A sign of the times at many businesses during the COVID-19 pandemic in 2020 and 2021. (Photo by Joe Kovacs)
[Editor's note: This story originally was published by Real Clear Politics.]
By Henry Kokkeler
Real Clear Politics
In the wake of a recently introduced House bill that would allow American victims of COVID-19 to sue China, international relations experts don’t foresee U.S. courts becoming a battleground for litigious warfare with Beijing.
At issue for the bipartisan bill are four significant hurdles: whether legal precedents allow private citizens to sue China, partisan political considerations in Congress, the preferred approach to U.S.-China relations by the Biden administration, and definitive evidence on the origins of the coronavirus.
Introduced by Pennsylvania Reps. Brian Fitzpatrick, a Republican, and Democrat Conor Lamb, the legislation would also require an investigation of the World Health Organization, place an international ban on so-called wet markets, and create an international disease surveillance database.
When Fitzpatrick first sponsored the bill in June 2020, at least 14 lawsuits had been filed by businesses, individuals, and states against China for its presumed culpability for the pandemic (the lawsuits are still plodding through the legal system). Other members of Congress also introduced multiple bills intended to curtail China’s sovereign immunity -- a fundamental principle of international law that prevents countries from being sued by other countries and their citizens. These measures were all introduced by Republicans.
While the Congressional Review Service expressed doubt about the lawsuits’ potential for success, it’s May 15, 2020 report was less skeptical that Congress would make exceptions to America’s sovereign immunity law -- which Fitzpatrick and Lamb’s bill would do regarding countries “that have intentionally misled the international community on the outbreak of a health concern that leads to a pandemic.”
The bill also represents a bipartisan development in pushback against China. It was introduced alongside another bipartisan bill that would establish a 9/11-style commission to investigate the pandemic’s origins and create mechanisms to ensure future pandemic preparedness in the public and private sectors.
If they pass, Beijing “will almost certainly perceive this development as a significant and perilous turn” in U.S.-China relations, Titus C. Chen, deputy director of the Center for Southeast Asian Studies at the National Sun Yat-sen University in Taiwan, told RealClearPolitics. “It is most likely that China will respond in kind.”
The Foreign Sovereign Immunities Act, passed in 1976, prevents most lawsuits from being brought by citizens of one country against another. This is meant to encourage diplomacy and avoid turning domestic courts into an outlet for international relations.
But the FSIA includes two major exceptions. A “commercial activities” exemption occurs when a foreign state carries out a commercial activity on U.S. territory or elsewhere that has a “direct effect” on the United States. And a “territorial tort” exception occurs when a foreign state commits a wrongful act on American soil resulting in death, personal injury, or damage to and loss of property. If a lawsuit succeeds, enforcement of any ruling typically involves the seizure of foreign assets, which is what happened when kidnapped American journalist Terry Anderson was awarded a multimillion-dollar settlement in frozen Iranian assets in 2002.
The Justice Against Sponsors of Terrorism Act added another exception. The 2016 bill, passed by the Senate in the only veto override of Barack Obama’s presidency, allows victims of international terrorism to sue foreign sponsors of those actions. This allowed victims of 9/11 to sue Saudi Arabia for any role it played in the attacks.
In a statement on his bill, Fitzpatrick said that “the Chinese Communist Party has been intentionally and maliciously misleading the rest of the world about the scope and spread of the novel coronavirus.” Although Beijing was accused by former Secretary of State Michael Pompeo of covering up the outbreak, the verdict is still out on its origins: The two leading theories are that COVID-19 emerged from a wet market in Wuhan or escaped, intentionally or not, from a virology lab in the city. In May, President Biden announced a 90-day intelligence inquiry to probe the coronavirus’s origin. The report is expected to be made public.
The announcement of the probe followed a Wall Street Journal revelation of previously undisclosed information that three employees of the Wuhan Institute of Virology contracted a severe illness and were hospitalized in November 2019. It also comes on the heels of “deep concerns” held by the Biden administration about the WHO’s findings on COVID-19’s origins and China’s influence on the organization. Beijing has rejected efforts to allow other nations to conduct independent investigations in the country.
Experts doubt that Fitzpatrick’s legislation will get traction. According to Daniel Blumenthal, former senior director for China and Taiwan policy in the George W. Bush administration, even if it passes “we need things like blood samples from lab workers, which we will never get,” he told RCP. He instead proposed an alternative approach: “We should stop cooperation in biotechnology with the CCP.”
Blumenthal, who is also the director of Asian studies at the American Enterprise Institute, believes America should “lead an international effort to thwart” China’s ambitions to become a global power in scientific developments and biotechnology. He also believes the U.S. needs a surveillance institute in Taiwan to “vet all information about the spread of viruses from and in China'' early on.
“Since China has destroyed and covered up all evidence that would point to a lab leak from WIV, it will be very difficult to successfully sue anyone in the CCP,” he said.
In an interview with RCP, Robert S. Ross, a professor of political science at Boston College, rejected claims of a cover up, saying, “We have no evidence of that.”
“The best the CIA can offer discounts the possibility that it was a lab release,” Ross added. The WHO report, which faced scrutiny from the Biden administration, and the Defense Intelligence Agency reiterate this view. Ross doesn’t believe the 90-day probe will produce a different conclusion from what is already known.
He described the Fitzpatrick/Lamb bill as political posturing and suggested that taking a hard line with China would backfire. Beijing authorities will only “become increasingly skeptical of the possibility of cooperating with the Biden administration when they can see what direction the Congress is going.”
Ross suggested the government find ways to minimize the likelihood of another pandemic and maximize cooperation to reduce its potential spread. “As long as you are calling the Chinese leadership liars, you’re not going to get their cooperation,” he said. Dr. Anthony Fauci recently echoed this view on MSNBC, saying that if America wants Chinese cooperation, “don’t be accusatory.”
On concerns about the WHO’s integrity, Ross said that the reality of international organizations is that “governments control access. … Of course it’s political. It’s better to have limited access than no access,” and America needs the WHO if it wants to be able to operate in another country.
“If you think the WHO did a poor job, the answer is to stay within it and reform it than to walk away,” Ross said. And until the pandemic is over, the organization “can play a vital role distributing vaccines.” It has already played a key role in enhancing collaboration with scientists around the world and educating countries about pandemics, he said.
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