Suing China Over COVID-19

Abstract

On April 21, 2020, the state of Missouri filed a lawsuit in federal court against the People’s Republic of China and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last two months, put millions of people out of work, and killed thousands in the process. According to the complaint, Chinese authorities pursued “[a]n appalling campaign of deceit, concealment, misfeasance, and inaction” causing our current “unnecessary and preventable” global pandemic.

The threshold issue is whether Missouri can sue under the Foreign Sovereign Immunities Act of 1976 (FSIA). Missouri’s lawsuit does not look promising under current law.

Missouri claims that China has engaged in “commercial activities” that allow this suit to go forward, but Missouri’s alleged injuries are not “based upon” those activities, as the FSIA requires. Missouri also alleged that it can sue China in tort for their response to the virus, but the FSIA does not allow foreign governments to be sued for their “discretionary functions,” even when they abuse that discretion. Missouri alleges that the Chinese Communist Party is the ultimate authority in China, but does not allege that it lacks discretion over choosing its response to COVID-19. Missouri therefore has an uphill climb to avoid dismissal.

Keywords: COVID-19, China, Sovereign immunity, Foreign Sovereign Immunity Act