Recent weeks have witnessed growing international concerns over China’s role in the origins of the Coronavirus pandemic. While Australia and Germany ask for an international investigation of what went wrong, the United States has accused China of its failure to act promptly and transparently to limit COVID-19.
Also, several lawsuits – most of which are civil and two from the states of Missouri and Mississippi – have been lodged in US federal courts claiming reparations to China. The majority of these lawsuits are class actions by individuals and businesses seeking indemnities for death, injuries, and health and wealth loss.
Investigating the causes of the pandemic could certainly help explain what went wrong and help us learn from it. Still, to frame these lawsuits as claims for reparations would be counterproductive for US-China relations and hinder efforts to obtain lessons learned. At best, these lawsuits risk being perceived by Beijing as a diplomatic shaming campaign (note that China has already rebuffed by denying any wrongdoing). At worst, they can be seen as a geopolitical tactic to undermine China’s power by challenging its sovereign immunity.
Sovereign immunity is a principle that protects states against lawsuits by foreign entities without their consent. While historically reparations generally involved interstate negotiations about indemnities after a war, the lawsuits against China would constitute, if they were permitted to start, a form of compensation much more oriented towards revenge than about supporting victims. These lawsuits would also give US courts the power to decide whether China is responsible and the amount of indemnities it has to pay as reparations to victims of the Coronavirus. Chinese authorities are justified to fear a threat to their sovereign immunity. Unlike other known limits to the principle of sovereign immunity found in trade agreements or in human rights treaties, which involve cooperation between states and victims, the lawsuits against China take the form of unilateral and adversarial measures.
These lawsuits are very similar to US legislation to combat terrorism. The Justice Against Sponsors of Terrorist Act (JASTA) adopted in 2016 introduces the very possibility of civil lawsuits against a foreign state for terrorism-related exceptions. This Act also allows US courts to decide unilaterally the level of reparations an international state should pay. JASTA was initially vetoed by the Obama Administration but approved by the Trump Administration. JASTA works based on an adversarial legal model, which critics say is detrimental to bilateral or multilateral cooperation practices. The diplomatic outcomes of this law should be soon put to the test, with the ongoing collective lawsuit of families and victims of the 9/11 terror attacks against Saudi Arabia for its support for Al-Qaida.
The context in which claims for compensations against China are presented is also a problem. In the past two years, the United States has been reneging on its commitments to multilateral institutions by upholding its contribution to the United Nations, and more recently, the World Health Organization. Moreover, the US has been promoting exceptionalism in foreign policy in the last few years, as shown by its constant refusal to cooperate with the International Criminal Court, and its more recent threats to use retaliatory steps towards any staff at the ICC investigating alleged crimes committed by US military personnel in Afghanistan. In this context, agreeing to claims for compensation against China can easily give the impression that national courts are now a new American foreign policy tool.
This is not to say that claims for compensation should never be used. History shows that some successful claims have contributed positively to change the course of world politics, like the post World War II German reparations to Jewish victims of the Holocaust, or the 2013 British compensations to Mau Mau survivors of massacres committed during the 1950s uprisings in Kenya. Demands for reparations can constitute a powerful tool for naming and shaming and for forcing states to agree to some measures of redistributive justice. Such claims are appropriate in cases of human rights violations and social injustice. However, any potential claims for compensation targeting China do not have that kind of moral status.
The lawsuits against China currently face the jurisdictional hurdle of the US Foreign Sovereign Immunities Act, which prevents citizens from suing a foreign state, with some exceptions. Political pressures are now mounting on Congress to introduce bills that would authorize these lawsuits against China. Many voices raise concerns; however, about the risk, these lawsuits would backfire. Some politicians are now concerned America’s jurisdictional immunity can also be at risk in the eventuality China or other states decide to do the same. Recent events in the United States following the death of George Floyd, with the mobilization of Black Lives Matter for changes in American society, can give ground to these possibilities.
Claims for reparations have their place in politics, but their objectives, shapes and timing are crucial to determining their outcomes. In the current context, the 30 year demands formulated by the National Coalition of Black for Reparations in America (N’COBRA) for centuries of slavery and racial segregation of African Americans might have a better chance of leading to positive outcomes for the United States and the world, than lawsuits against China’s role in the COVID-19.