Senate Judiciary Considers Holding China Accountable for US Covid-19 Losses

WASHINGTON (CN) — Senate Judiciary Committee members Tuesday discussed amending the Foreign Sovereign Immunities Act in order to hold China accountable for injury, losses and damages related to the outbreak of the novel coronavirus. 

“The bottom line is the wet markets in China have been a breeding ground for pandemics and Americans are asking the question, what will it take to make China change?” said Chairman Lindsey Graham, a South Carolina Republican. “At what point in time do we need to put on the table new ideas to stop a recurring event: pandemics coming from China.”

The Foreign Sovereign Immunities Act was first drafted in 1976 and deals with assessing liability to a country’s government and when that entity can be sued in a U.S. court.

Members heard from a panel of witnesses Tuesday, including Mississippi Attorney General Lynn Fitch, who said China was culpable for losses related to Covid-19 — a virus that has taken the lives of more than 121,000 Americans, according to a Johns Hopkins University tracker.

“The coronavirus has killed, caused serious medical harm, destroyed businesses and functionally altered the American way of life,” Fitch testified. “We must hold China accountable now so that they and all other nation-states will know that we will not allow them to act with impunity; that when they inflict damage on the American people, we will not turn a diplomatic blind eye but will use whatever tools we have at our disposal to seek justice.”

A class action suit filed in Florida and another filed in Nevada in March, seeking to recoup damages to businesses and individuals as a result of the global Covid-19 pandemic, named the People’s Republic of China as a defendant.

Another suit, filed in the U.S. District Court for the Southern District of Mississippi, looks to hold Chinese officials liable for violating the Mississippi Consumer Protection Act. According to Fitch, China’s actions “demonstrate that they created an environment ripe for the need,” for personal protective equipment, then distorted the demand and supply of that equipment, “to its own unjust enrichment.”

China’s failure to contain the virus could amount to transboundary harm, according to Washington and Lee University law professor Russell Miller.

“Another theory is concerned with the conduct of the Chinese government before the health crisis emerged,” Miller testified. “The essence of this allegation is that the Chinese government has moved slowly to establish an effective food and drug regulatory regime. Not surprisingly, China’s less effectively regulated food and drug market has produced one health crisis after the other.”

The committee’s ranking Democrat from California, Dianne Feinstein, said in an opening statement Tuesday there was a lot for U.S. officials to examine when determining the culpability of China, especially when it came to the question of concealing evidence about Covid-19. However, she said, the actions of President Donald Trump’s administration should also be examined.

“The actions of the Trump administration may even play a role in whether China can, or should, be held legally responsible for harms within the United States,” Feinstein said. “For example, how can China be held accountable for decisions made before the pandemic that made the United States more vulnerable? It was the Trump administration, not China, that cut funds for the Centers for Disease Control and Prevention and disbanded an office within the National Security Council that focused on responding to global public health threats.”

Chimene Keitner, a professor of international law at The University of California Hastings College of Law, testified that, “any scholar or practitioner with working knowledge of the law of foreign sovereign immunity,” would have seen the filings in Florida and Nevada and assess “that there is no basis for jurisdiction in a U.S. court,” for those suits.

Keitner also testified that modifying foreign immunity protections could call into question American culpability for virus outbreaks, noting the outbreak of the H1N1 flu in 2009 and its contested origin. While it is unlikely Chinese officials will face civil litigation, she testified, journalists, researchers and activists should continue to call into question actions by federal officials in the U.S. 

“There is an understandable human impulse to assign blame, but — especially in the United States — the contributory negligence evident in many aspects of the executive branch’s response makes focusing on China counter-productive at this point,” she testified.

The Senate Judiciary committee is likely to continue hearing testimony on this issue, as the Stop Covid Act of 2020, a bill which alters the parameters of Foreign Sovereign Immunities Act, is considered in the Senate.

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