Unmeritorious Case Of The Day: Missouri v. China
Posted on April 27, 2020
I’m keeping an eye on Missouri v. People’s Republic of China, a case just filed in the Eastern District of Missouri. The claim is against the Chinese government and several ministries and local governments, as well as the Communist Party of China and two institutes whose status is unclear, the Wuhan Institute of Virology and the Chinese Academy of Sciences. For the moment I am going to assume that all of the defendants are either foreign states, political subdivisions of a foreign state, or agencies or instrumentalities of a foreign state, though I’ll discuss the CCP below. The claim is, more or less, that China is responsible for the global pandemic and the harm it has caused in the United States.
Let me make a few political points before turning to the merits and demerits of the complaint. First, there is no doubt that the Chinese governments bear much responsibility for how the pandemic has unfolded. But our own government—mostly the federal government—bear a lot of responsibility for how things have turned out in the United States. Flashy lawsuits like this seem to me like a cheap trick meant to give people an easy target for their anger, when in fact we should be directing much of our anger at our own feckless political leaders. Second, we need to remember that one of the ideas at the heart of foreign sovereign immunity is reciprocity. Part of the reason it’s really important that the United States ensures that our domestic law of immunity continues to mirror (mostly) the customary international law of foreign sovereign immunity is that we can expect whatever we do to other countries in our courts one day to be done to us. I am not going to use this post to give my lament for American world leadership and American exceptionalism, but I do think that we will need one day soon to come to terms with the way in which we have squandered much of our power (I say “we” because we are all collectively responsible for our government, though if I were feeling partisan I could assign the bulk of the blame rather specifically) and the consequences, which likely will include having to reach accommodations we don’t want to reach because we’re no longer strong enough to do as we please on the world stage.
With that probably ridiculous sermon out of the way, what are the prospects for the complaint to succeed? Quite low, you will not be surprised to hear. The complaint cites the commercial activity and non-commercial tort exceptions to foreign sovereign immunity. Characterizing China’s operation of its healthcare system or its conduct of virus research as “commercial” seems pretty far-fetched, and in any case, it’s not clear that Missouri could satisfy the “direct effect” requirement of the statute even if it could construe China’s activities as commercial. And it is difficult to see how the non-commercial tort exception could apply, given the exception for discretionary activities and the requirement that the tort take place in the United States.
Now, let’s imagine that the CCP, for example, is not a foreign sovereign or the agency or instrumentality of the Chinese state. Then none of what I’ve said before will matter. But how will the plaintiff go about serving process? The Chinese government would almost certainly refuse to execute a request for service under the Service Convention under Article 13. China objects to service by alternate means under Article 10. Could Missouri serve process by email? If you’re a regular reader you know what I think about that. So I think there may well be serious barriers even leaving the FSIA aside.
Maybe the biggest barrier to Missouri is time. It is going to take a significant amount of time to serve process and get the case going, and it seems to me that the hearing on a motion to dismiss likely won’t take place in time to be politically useful to those who have a political interest in redirecting blame before the November general election.
Update: Apparently Missouri takes the position that all of the defendants are within the scope of the FSIA, which is a little surprising to me.