In an article for The Washington Post, John B. Bellinger III of Arnold & Porter details six lawsuits that have been filed against China in U.S. federal courts seeking damages for deaths, injuries and economic losses caused by COVID-19.

“Five of the lawsuits against China — filed in California, Florida, Nevada, Pennsylvania and Texas — are class-action suits filed on behalf of persons and businesses in the United States who have suffered injury, damage and loss related to the coronavirus outbreak. Missouri has sued China on similar grounds on behalf of itself and residents, and Mississippi has indicated that it plans to file proceedings. These suits are likely to be dismissed because foreign governments enjoy immunity from suit in U.S. courts under the Foreign Sovereign Immunities Act. The 1976 statute codifies long-standing principles of U.S. and international law that sovereign governments may not be sued in courts of other countries. The lawsuits claim to fall within statutory exceptions to immunity for tortious or commercial acts in the United States. But these arguments are likely to fail because there is no evidence that China committed deliberately wrongful acts in the United States or that covid-19 arose from China’s commercial activities here.”

Mr. Bellinger advises against raising the lawsuits, arguing in favor of sovereign immunity.

“Whatever the political temptation to allow lawsuits against China, especially during an election year, Congress should resist doing so. Sovereign immunity is based on reciprocity. The United States respects the principle of sovereign immunity not as a favor to other countries but because we expect other countries to respect and protect the immunity of the United States and its officials in their countries. The United States has protested vehemently when other nations have allowed investigations of the U.S. government or its officials for controversial military actions. If Congress allows lawsuits against China to proceed here, China may well retaliate by allowing lawsuits against the U.S. government or its officials in China for claiming that China had intentionally manufactured covid-19.”

However, he suggests that their are other more beneficial ways to hold China accountable,

“Opposing lawsuits against China does not mean that the U.S. government should not hold the Chinese government responsible in other ways. Legal immunity does not mean a lack of accountability. The Hawley bill, for example, would mandate a government investigation into China’s role in concealing or distorting information about covid-19. Better still would be a bipartisan commission, modeled on the 9/11 Commission, with a mandate to investigate the causes and spread of coronavirus and U.S. preparedness for and responses to the pandemic. It could make recommendations toward preventing and addressing future pandemics.

The United States should also publicly demand, including in international bodies, that China provide more information about covid-19. It should push other governments to do the same. U.S. officials should privately insist to Chinese counterparts that China must be transparent and cooperative with respect to global health issues in the future. Assertive U.S. diplomatic action is more likely to produce meaningful results for Americans than politically attractive, but ultimately feckless, lawsuits and battles over sovereign immunity.”

Read the full article here [subscription required].

John B. Bellinger, III

Arnold & Porter

John B. Bellinger, III heads Arnold & Porter's Global Law and Public Policy practice. He joined the firm in 2009, after holding several senior Presidential appointments in the US government, including as The Legal Adviser to the Department of State from 2005 to 2009 under Secretary of State Condoleezza Rice and Senior Associate Counsel to the President and Legal Adviser to the National Security Council (NSC) at the White House from 2001-2005. Mr. Bellinger previously was Counsel for National Security Matters in the Criminal Division at the U.S. Department of Justice; Of Counsel to the Senate Select Committee on Intelligence; General Counsel of the Commission on the Roles and Capabilities of the U.S. Intelligence Community; a lawyer at Wilmer Cutler & Pickering; and Special Assistant to Director of Central Intelligence William Webster. He is a Counselor for the Restatement of the Law Fourth, The Foreign Relations Law of the United States, project.

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