Friend of Letters Blogatory Bill Dodge has reported on a really interesting lawsuit filed in a Chinese court by Wuhan city government, the Chinese Academy of Sciences, and the Wuhan Institute of Virology, accusing the State of Missouri and two former Missouri attorneys general of defamation. The claim is that the defendants lied about supposed Chinese hoarding of PPE during the pandemic and a supposed Chinese coverup about COVID. The plaintiffs seek billions of dollars in damage. The Chinese lawsuit is an obvious rejoinder to Missouri v. People’s Republic of China, my “unmeritorious case of the day” from April 27, 2020, accusing China of responsibility for COVID at the very outset of the pandemic. Here is what I wrote at the time:
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.
The Missouri case should in my view have been dismissed on foreign sovereign immunity grounds. Initially the district court did dismiss it, but in 2024 the Eighth Circuit reversed in part, holding, wrongly in my view, that the claim that China had horded PPE during the pandemic was within the commercial activity exception to immunity.1I wrote about other aspects of the decision here. The case ended with a multi-billion dollar default judgment.
In the new Chinese lawsuit, the plaintiffs claim that foreign sovereign immunity does not bar their suit because under Chinese law, “A foreign state does not enjoy immunity from the jurisdiction of PRC courts in litigation for compensation arising from personal injury or death or damage to movable or immovable property caused by the relevant act of the foreign state in PRC territory.”2Interestingly, Bill tells us that Chinese law also gives foreign government officials sovereign immunity for their governmental acts. Bill observes that there is another exception in Chinese law, which American law lacks and that would support jurisdiction: “Where foreign states accord the PRC and its property narrower immunity than is provided by this Law, the PRC will apply the principle of reciprocity.”
Bill quotes Chimène Keitner, who has described the situation as “unhelpful political theater … with no clear off-ramp for either side to save face.” In one sense, of course she’s right. But I can’t help thinking there is a pretty important lesson in this new development. The Republican Party of Donald Trump and Stephen Miller has a ridiculous view of American power and of the international order. It thinks we have the political, military, and economic power to do whatever we want without worrying about how others will react. I’m leaving aside the question of whether the things we want to do are sensible things, even through the lens of self-interest. Annex Greenland? No problem. What about NATO? We don’t need allies. What about adverse international reaction? We’ll tariff the bejezus out of anyone who objects. But as the Chinese lawsuit shows, there are other powers in the world, with other agendas that we ignore at our peril. Assert jurisdiction over the Chinese government for supposedly hording PPE? Great, but let’s not think too hard about how the Chinese government might reply in its own courts. Who elected these people? (That’s rhetorical. We, the American people, elected these people, and we are collectively responsible for the consequences).
Now compare that attitude with the attitude of another Republican administration, in fact the first Republican administration. I’m thinking of the Peterhoff Incident. I would like to tell you that I learned of the incident in a course on international law3The incident led to a Supreme Court decision, The Peterhoff, 72 U.S. 28 (1866). or even from the awesome Civil War seminar I once got to take with Prof. James McPherson, but in fact I learned of it from William Safire’s not-bad, very long novel, Freedom. For some reason, it is the one of two things that stuck with me from reading the novel as a teenager. The other was the courtroom scene when a deputy marshal had to tell Justice Taney that the government was flouting a writ of habeas corpus at the outset of the war. I suppose I was doomed to go to law school.
Anyway, the Peterhoff Incident. The USS Vanderbilt captured a Royal Mail ship, the Peterhoff, in the West Indies on its way, it claimed, to Mexico. Although the ship was a neutral ship that claimed to be heading to Matamoros, a neutral port, the Navy thought it might be trying to run the blockade of Confederate ports, because Matamoros was just across the Rio Grande from Brownville. Lincoln’s cabinet debated whether or not to open the mail that the ship was carrying to see where it was really headed. Welles, the Secretary of the Navy, pushed to open the mail, arguing that under the law of prizes, the mail could be opened to determine the ship’s intent, and it would then be up to the courts to decide the consequences. But Seward, the Secretary of State, wanted to send the mail along unopened, fearing conflict with Britain. If Britain came into the war on the side of the Confederates, things might have gone differently. One other point, although I don’t think it was emphasized in the novel, was that at the time there was a lot of anti-British sentiment in the North, and I am guessing that seizing the mails might have been popular, or might, as we would say today, been “red meat for the base.”
It was up to Lincoln to make the decision, and in the middle of the greatest crisis in American history, he decided to uphold the sanctity of the mails, of all things. This wasn’t just principle, it was also good diplomacy: Lincoln needed at all costs to avoid war with Britain. Lincoln was saying, in effect, “even if we can open the mails, even if we can legally open the mails, is it the right or smart thing to do?”
What I’m saying is, I wish the attorney general of Missouri, even during the crisis days of COVID, could have been more like Abraham Lincoln. I wish he could have said, “I can sue the Chinese government and its instrumentalities in court, I think I can legally sue them (i.e., I don’t think they are immune from suit).4And at least according to the Eight Circuit, he could. But is it the right or smart thing to do?” Perhaps more pushback from other states will help encourage the more responsible elements in the Republican Party to show some backbone when it comes to international comity.
- 1I wrote about other aspects of the decision here.
- 2Interestingly, Bill tells us that Chinese law also gives foreign government officials sovereign immunity for their governmental acts.
- 3The incident led to a Supreme Court decision, The Peterhoff, 72 U.S. 28 (1866).
- 4And at least according to the Eight Circuit, he could.
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