Angela Huyue Zhang

Opinion | Coronavirus-related US lawsuits against China risk a further worsening of relations, and could backfire

The passage of the Justice Against Sponsors of Terrorism Act in 2016 and its impact offer a glimpse into the possible knock-on effects of US lawsuits against China over its handling of the Covid-19 outbreak

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Angela Huyue Zhang

Published: 1:00am, 11 May 2020Updated: 1:31am, 11 May 2020

A flurry of complaints have been filed against China in US federal courts seeking enormous damages caused by China’s mishandling of the coronavirus outbreak. These include class actions filed on behalf of individuals and businesses from at least five different states, as well as a lawsuit by the state attorney general from Missouri, while Mississippi has also said it will file a case.

Plaintiffs from other countries are following suit. China has slammed this spontaneous order of litigations as “absurd”. Global Times, a state-run Chinese newspaper, responded by calling these litigations a political strategy to divert public anger away from the Trump administration’s ineptitude in handling the pandemic.

As a general principle of international law, foreign governments cannot be sued except under limited circumstances. This is based on the doctrine of reciprocity. If the United States permits lawsuits against other sovereigns, this could prompt other countries to take reciprocal measures, exposing US citizens and businesses to legal risks abroad. For this reason, many legal experts expect these lawsuits to fail.

Parallel to these lawsuits, Republicans are in the midst of proposing bills that will modify the Foreign Sovereign Immunities Act in an effort to strip China of its immunity from being challenged in US courts for Covid-19 damages. If Congress grants such a proposal, it could add new momentum to these litigations.

Missouri Attorney General Eric Schmitt speaks in front of the US Supreme Court in Washington on September 9, 2019. On April 21, Schmitt filed a lawsuit against the Chinese government, the Community Party of China and others, alleging that the hiding of information and other actions at the outset of the coronavirus outbreak led to loss of life and significant economic damage in Missouri. Photo: AP

This course of action is not new. In 2016, Congress adopted the Justice Against Sponsors of Terrorism Act (JASTA), which allows lawsuits to be filed against foreign governments for sponsoring acts of terrorism. The enactment of the bill has enabled victims of 9/11 to move forward with their long-standing lawsuits against Saudi Arabia, notwithstanding the absence of clear evidence of the Arab state’s involvement in the terrorist act.