The Problem with Suing China

It has often been noted that future competition between the West and Asia will largely focus on high technology, on 5G and on Artificial Intelligence. As of now, we are not doing very well, as everyone knows.

One reason, often noted, by yours truly and many others, is that Asian and especially Chinese universities are producing large numbers of engineers while we are producing social justice warriors and lawyers. 

Now, our benighted Congresspeople believe that we can invade China with armies of social justice warriors led by law professors. They have evidently not given the matter much thought. Their lawsuits will eventually amount to what has come to be called virtue signalling.

As it happens, I am blissfully ignorant of the law, so I will hand the reins over to a lawyer, one John Bellinger III, who exposes the folly of going against an industrial and technological behemoth armed only with lawsuits.

Bellinger opens thusly:

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.

Most of these suits will be dismissed, because our law does not allow us to sue sovereign governments in American courts:

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.

But then, we need to consider the possibility that China might retaliate. The principle of sovereign immunity is based on reciprocity. If we seize Chinese assets in this country whatever makes you think that China will not seize American assets in China. And besides, we have now all learned about supply chains. What will happen if China decided to slow down supply chains or make it more difficult to purchase medicines or defense technology?

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.

But, look at the bright side. These lawsuits will keep lawyers in business for years to come. In the end, when it comes to self-righteous virtue signalling lawyers, billable hours is where it’s at.