Larkin
Suing China Over COVID-19
Paul J. Larkin, Jr.
100 B.U. L. Rev. Online 91 (2020)
On April 21, 2020, the state of Missouri filed a lawsuit in the U.S. District Court for the Eastern District of Missouri against the People’s Republic of China (“PRC” or “China”) and various other parties.[1] 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 three months, put millions of people out of work, and killed thousands in the process.[2] 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.[3] None of the defendants has yet filed an answer to Missouri’s complaint. When they do, one issue that will be front and center is whether Missouri can sue the PRC and the other defendants consistent with principles of foreign sovereign immunity. Under the Judicial Code, the courts will decide whether Missouri can seek damages against China for injuries caused by the latter’s allegedly unlawful acts.
This Article is a prolegomenon on the issue of whether Missouri’s lawsuit can go forward. Part I will discuss the American history of the foreign sovereign immunity doctrine and the Foreign Sovereign Immunity Act of 1976 (“FSIA”), which largely codified the law existing at that time. Part II will analyze Missouri’s complaint to determine whether it satisfies the FSIA requirements for a lawsuit to go forward against a foreign nation. Part III then will discuss some recently introduced federal legislation to allow China to be sued over COVID-19. The bottom line is this: Missouri’s lawsuit does not look promising under current law. […] Read the full article.
[1] Complaint, Missouri ex rel. Schmitt v. People’s Republic of China, No. 1:20-cv-00099 (E.D. Mo. filed Apr. 21, 2020), ECF No. 1 [hereinafter Complaint]; see Thomas Jipping, What You Need to Know About Missouri’s Lawsuit Against China Over COVID-19, Daily Signal (Apr. 23, 2020), https://www.dailysignal.com/2020/04/22/what-you-need-to-know-about-missouris-lawsuit-against-china-over-covid-19 [https://perma.cc/VDQ9-XZ3Q].
[2] The New England Journal of Medicine has made publicly available its collection of medical articles about COVID-19. Coronavirus (COVID-19), New Eng. J. Med., https://www.nejm.org/coronavirus [https://perma.cc/2F8D-EPH9] (last visited June 1, 2020). For other sources of information regarding the pandemic, see, for example, Coronavirus (COVID-19), https://www.coronavirus.gov [https://perma.cc/CA7F-RG8R] (last visited June 1, 2020); Coronavirus (COVID-19), Ctrs. For Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/index.html?CDC_AA_refVal=https%3A% 2F%2Fwww.cdc.gov%2Fcoronavirus%2Findex.html [https://perma.cc/DYB6-RLQY] (last visited June 1, 2020); Coronavirus Resource Center, https://coronavirus.jhu.edu [https://perma.cc/KCP9-NEHQ] (last visited June 1, 2020); Coronavirus Disease 2019 (COVID-19), JAMA Network, https://jamanetwork.com/ journals/jama/pages/coronavirus-alert [https://perma.cc/4LX8-W7MA] (last visited June 1, 2020).
[3] Complaint, supra note 1, ¶ 1. In full, the complaint says:
An appalling campaign of deceit, concealment, misfeasance, and inaction by Chinese authorities unleashed this pandemic. During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment—thus causing a global pandemic that was unnecessary and preventable. Defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians, and they should be held accountable.
Id.