On April 21st, 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 the Corona virus. According to General Schmitt, the Corona pandemic was caused by action and inaction of the Chinese authorities. This is a weak case for a number of reasons: 

1. First, the evidence mainly consists of US 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.

2. Second, foreign states, like China, enjoy immunity in American courts under the US Foreign Government Immunities Act. General Schmitt has tried to circumvent this bar in three ways:

2. He has also listed the Communist Party of China as a defendant, while claiming that it is not part of the Chinese state system. This position is contrary to international law, according to which state immunity extends to all organs, components, and entities of the state, which, of course, also includes the Communist Party. Additionally, the Communist Party, which according to its Constitution exercises the overall leadership in China, is the supreme state authority. Furthermore, the Secretary General of the Communist Party also serves as the head of state, who by definition enjoys the protection of state immunity.

2. In addition, he has invoked the commercial activities exception to sovereign immunity by claiming that the conduct which allegedly caused 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 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 characterised as being ‘commercial’, they were not carried out in the US which is necessary for the exception to apply.

2. Finally, he has invoked the tortious conduct exception by claiming that the activities which allegedly caused the pandemic amounted to torts occurring in the US. Since the activities took place outside the territory of the US this exception does not apply either. 

3. Third, in the unlikely case that the Court would refuse to grant China immunity, the claim would face insurmountable barriers at the merits stage. Thus, the complaint clearly interferes with US foreign policy towards China, which currently amounts to a balancing act involving highly sensitive trade negotiations, and is therefore bound to be declared a non-justiciable political question. Furthermore, the outbreak of the Corona virus, which was declared a Public Health Emergency of International Concern by the WHO, is covered by the defence of force majeure, or alternatively, the defences 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 corona crisis by attacking China.

Bringing this case will not benefit anyone, perhaps with the exception of the lawyers preparing the 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

Professor of Cross-cultural Law, Utrecht University