Why China’s $50 billion lawsuit against Missouri is going nowhere | Opinion
Sen. Eric Schmitt looks like he has the Chinese running scared with his pioneering lawsuit against important institutions in the nation over the COVID-19 pandemic. They lashed out this week targeting him and the state of Missouri along with two other current and former Missouri attorneys general for defamation against China, Wuhan province and the Wuhan Institute of Virology. The suit, filed in a Wuhan intermediate court, demands the state pay $50.5 billion in damages.
The new legal salvo could be interesting if Missouri and its current and former lawyers decide to defend the case in Chinese court. There is a growing body of evidence that COVID-19 was the result of a lab leak in Wuhan that the Chinese government should pay for. It would be interesting to see that information submitted to a Chinese court. Even if the communists’ game is fixed, their reaction would be priceless.
If that evidence were persuasive and the rest of the world decided to jump in with their own suits, damages could be unimaginable, certainly in the trillions. But there’s one small hiccup that makes justice for Missouri, and the rest of the world, highly unlikely. That’s sovereign immunity.
Sovereign immunity is the idea that as countries such as China and the United States are theoretically “equal” in international stature. China is not subject to U.S. courts and the U.S. (and Missouri) are not subject to Chinese courts. You can imagine what a mess the world would be if citizens of different countries were always suing other countries in their own domestic courts. That’s why it is written into the 11th Amendment to the Constitution.
Sovereign immunity is also the reason that the $24 billion verdict that Missouri won against China isn’t about COVID-19 itself or who released it from a lab and why, as Schmitt touted when he filed the suit as then-Missouri attorney general. The damages are due to the fact that China and the businesses it controlled bought and sold personal protective equipment in both the United States and elsewhere in ways that looked like hoarding in the early days of the pandemic.
There’s one big exception to sovereign immunity: commercial activities. When a government acts as an ordinary business would — buying or selling products, for instance — then it is subject to U.S. courts just like any ordinary Chinese business doing its work in the United States would be.
All this complicated knowledge wasn’t just lying around in my brain waiting to come out today. I had to talk to James Robbins, the dean of the Institute of World Politics graduate school in Washington D.C. He says I am wrong that China is running scared.
This lawsuit he says is a poker game with the United States. China saw our $24 billion and raised to $50 billion. The communists — and this lawsuit had to be approved or even ordered high up in the Chinese Communist Party — are telling us that they are going to demand we stand by sovereign immunity or they are going to make us pay, too.
And whether Sen. Schmitt and Missouri know it, the United States has already folded. There is one way that the U.S. could hold China accountable for COVID-19 in our own courts if we wanted to, but we have decided not to.
In the past when, for instance, Iran funded or otherwise backed terrorists, the United States wrote into law exceptions to sovereign immunity so that Americans could file lawsuits against the governments that backed violence against them. Most recently we did that after 9/11, allowing lawsuits against Afghanistan.
Congressmen introduced such legislation in 2020, but it went nowhere. A legal fight with Afghanistan is an entirely different thing than a legal fight with the world’s second largest and fastest growing economy. More likely than not, Congress decided that is a fight that would cost too much to win.
In the end these lawsuits will peter out with neither side collecting much of anything. We’ll get a bunch of headlines and spend a bunch on lawyers but none of them will actually go to China to plead our case. The Constitution and Congress rule the day, and they both say this is going nowhere.
David Mastio is a national columnist for The Kansas City Star and McClatchy.
