By Jacques deLisle*
(FPRI) — Attempts in the United States to use legal means to hold the People’s Republic of China responsible for its role in novel coronavirus-linked harms are legally flawed and politically fraught. So far, they have taken several forms, each problematic in its own way—often a case of bad lawmaking or reflecting heated politics, domestically and internationally. This need not be so. Other, more promising ways to use law to promote accountability and, more importantly, to help reduce risks of future similar crises are possible. But they require a more engaged and less adversarial approach to international legal norms and related political ones—and to China—than will be forthcoming from Washington, at least under the Trump administration.
To date, American efforts to invoke law to address China’s role and hold China accountable for the COVID-19 pandemic have included: lawsuits brought—necessarily under existing law—by private class action plaintiffs and state attorneys general; proposed legislation to strip China of immunity from suit and create new grounds for legal liability; and calls from members of Congress, the Trump administration, and others to, in various forms, sanction or punish China through proposed measures that implicate international law.
Litigation: Hard Cases under Existing Law
The several class actions and two state attorney general lawsuits filed so far can provide legal remedies only if they can proceed under existing law. Their prospects are not good. They face the formidable barrier of the immunity from suit that U.S. law—here largely tracking customary international law—gives to foreign states, their state organs, and directly state-owned corporations. The relevant U.S. law—the Foreign Sovereign Immunities Act (FSIA)—carves out several exceptions to immunity, but courts are unlikely to find the claims against China over COVID-19 to fall within them.
A principal exception denies immunity for “commercial activities”—primarily, instances in which foreign state entities do things that a private company might do, such as making and breaching contracts or issuing and defaulting on bonds. But the alleged Chinese misdeeds at issue in the coronavirus suits are overwhelmingly regulatory—lax safety practices at state laboratory facilities that unsubstantiated accounts identify as the origin of the virus, failure to take proper steps to contain or inform the world about the outbreak, a government embargo on exporting personal protective equipment, and so on. Moreover, even if there were “commercial activity” by Chinese defendants, the exception to immunity requires that the activity be conducted in or cause a “direct effect” in the United States—a standard that has been interpreted relatively narrowly and will be exceedingly difficult for those suing China to meet.
Another major exception denies immunity for some torts. Although perhaps seemingly more promising and relevant (in that plaintiffs’ substantive claims are almost entirely tort claims, rather than, say, contract or property claims), the China COVID-19 suits are unlikely to fit within this exception, which primarily provides for liability where a foreign state’s agents commit the types of wrongs that a private actor might, such as an automobile accident caused by an embassy chauffeur’s careless driving. On rare occasion, U.S. courts have denied immunity for especially egregious torts that are clearly political in nature and the product of exercises of distinctly state powers, such as assassinating political dissidents who have fled to the United States. With the exception of the most extreme and unsupported charges (such as those attributing COVID-19 to China’s intentional or reckless release of a potential biological weapon), China’s purported actions in triggering the pandemic do not reach this level. Instead, they are likely to be found to fall within the zone of immunity that extends to foreign state actors’ performance of “discretionary functions”—that is, policy judgments, even reckless or willful ones that are abuses of the state’s powers. Moreover, the tort exception applies only where the wrongful acts “occur” in the United States—a requirement that U.S. courts have construed relatively narrowly and that precludes liability where only the harmful consequences take place in the United States.
The commercial activity and torts exceptions align with established customary international law’s “restrictive” theory of sovereign immunity (as opposed to the older, “absolute” theory of sovereign immunity, which the U.S. belatedly abandoned decades ago and which China still officially embraces). In relatively recent times, the U.S. has twice amended its principal law on foreign sovereign immunity to create exceptions for state terrorism—in principle, a relatively uncontroversial move under international law in light of a global consensus that acts of international terrorism violate an especially fundamental rule of international law. U.S. foreign sovereign immunity law’s terrorism exceptions are unlikely to helpful for China-targeting COVID suits, however. Again, setting aside the most radical and unsubstantiated allegations, the acts attributed to the Chinese state and state-linked entities in connection with the pandemic are morally and politically damning, but they fall short of even elastic definitions of terrorism, as well as the legal standards that would be applied by U.S. courts in adjudicating sovereign immunity. Moreover, one of the terrorism exceptions requires that the foreign state be on a list of U.S. government-designated “state sponsors of terrorism”—a very short list that surely will not expand from the likes of North Korea, Iran, Syria, and Sudan, notwithstanding the poor and rapidly deteriorating state of U.S.-China relations. The other terrorism exception (adopted to permit suits against Saudi Arabia over 9/11) echoes the traditional tort exception in requiring that the relevant terrorist acts take place in the United States.
Some of the suits name the Chinese Communist Party (CCP) as a defendant. The empirically well-founded claim that the CCP penetrates and can control Chinese government institutions and some major enterprises is not, however, a highly promising means for overcoming the barrier of sovereign immunity in U.S. lawsuits. Courts can be quite skeptical of attempts at end runs around immunity law by nominally suing a non-governmental entity when the real target is the foreign state and its actions. And attempts by litigants to portray Chinese government institutions and state-linked companies as mere alter egos in a unitary “China, Inc. plus” have not fared well in other, less exotic U.S. judicial proceedings against Chinese parties.
Plaintiffs also face more mundane legal difficulties. The standards courts apply for certifying class actions are exacting, and prospects are poor where the members of the putative class assert the diverse interests and disparate harms recounted in the initial batch of China-targeting coronavirus suits. The state attorney general suits may fail on issues of standing—having a sufficiently concrete and direct interest in the case—because (to take the example of the suit by brought by the Missouri Attorney General) the state claims to be suing on behalf of its citizens to protect their interests. The indirectness of harms to the state’s own interests is a challenge for the claims that seek recovery for Chinese state actors’ impact on U.S. states’ budgetary outlays for unemployment benefits, health care costs, and other social welfare spending—effects that unfold through defendants’ role in COVID-19’s eruption in China, the disease’s subsequent spread to the United States (and, arguably, the U.S.’s unexpectedly inept response), and the resulting job losses and needs for medical care, and other social services.
Finally, even if all these hurdles could be cleared, many of plaintiffs’ substantive legal claims—mostly torts—would be at best expansive under established law and in some cases implausibly so. The Missouri Attorney General’s suit, for example, claims that Chinese defendants owed and breached broad affirmative duties to protect the well-being of U.S. citizens, or to provide needed resources (such as PPE) to U.S. customers, or to warn the world about the virus. Chances that courts will find for plaintiffs on such claims, and more conventional ones as well, are further diminished by their need to base liability on the complex, lengthy, and indirect causal chains that link the alleged failings of actors in China to harms in the United States, and arguments that those harms were reasonably foreseeable consequences of the defendants’ actions in China.
Why would plaintiffs bring suits that seem to rest on such shaky legal grounds—all the more so when a victory in court very well might not lead to awards that could be effectively enforced against Chinese defendants? Politics, not money, is often the main motivation for legally iffy and politically charged litigation. In several decades of lawsuits in U.S. courts over human rights violations by foreign states, officials, agents, and companies, plaintiffs—who knew they had limited prospects for prevailing and slimmer chances for receiving compensation—were driven to sue largely by the hope of exposing facts through the litigation process or winning moral victories through ruling by neutral courts that in various ways vindicated or validated their claims (with, or sometimes without, a favorable judgment on the merits). Politics appears to be very much in play the China-targeting COVID-19 suits. The factual allegations in many of the suits echo the criticisms of Chinese behavior from both sides of the U.S.’s deep political divide, but especially from the right. At least one of the class actions is spearheaded by the right-wing organization Freedom Watch. The pair of state Attorney General suits were brought by Republican officials from deep-red states.
Legislation: Changing the Law amid Partisan Politics
Similar political agendas are evident in another approach to using law to address China’s role in COVID-19: legislation proposed by conservative Republicans in Congress to amend the Foreign Sovereign Immunities Act to deny China and Chinese state-linked actors immunity, and to create new legal bases for suing China, including for actions and harms that already have occurred. One bill, from Senator Josh Hawley, asserts many acts of obstruction at home and abroad by China as causes of the pandemic’s harms in the United States, and adopts a new exception to sovereign immunity—and creates a cause of action (that is, a legal right to sue and recover) for private plaintiffs and state Attorneys General—in cases where a foreign state, its officials or agents recklessly acted, failed to act, or failed to report information, in ways that caused or substantially contributed to COVID-19 harms in the United States. Other legislation, from Senator Tom Cotton and supported by Representative Dan Crenshaw, offers a broadly similar but shorter recitation of Chinese misdeeds, strips immunity from foreign states for tortious acts (wherever occurring) by those states, their officials or agents that led to harms in the United States caused by the spread of COVID-19. Another specifically China-focused bill, from Senators Marsha Blackburn and Martha McSally, adds an exception to sovereign immunity and authorizes suits against foreign states that intentionally or unintentionally release a biological weapon, resulting in harm to U.S. nationals or their property. Still another proposed law, from Representatives Chris Smith and Ron Wright, criticizes China’s dealings with the World Health Organization (WHO) in the context of COVID-19, and would expand the FSIA’s tort exception to sovereign immunity to cover harms due to “grossly negligent” misrepresentations to the WHO concerning highly infectious diseases.
If these proposed laws were to be adopted, they would open the courts to lawsuits that very well could succeed where suits brought under existing law are likely to fail (and some of the proposed changes would make enforcement of judgments against Chinese-owned assets more feasible as well). Although the prospective laws’ conformity to international law is open to doubt, U.S. courts would consider the amendments to be within Congress’s constitutional powers and would follow the lawmakers’ mandate. That does not mean, however, that the proposed changes to U.S. law will provide an effective pathway to hold China accountable.
It is uncertain whether any of the China coronavirus bills will become law. Much provocative foreign policy legislation does not. Although the long-standing bipartisan consensus in Washington favoring constructive engagement with China has been superseded by calls from across the political spectrum to adopt much tougher policies toward China generally (and all the more so with the advent of COVID-19), passing the proposed legislation would require support from congressional Democrats who surely are wary of abetting the Trump administration and Republican legislative strategy to deflect attention and blame toward China and away from the federal government’s tardy and inept handling of the pandemic. A more normal president might push back against legislation that would complicate relations with a major power or constrain the president’s discretion in foreign affairs. Trump’s overall highly erratic but sometimes highly positive statements about China and Xi Jinping could have a broadly similar effect. This possibility is diminished, however, by the legislations’ possible contributions to a “blame China” reelection strategy.
The bills—and particularly those introduced by Hawley and Cotton—echo another relatively recent, highly politicized, and event-driven amendment to the FSIA—the Justice Against Sponsors of Terrorism Act (JASTA), enacted in 2016 to remove obstacles to lawsuits seeking to hold Saudi Arabia liable for its role in the 9/11 terrorist attacks. The saga of JASTA offers something of a cautionary tale about the wisdom and efficacy of resorting to such immunity-stripping legislation. JASTA was highly controversial, adopted over President Barack Obama’s veto and with some members of Congress who voted the bill expressing regret that it had become law. JASTA was adopted amid pointed warnings about how it would damage U.S. foreign policy, national security, and international economic interests. These concerns may have been significant with respect to Saudi Arabia. They are much greater in the case of China—the world’s second most powerful state and second largest economy, and a uniquely important economic partner and economic and geopolitical rival for the United States. Moreover, Beijing has the capacity, and quite possibly the will (amid the escalating mutual recriminations over COVID-19), to adopt a much more confrontational stance, and to take much more consequential countermeasures, toward Washington than Riyadh plausibly could have contemplated. Such worries are surely on the agenda of the relative “doves” on China policy in the Trump administration and might exert some moderating pull even on some of the administration’s China policy “hawks.”
To be sure, predictions about the harm JASTA might inflict on U.S. national interests proved overblown, but that may be due in part to JASTA’s limited impact to date, in terms of providing court victories or tangible benefits to 9/11 plaintiffs. The same may—or may not—be true if some of the China-targeting COVID-19 amendments to the FSIA were to be adopted and implemented.
Foreign Policy Measures: International Law and Accountability
U.S. domestic laws—whether existing or contemplated—hold some promise for those who seek to make China accountable for its role in the coronavirus pandemic, but the potential effect—and much of the aim—is political, and the task is inescapably international. The political and international dimensions of efforts to pin responsibility on China for COVID-19 and its effects in the United States have been more evident and central in incipient discussions of several moves that the U.S. government might take to punish China. Not surprisingly, given the Trump administration’s vociferous contempt for international institutions and its deep-seated distrust toward international law, the international legality of possible U.S. government moves—or even the Chinese actions to which they would respond—has not been a prominent feature of the administration’s public discourse. Also characteristic of Trump-era foreign policy, the administration’s approach has been, at least initially, fragmented and polemical. Nonetheless, an agenda to blame China for serious harms in the United States and elsewhere does invite or resonate with arguments that Chinese actions or omissions constitute international legal wrongs. And talk of measures—ones the Trump administration sees as justified—to impose consequences on China raises questions about their international legality.
The Trump administration’s threats and musings have focused primarily on what international law calls countermeasures (that is, self-help moves to redress China’s alleged violations of international obligations). Here, there has been something of a grab-bag: general calls for China to pay reparations for COVID-19-related costs and harms in the United States, more specific threats to raise tariffs or impose other trade sanctions on Chinese imports, and looser talk of refusing to pay U.S. government debt held by China or taking China-owned assets in the United States. Such moves would pose discrete problems of international law. Hiking tariffs or adopting trade sanctions against China would raise serious questions under World Trade Organization (WTO) law that contemplates only very limited non-trade-related grounds for such measures. A selective default on Chinese-held U.S. debt follows a classic recipe for international legal liability for the non-paying state. It also would be a nearly impossible undertaking, given the liquid market for U.S. government debt, an act of economic folly, given the likely catastrophic effect on U.S. credit and the global economy, and a case of policy futility, given China’s likely ability to dump U.S. debt in anticipation of selective repudiation by Washington. Expropriating Chinese state-owned or state-linked property held in the United States—and doing so without compensation—could run afoul of several international legal rules, including foreign sovereign immunity and obligations to respect rights of alien property owners.
More broadly and fundamentally, such U.S. countermeasures (at least those that would otherwise violate international legal obligations) are legitimate only to the extent that they would be responses to China’s breach of international law or legal obligations owed to the United States. This is, in a sense, a technical legal point, but it is politically salient and potent. In what has become a highly charged mutual blame game between Beijing and Washington, the competition turns heavily on which regime can claim the moral high ground, and the party that can assert convincingly that international law is on its side enjoys an advantage—especially where the international law at issue has normative weight. On this score, the Trump administration’s efforts have been underwhelming. This is consistent with its low regard for international law and the related international politics of multilateralism, and perhaps also reflects a recognition of the poor prospects of any effort to invoke legal norms it long has snubbed or undermined.
A more engaged and creative approach to international law could assist in addressing international responsibility for the coronavirus crisis and—more importantly—ameliorating political and institutional pathologies that helped unleash the pathogen. Articulating international law-based and law-tinged arguments can exert normative pressure on (ir)responsible actors and legitimize measures to induce changes in their dangerous behavior. It also can suggest pathways to improving rules and institutions, in part by reviving or extending existing norms and principles. Even at this still-early phase of responding to the COVID-19 crisis, it is possible to discern some examples of relevant legal ideas and options.
First, forging robust and detailed international legal obligations to provide prompt and transparent reporting of potentially serious and widely communicable illnesses, and to cooperate with other states and international institutions in relevant fields, including through investigations during and after incidents. Something akin to this idea has been in play in the U.S.-China disputes over COVID-19, but it has not gone very well. The escalating conflict between the Chinese regime and the Trump administration has done much to politicize the colorable argument that China’s slow and incomplete disclosures to the WHO violated Beijing’s obligations under the International Health Regulations (IHR), particularly as revised in the wake of the SARS outbreak of the early 2000s. The legal argument itself is contestable and contested, in part because the IHR’s requirements are relatively sparse and undemanding. And the WHO’s authority has been undercut by its early excessive praise for China’s response, by the solicitude that the WHO—like many international organizations—must show toward member states (especially the most powerful ones), and by the Trump administration’s condemnation of the principal global public health body as a Chinese puppet undeserving of the crucial funding the U.S. has long provided. Despite this inauspicious state of affairs, capacity to address effectively the dangers of future pandemics could be enhanced by a reinvigorated and relegitimated WHO and more exacting and potent rules for early disclosure and cooperation, backed by an international community jolted into appreciation of the threats posed by new diseases in an era of recently battered but likely enduring globalization.
Second, using analogies—and, importantly, disanalogies—to situations that make it lawful to adopt tough, potentially destabilizing and escalatory measures against other states (and non-state actors). The most extreme example is the permissible use of force by states in self-defense. A heightened degree of attention to international law and a relatively disciplined legal analysis can push back against the temptation to highly capacious and self-serving interpretations, while also preserving principled foundations for tough, collective international responses to dire threats. The dangerously permissive side of this delicate balance has been evident in some U.S. reactions to China’s roles in COVID-19. Proposed legislation in Congress and possibly confused insinuations from Secretary of State Mike Pompeo suggesting that the novel coronavirus might be a biological weapon skate perilously close to asserting the types of grounds that have been invoked, controversially, to defend resorts to extraordinary, even forcible measures—especially against the backdrop of a steady expansion of purported legal rights of self-defense to permit not only force to counter actual armed attacks, but also anticipatory, preventive, and (with the U.S.’s war in Iraq) preemptive self-defense.
If one discards the relatively clear lines that international law draws between force or aggression (on one hand) and other types of often painful and effective coercion (on the other hand), the sheer scale of harm and potential harm from COVID-19 invites the wartime metaphors favored by President Donald Trump and inferences that a worse-than-war scale of loss justifies the types of steps that would be taken against an enemy state. On the other hand, the lessons that international law learned, and sought to teach, in the aftermaths of the First and Second World Wars can serve to remind leaders and policymakers of the fragile but vital promise of states’ acting collectively to deal with collective perils—whether the aggressive warfare and mass killings of the twentieth century or the ravaging communicable diseases of the early twenty-first century and beyond.
Third, applying lessons drawn from relatively new or recently emerging areas of international law that address issues similar to those implicated by pandemic diseases. The international law of human rights in the post-war era and climate change in more recent times offers a range of insights that bear on a search for international means to address potential pandemics. To be sure, human rights law and law addressing climate change are too often honored in the breach and arguably illustrate international law’s limits and frustrations. Yet, they also show that states have understood that legal rules and obligations can be among the set of vital—if still possibly inadequate—means for addressing global issues that severely imperil human well-being. And they pointedly frame international obligations in terms not of contract-like bargains among states contemplating remedies for flaws in performance, but as obligations owed generally to the world at large and to be pursued imperfectly but progressively. In both these respects, approaches to global public health have lagged, as has been reflected all too well in the all-consuming and often zero-sum discourses over responsibility for and responses to the coronavirus pandemic.
Finally, drawing upon the expanding—but not infinitely expansive—notions that international law provides of responsibility for failures to act. On issues ranging from state responsibility for armed incursions issuing from its territory, to state responsibility for failure to regulate cross-border polluters, international legal rules distinguish, in relatively fine-grained ways, among situations that do and do not warrant holding a state liable for its omissions. In the framework for the International Criminal Court’s powers and in the evolving principles of “responsibility to protect” against severe human rights violations and humanitarian crises, international law assigns primary responsibility to states to address problems arising within their jurisdictions, while authorizing the international community to intervene where a front-line state shows itself “unwilling or unable” to fulfill its obligations. Therein lie potential correctives to the COVID-19 dynamic of U.S. charges that embrace highly expansive notions of China’s culpable omissions and affirmative obligations (ones to which the U.S. surely would not assent if the roles were reversed) and that seem almost tailormade to elicit confrontational responses from Beijing—ones that revert to old habits of taking extreme umbrage at supposed efforts to infringe on China’s sovereignty.
These admittedly modest and oblique promises of international law face political challenges in the United States, clearly under a Trump administration, but also in any post-Trump Washington that—compared to the post-war and post-Cold War eras—is less willing to invest in international public goods, less confident that established and emerging international institutions and laws align with U.S. interests, and much more skeptical that a largely cooperative (or, in the PRC’s favored phrase “win-win”) relationship with China is possible.
The views expressed in this article are those of the author alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.
*About the author: Jacques deLisle is Director of FPRI’s Asia Program, Stephen A. Cozen Professor of Law, Professor of Political Science, and Director of the Center for the Study of Contemporary China at the University of Pennsylvania.
Source: This article was published by FPRI