Zhengli, they are not entitled to immunity within the meaning of the FSIA, as the U.S. Supreme Court has made it clear that the term “foreign state” should not be read to include an official acting on the state’s behalf. The Court took care, however, to note that a suit against such an official may nonetheless be precluded by common law principles of foreign sovereign immunity, following from the practice that had governed the immunity of individual foreign government officials prior to 1976. To be more specific, under the circumstance that a foreign state and a foreign official are sued as co-defendants and the foreign state is a required party the absence of which renders the suit against the foreign official meaningless or practically impossible, if the state enjoys sovereign immunity, the court would have to dismiss the action against the foreign official as well. Moreover, if a state is the “real party in interest”, an action against an official may be treated as against the state itself. (Samantar v. Yousuf, 560 U.S. 305, 325 130 S. Ct. 2278 (2010)). In this light, it is submitted that Major General Chen Wei and “Director” Shi Zhengli are entitled to immunity, though they are not covered by “foreign state” in the FSIA.
9. In Missouri’s lawsuit and some others (See, e.g., Aharon v. Chinese Communist Party & People's Republic of China, District Court, S.D. Florida, Case 9:20-cv-80604, Entered on 04/07/2020), the CCP is included in the list of defendants. Apparently, the complaints attempt to avoid the FSIA by arguing that the CCP is not covered by the statute. The Missouri AG cites Yaodi Hu v. Communist Party of China to reinforce the argument that the CCP does not fall under the FSIA.
10. However, such argument does not hold water. First of all, China is under the leadership of the CCP, which is enshrined as the most fundamental principle of Chinese Constitutional Law;Article One of the Chinese Constitution states that “[L]eadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics”. Therefore, separating the CCP from China is a purposeful distortion of Chinese political and legal system. Second, the case that the Missouri AG cites is but an unpublished opinion by a federal district court in Michigan finding. What’s more, there are some cases which may lead to the conclusion that CCP is covered by the FSIA (Saludes v. Republica De Cuba, 577 F. Supp. 2d 1243 (S.D. Fla. 2008); Chen v. China Central Television, No. 07-3882-cv (2d Cir. Apr. 7, 2009)). More importantly, the argument is self-contradictory: on one hand, it insists that the CCP is categorically distinct from China; on the other hand, it claims that the CCP should be accountable because China is a communist nation, and the CCP is the sole governing party within China. Such argument, needless to say, violates the principle of estoppel.
III.B. Whether exceptions to immunity apply
11. The FSIA provides for nine distinct and independent categories of exceptions to immunity from jurisdiction. With regard to these lawsuits against China for damages caused by the COVID-19, the complaints have invoked three of them: (1) commercial activity; (2) noncommercial torts; and (3) state-sponsored terrorism.
III.B.i. Commercial Activity
12. Most of the complaints allege the “commercial activity” exception provided in § 1605(a)(2) should apply. However, the complaints fail to explain why the activities of the defendants in question qualify as “commercial” activities, nor are they able to prove the activities in question have a sufficient jurisdictional nexus to the U.S. On the contrary, a careful reading of the complaints will lead to the opposite conclusion.
13. In most of the lawsuits, the plaintiffs allege that “the PRC admitted that the Wuhan police acted improperly” and that the defendants mismanaged the early part of the outbreak and mistreated Dr. Li Wenliang. These allegations are eye-catching; however, all these alleged acts, if true, are sovereign acts.
14. In addition, most of the complaints allege that the defendants knew that COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted in containing it, and/or covered it up for their own economic self-interest. Nevertheless, it should be emphasised that § 1603(d) of the FSIA provides that the “commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose” (emphasis added). Therefore, the alleged act of the defendants is not commercial by its nature.
15. Last but not least, no evidence has been presented to demonstrate that activities of the defendants in question have a sufficient nexus to the U.S. Indeed, the efforts made by the Chinese government has effectively delayed and weakened the international spread of the virus. From January 23 to April 8, the city of Wuhan were locked down for 76 days to contain COVID-19. It is widely believed that this world’s largest known quarantine has slowed the spread of the virus to the rest of the world by at least two or three weeks at the enormous sacrifice of China’s own economy.
III.B.ii. Noncommercial Torts
16. Although the noncommercial tort exception under § 1605(a)(5) aims to protect the tort victim against foreign government, this exception is applied with a high threshold, making the jurisdictional hurdle difficult to cross.
17. First, the exception covers only torts occurring “entirely” within the territory of the United States. Thus, the exception does not apply to torts occurring abroad, even if the tort is said to have been partially performed (or to have had an “effect”) in the United States (Argentine Republic v. Amerada Hess Shipping Corp., 441 U.S. 428, 434 (1989)). As the alleged tortious acts of the defendants were conducted exclusively on the territory of China, the exception does not apply.
18. Second, a foreign state is not liable for tort resulting from the exercise of a discretionary function (28 U.S.C. § 1605(a)(5). Since measures adopted to prevent or control an epidemic are largely discretion-based, which are closely related to the local economy, culture and custom, China is not to be held accountable for the acts with regard to COVID-19.
III.B.iii. State-Sponsored Terrorism
19. Some of the complaints argue that COVID-19 was designed by China to be a very “effective” and catastrophic biological warfare weapon to kill mass populations, therefore, the state-sponsored terrorism exception to immunity under the FSIA should apply. Whether the coronavirus is a man-made biological weapon is not a legal issue; furthermore, no sufficient bases have been presented to show that the state-sponsored terrorism exception could apply.
20. Pursuant to § 1605A, the main requirements of a claim brought under the state-sponsored terrorism include: (1) the foreign state had been formally designated as a state sponsor of terrorism at the time of (or as a result of) the act in question; (2) the plaintiff must sufficiently allege that one of the following specified acts has been committed: “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act”; (3) (when the acts in question occurred in the designated foreign state), that state was given a “reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration”.
21. However, none of the above statutory requirements have been satisfied: (1) as of now, China has not been formally designated as a state sponsor of terrorism by the U.S. (State Sponsors of Terrorism, U.S. Department of State, see https://www.state.gov/state-sponsors-of-terrorism/); (2) production, or leakage of a biological warfare weapon is not in the list of the above specified acts; and (3) China, apparently, has not been given an opportunity to arbitrate the claim.
22. In 2016, the U.S. Congress enacted a new exception to foreign sovereign immunity for domestic instances of “international terrorism” (The Justice Against Sponsors of Terrorism Act (JASTA), 28 U.S.C. § 1605B). JASTA is both broader and narrower than § 1605A. While it permits courts to consider cases against states that were not formally designated as “state sponsors of terrorism” at the time of the acts in question, it is limited to “acts of international terrorism” that have occurred in the United States. Accordingly, the immunity of the defendants cannot be removed under this section, as the alleged “terrorist” acts occurred exclusively in China.
23. China enjoys immunity from jurisdiction of U.S. courts in the above-mentioned lawsuits. This is a conclusion reached by an analysis of not only the Chinese perspective on sovereign immunity, but also the domestic law of the U.S.
24. Recent developments make it plain that the U.S. government is blaming China for its own failures in preventing the spread of the COVID-19, accusing China of delaying America’s response. China rightly considers those lawsuits “frivolous”, merely part of the American smear campaign against it. Thus, the possibility that China may respond to these cases via legal measures is significantly reduced. Consequently, China might not enter into appearance before the U.S. courts.
Notes about the author:
Zhengxin Huo is currently a Professor of Law at China University of Political Science and Law. He received his PhD. in international law from Wuhan University in June 2005. He is an associate member of the International Academy of Comparative Law, a member of the standing committee of China Society of Private International Law, and associate member of the Centre for Private International Law at the Law School of the University of Aberdeen, the United Kingdom. He is also a practicing lawyer of the PRC. Prof. Huo’s principal areas of teaching and research include private international law, comparative law and international law and he has published extensively in these areas. His recent works in English have been published in International & Comparative Law Quarterly, American Journal of Comparative Law, Hong Kong Law Journal, Asian-Pacific Law & Policy Journal, Journal of East Asia and International Law, International Journal of Cultural Policy and other journals. He has also published four monographs and more than sixty articles & review essays in Chinese. He may be contacted at email@example.com.