DAVID GREENE, HOST:
The state of Missouri is doing something unprecedented. It is suing China over COVID-19. The suit claims that China concealed the coronavirus, which led to deaths and economic losses in Missouri. We should say the state of Mississippi appears to be getting ready to file a similar lawsuit. But states typically don't sue foreign countries. Frank Morris from member station KCUR joins me to talk about the possible motivation behind this longshot litigation.
Hi, there Frank.
FRANK MORRIS, BYLINE: Hi, David.
GREENE: All right. So you have Eric Schmitt, the Republican attorney general of Missouri filing this lawsuit. I guess start by walking us through what they're alleging China did here.
MORRIS: Well, Eric Schmitt is laying the entire blame for the pandemic - every bit of the death, the financial pains caused in Missouri - squarely on China. He says that at the onset of the virus, December and January, China destroyed medical research. It arrested whistleblowers, and it allowed thousands of people to leave Wuhan after it was clear that a highly infectious disease had broken out there.
ERIC SCHMITT: Chinese authorities engaged in a campaign of deceit, inaction by these authorities that directly led to this vicious virus spreading around the globe. And Missouri has not been immune to that.
GREENE: All right. So he sounds like a lawyer who sounds angry and is laying out a case. But, I mean, what's the law here? Can a state like Missouri just go sue China?
MORRIS: Well, not normally. Tom Ginsburg, a law professor at the University of Chicago, says the case raises a huge jurisdictional issue.
TOM GINSBURG: Sovereign immunity - that's the word that we use for the principle that states can't be sued in each other's courts. Governments cannot be sued in courts of other governments.
MORRIS: Now, the relevant statute here is the Foreign Sovereign Immunities Act. It does have exceptions. So Schmitt isn't just suing Chinese. He's also suing three Chinese government agencies, a province, city of Wuhan, a lab, science agency and the Communist Party. And that's where some of the exceptions to the Foreign Sovereign Immunities Act come in. There's one for commercial activity. Schmitt says the labs were engaged in some kind of commerce. There was another exemption for non-state actors, like the Communist Party.
But even if the lawsuit clears the sovereign immunity hurdle, there are others. Missouri would have to prove that what happened in China at the onset of the pandemic directly caused pain and suffering in Missouri. And even if the case gets past all that and wins, there's no clear way from Missouri to extract money from, say, a lab in China or the Communist Party.
GREENE: Well, then what do we think might be the real motivation here?
MORRIS: Well, politics, critics say. It lets Schmitt, an elected official, do something about the pandemic. It also fits neatly with Republican efforts in the Senate to strip some of China's sovereign immunity protections and also keeps the focus on China and its culpability for the pandemic and keeps the attention off what critics would say were Trump administration missteps that worsened the outbreak here, like downplaying the virus, the sluggish rollout of testing and the spotty allocation of medical equipment.
Chimene Keitner at the University of California Hastings College of Law is a former State Department lawyer. She says that there will be a reckoning for China's role in the pandemic, but U.S. courts are not the place and now is not the time.
CHIMENE KEITNER: Are we going to engage in a blame game now while the pandemic is still raging or are we going to focus on our domestic responses and save the accounting for when people are back to work and not having to wake up every morning wondering if they are going to catch a potentially fatal disease?
MORRIS: As of the latest update here in Missouri, we're up to 6,137 COVID-19 cases and 208 deaths.
GREENE: All right. Frank Morris reporting there from member station KCUR. Frank, thank you so much.
MORRIS: Oh, you bet, David.
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