Opinion: No, China cannot be sued for coronavirus

I wish I could join the myriad views that demand that China be held responsible for allowing the causes to spiral out of control. The drum includes, for example, a class action lawsuit filed in Florida last week and the argument that we should treat the outbreak as an act of terrorism, because under US law. The USA, a country that sponsors terrorism, cannot claim immunity.

But I can not. If you want to argue that the Chinese government has behaved irresponsibly, that the country's officials deserve the world's condemnation for allowing the new coronavirus to escape when early action could have kept it under reasonable control, you will have no argument on my part. . Chinese authorities have chosen denial, censorship, and bravado instead of transparency that could have saved lives. The transmission of the obviously false information regime has made matters worse.

Legal liability, however, is another matter. The Chinese government is protected by the doctrine of sovereign immunity, and the regime's undoubted misconduct does not constitute sufficient grounds for an exemption.

Sovereign immunity is not a favor that courts do for foreign regimes. It is an act of reciprocity, a peace treaty that is based on a shared understanding that we will not allow our people to sue if you do not allow your people to sue us. So broad is the traditional doctrine that a British court held in 1894 that even if a foreign ruler moves into one's country, takes a false name and hides his true position, and signs a contract, a lawsuit against him for default is still prohibited.

Until 1952, the United States generally assumed the position that the immunity of foreign sovereigns was absolute. 1 That year, the State Department took the position that it would take a closer look at immunity claims when the case involved a trade dispute. That in turn led to the Foreign Sovereign Immunities Act, known as the FSIA, passed in 1976, a statute intended (in the words of a federal court) to protect foreign sovereigns from the burdens of litigation, including the cost and aggravation of the discovery.

The statute's protections are so broad that the US Supreme Court. USA He ruled that a foreign country does not even need to file a response to a complaint, what lawyers call appearing, for immunity to apply. 2 For example, when the family of a boy allegedly killed by a defective hunting rifle sued the manufacturer, a company owned by the Chinese government, the defendant did not bother to offer an answer in court. Instead, the company just sent the lawsuit documents to the plaintiff, and the company was deemed immune.

Of course, if control of a company is left in private hands, sovereign immunity offers no defense. The courts of the United States have been willing to go as far as to trace the real property of a foreign corporation, to make sure that a government controls most of the stock. This has also been applied to Chinese companies (Chinese companies are in high demand). 3 Even before the current outbreak, an increasing number of Chinese companies have been asserting sovereign immunity in US courts. But none of this would apply in a lawsuit against the Chinese government itself.

What about other exceptions in the statute? The Florida class action suit asserts that the exception for commercial activities applies, but it's not easy to see how. The suit also purports to fall within the exception for death or harm caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment. But that section specifically bars any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion is abused.” It’s hard to find a way around this restriction.

Yes, China's behavior has been reckless, but that possibility is embedded in the very idea of ​​sovereign immunity. Civil liability law is generally based on the proposition that people will take reasonable precautions if they know that they will be responsible for the damage they cause. Theorists refer to the process as forcing people to internalize the costs of their behavior; This internalization avoids the problem of moral hazard.

However, under sovereign immunity, the costs of government misbehavior tend to fall where they fall. That concern led to the adoption a few years ago of the exception for sponsors of international terrorism. There, at least, a part of the costs of reckless behavior will be internalized. But beyond a handful of small islands of civil liability created by legislation, the punishment for the recklessness of another country is likely to be political.

The Chinese government has essentially bet that it will not suffer any punishment, that politics will be its protection. But one wonders if this is true. The world has suffered trillions of dollars in losses from the recklessness of the regime. The economic consequences could well last a long time. Perhaps world leaders will act after all.

And even if they don't, a judge could. Until FSIA went into effect in the late 1970s, the State Department adjudicated sovereign immunity claims on a case-by-case basis. Since then, the courts have done so. Recent analyzes have suggested that court decisions about whether to grant sovereign immunity are often influenced by the politics of the time the State Department.

If this analysis is correct, it is easy to imagine that, no matter what world political leaders do, a handful of American judges could insist that some special aspect of the pandemic means that, after all, the Chinese regime is responsible under the FSIA. I'm skeptical that the judges are right, but I suspect a bipartisan coalition of elected officials would cheer them on

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