Definitive proof, if found, that a laboratory accident at the Wuhan Institute of Virology (WIV) may have caused the Chinese coronavirus pandemic has the potential to break the nearly impenetrable shield of sovereign immunity protecting China from lawsuits by American victims of the virus.
American law protects foreign state powers from litigation on behalf of private persons through the Foreign Sovereign Immunities Act (FSIA). Mainstream diplomatic thought holds that sovereign immunity is a desirable policy to limit the power that individual citizens have to meddle in foreign policy, concentrating diplomatic powers in the state. The conventional wisdom holds that a legal system that allows any one citizen to demand redress from a foreign state, thus outraging it, gives that citizen the power to potentially destroy ties that the two governments may have spent decades building, making for a volatile system.
The FSIA text does allow for lawsuits by American citizens against states in limited settings: cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state” or acts of state-sponsored terrorism (a modification to the law prompted by a failed lawsuit against Iran), for example.
If Chinese Communist Party officials were complicit in acts that led to a laboratory accident, or deliberate leak, at the WIV, another exception may apply:
Cases in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and 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.
Congress can also override sovereign immunity in two ways: amending the FSIA itself, as in the case of the terrorism exception, or passing an entirely new law applying the principles of FSIA to a specific case. Congress did this in 2016, passing a law allowing victims of the September 11, 2001, terrorist attacks to sue the state of Saudi Arabia. The Justice Against Sponsors of Terrorism Act (JASTA) passed over a veto by President Barack Obama, who expressed reservations that the law would prompt similar lawsuits against the United States for civilian deaths occurring in American military operations during the Afghan war, among other scenarios.
The Chinese Foreign Ministry virulently opposed the passage of JASTA, perhaps fearing its journey would set a precedent that could result in Americans suing the Chinese state and courts, as a result, freezing Chinese assets on U.S. soil.
Torts require plaintiffs to prove tangible loss – easy for survivors of Chinese coronavirus and the families of lost loved ones. Individuals with causes of action against China may not be only those directly touched by the virus, however, but those who could prove significant material loss as a result of the pandemic: entrepreneurs who lost their businesses or suffered significant financial consequences as a result of the pandemic. The number of people meeting the requirements to be a legitimate plaintiff if the U.S. lifts sovereign immunity on China would well be in the millions and, given the global nature of this disaster, many like-minded countries may follow such a precedent on American soil. The result – dozens of countries potentially freezing Chinese financial assets and using them to pay redress to their citizens for pandemic-related losses – may be catastrophic, an existential threat to the Communist Party.
Investigations into how the Chinese coronavirus, first identified in the central Chinese city of Wuhan in late 2019, began infecting human beings have thus far yielded no concrete answers. The World Health Organization (W.H.O.) published a report in March stating that it considered the possibility of a viral leak at the WIV, known to be studying coronaviruses at the time, “highly unlikely,” but offered little evidence for any other theory. Most notably, the W.H.O. scientists drafting the 120-page report suggested that the virus originated in an “animal reservoir” that ultimately infected humans, but did not find a single animal carrying the virus in the greater Wuhan area despite testing 80,000 subjects of the likeliest species to carry coronaviruses.
The W.H.O. report rekindled speculation, long derided by leftists as conspiracy-theory mongering, that the virus first infected humans at the WIV – a separate question from the issue of whether the virus evolved to infect humans naturally or through research known as “gain of function,” where scientists intentionally make viruses more contagious.
This week, the Wall Street Journal claimed it had obtained a U.S. State Department document relaying intelligence that employees at the WIV sought hospitalization for respiratory illness in November 2019, about a month before rumors began circulating in Wuhan of the sudden spread of a yet-unidentified disease. The State Department under President Donald Trump had made that accusation public in a fact sheet published in January 2021, but the Wall Street Journal claimed the confidential document contained more evidence supporting the allegation.
The WIV published a study last week, apparently in response to the speculation, concluding that the likeliest animal carrier for the novel coronavirus was the pangolin, an anteater-like mammal prized in China for its alleged medicinal properties. The study addressed where the virus may have first evolved, but not where it first infected humans, failing to exonerate the laboratory.
Investigations into the WIV and renewed public interest in its activities are critical to seeking justice from the Chinese Communist Party because of the way American laws regarding sovereign immunity work. They should not distract, however, from the fact that Beijing committed acts of extreme negligence, at best, that turned a citywide disease outbreak into a pandemic. China is indisputably guilty of causing the Chinese coronavirus pandemic – directly responsible for at least 3.4 million deaths – regardless of the role, if any, that the WIV played.
Among the first steps Communist Party officials took in Wuhan were widespread arrests and censorship of individuals sharing information regarding a novel contagious disease. The most prominent victim of this repression was Wuhan doctor Li Wenliang, who had advised fellow doctors in a private WeChat group to wash their hands, use personal protective gear, and generally treat the unknown respiratory illness as contagious. Li disappeared into police custody, was forced to offer a humiliating apology for his private suggestions, and died mysteriously, allegedly of a coronavirus infection, in February 2020. He was 33 years old.
Another Wuhan doctor, Ai Fen, disappeared in February 2020 after repeatedly warning of a contagious disease spreading in the city. Ai did not resurface fully, other than in cryptic social media messages, until January 2021, when she revealed that a routine cataract surgery had left her partially blind, unable to walk alone, and unable to put on weight.
While silencing those sharing critical medical knowledge and attempting to treat patients, the local government of Wuhan attempted to break a record for the world’s largest banquet, inviting over 130,000 people, most of them elderly, to share thousands of plates of food – a prime opportunity for spreading any contagious disease. Wuhan allowed 5 million of its 11 million people to leave the city for the Lunar New Year holiday, spreading the coronavirus worldwide, while aggressively condemning any nation even considering imposing restrictions on Chinese travelers.
The Chinese government also convinced the World Health Organization to disseminate the falsehood that the Chinese coronavirus was not transmissible from person-to-person long after silencing Doctors Li, Ai, and other medical experts at home.
A study published in March 2020 by the American Enterprise Institute (AEI) found that the Chinese Communist Party could have prevented up to 95 percent of cases of coronavirus within its borders had it not taken steps to proactively spread disease. China’s government is indisputably guilty of causing the pandemic.
Overwhelming evidence of guilt, however, is not enough to override sovereign immunity. Popular will is also necessary, even in cases where the defendant is not the guilty state. For over half a century, Americans have been struggling to obtain justice for the at least $7 billion in assets stolen from them during the 1959 Cuban Revolution. Congress passed a law allowing for cause of action against American companies profiting from those thefts – not even the Castro regime itself – in 1996, but, just as Obama opposed the passing of JASTA, he and every president since its passing prior to President Donald Trump suspended the implementation of the Cuban Liberty and Democratic Solidarity Act. Americans received their day in court in 2019 but, with no popular mandate on their side, courts swiftly ruled in favor of corporations like Carnival Cruises, which trafficked in the use of stolen ports to make money on Cuba trips before Trump banned them, with little outrage.
No JASTA case has ever resulted in a ruling against Saudi Arabia, but 9/11 victims appear to be having more luck, as judges have refused to dismiss some cases. Even though JASTA more acutely involves sovereign immunity, which one would expect to require a higher burden to push a case forward, the obvious public demands for justice in the September 11 cases made all the difference compared to American apathy towards the atrocities of the Cuban communist regime.
Proof that China had reason to believe a highly contagious virus escaped the WIV and did nothing to stop it – on the contrary, helped spread it – may make the same difference.
Several members of Congress have expressed interest in passing a JASTA-type law to allow for lawsuits against China, most prominently Senators Marsha Blackburn (R-TN) and Josh Hawley (R-MO). By June 2020, at least 14 parties had attempted to sue the Chinese state in American courts, but most of those lawsuits, without the backing of more Congressional action, went nowhere.
The world requires a definitive answer to how this pandemic occurred to prevent future suffering. Proof of the WIV’s involvement may be necessary to enact justice for the suffering already endured.
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