I have an op-ed in today’s Washington Post entitled "Suing China Over the Coronavirus Won't Help: Here's What Can Work" about the spate of class action lawsuits against China relating to the novel coronavirus and legislation proposed by Senators Tom Cotton and Josh Hawley (among others), apparently based on the 2016 Justice Against Sponsors of Terrorism Act (JASTA), to strip China of its sovereign immunity. I argue that lifting China's immunity would be a mistake. Here are excerpts:
At least six lawsuits have been filed against China in U.S. federal courts seeking damages for deaths, injuries and economic losses caused by covid-19. Members of Congress have drafted legislation to strip China of its immunity from suit in U.S. courts. Even if enacted, these congressional efforts are unlikely to pave the way for successful lawsuits — and they could prompt China to take reciprocal measures against the United States. China should be held accountable in other ways, including through diplomatic pressure and a thorough U.S. investigation of Beijing’s role in concealing and failing to stop the spread of covid-19.
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.
Congress should also remember that, after voting for JASTA in 2016, some Republican lawmakers immediately expressed misgivings. Senate Majority Leader Mitch McConnell (R-Ky.) said removing the immunity of foreign governments could have “unintended ramifications” and tried to blame the Obama administration for “failure to communicate early about the potential consequences.” If Congress repeals China’s sovereign immunity in the heat of this election year, the U.S. government is likely to regret it later.
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.