Enterprising US lawyers, from right-wing gadflies to the attorneys general of Mississippi and Missouri, have filed 15 pandemic lawsuits against the People’s Republic of China and the Wuhan Institute of Virology. Most begin by reasonably bemoaning China’s early denial that the virus may be transmitted asymptomatically, and from human to human. From there the lawsuits go off the rails. Some fancifully accuse Beijing of operating a bioweapons facility near a wet market.
All conclude that Beijing, having “caused” the pandemic, is liable for every last consequence. One action demands more than $20tn. Another states that damages will “exceed trillions of dollars... and only increase”. Read literally, this would imply quadrillions rising to quintillions.
Thinking big is often a virtue, but the US has an unfortunate tendency to judicialise its problems without solving them. Ambitious US lawyers would be better advised to channel their creativity into strengthening global health governance than pursuing an elusive jackpot court judgment.
The usual argument for sovereign immunity is that allowing another nation to be sued will come back to bite the plaintiffs’ home nation. That logic applies with special force in pandemic disputes. For viruses can start anywhere – and pandemics can be mismanaged anywhere. In mocking the “Wuhan flu”, outgoing secretary of state Mike Pompeo forgot that the “Spanish flu” likely began in his home state of Kansas.
In pushing legislation to poke a China-sized hole in sovereign immunity, populist senators Tom Cotton and Josh Hawley missed the irony in America demonising nations that “deliberately conceal or distort the existence or nature of Covid”.
However foolish the suits may be, they’re also doomed to failure. Chimène Keitner, who served as Counselor on International Law in the Obama State Department, finds it self-evident that they fail to fit any of the pleaded exceptions to sovereign immunity: for commercial activity, terrorism, or a tort committed on US territory.
In any event, notes David Fidler of the Council of Foreign Relations, any case for recovery would be gravely complicated by the Trump administration’s botched policy response. This is a situation where allocating blame is not only imprudent but impossible, both legally and morally.
The true post-pandemic challenge will be for the world to draw shared lessons for public health regulation. Amid the swirling winds of a potential new Cold War, that will be hard enough. The US re-joining the World Health Organization (WHO), as it did in January, was a necessary first step. Next the world deserves an honest accounting of every nation and locality’s failures – in China, the US, and elsewhere – whether of imagination, competence or political courage.
Finally, the WHO constitution must be revisited, and the International Health Regulations thoroughly amended. (See ‘The Global Lawyer: WHO’s afraid of a new pandemic?’, fDi, August/September 2020). Among the most promising ideas: to give WHO inspection powers and make WHO funding mandatory, to set a more flexible public health emergency standard, to require global sharing of virus samples, and to ensure rapid vaccine access in poor nations. And to ensure compliance, the WHO and IMF should broadly make pandemic best practices a condition for foreign assistance. The wisest public servants will understand that the morning after a pandemic is not the time to chase ambulances – but to silence their sirens’ wail.
Michael D Goldhaber has been tracking the world’s largest disputes since the turn of the millennium. Email: firstname.lastname@example.org
This article first appeared in the February/March print edition of fDi Intelligence. View a digital edition of the magazine here.