Hayward: Chinese Media Threatens Lawsuits Against U.S. for AIDS Deaths

China's President Xi Jinping listens to Japans Prime Minister Shinzo Abe during a meeting at the Great Hall of the People in Beijing on December 23, 2019. (Photo by Noel CELIS / POOL / AFP) (Photo by NOEL CELIS/POOL/AFP via Getty Images)
NOEL CELIS/POOL/AFP via Getty Images

An especially unhinged editorial from China’s state-run Global Times on Thursday threatened to sue the United States, for supposedly creating AIDS in the 1980s, in retaliation for the state of Missouri filing a lawsuit against the Chinese Communist Party (CCP) for unleashing the Wuhan coronavirus.

The basic thrust of the editorial is that sovereign immunity dooms such lawsuits to failure (and the CCP might add that China has a history of simply ignoring international court decisions it dislikes while prattling endlessly about “globalism” and “multilateralism”).

Since the CCP is incapable of making any argument without veiled threats, the Global Times mused about counter-suing the U.S. for AIDS and destroying the entire international legal system if anyone tries to hold it accountable for the costs of the Wuhan virus:

As attempting to hold China accountable is absurd and the Chinese government is protected by sovereign immunity, such a lawsuit will never succeed. Even if some US or Western courts support the claim for compensation from China, they cannot force China to pay compensation as long as China refuses.

The Trump administration is attempting to create a new China hot spot by both overtly and covertly supporting such lawsuits, in order to shift the fury of Americans over their federal government’s inability to contain the spread of COVID-19.

It will be another story if the US federal government publicly supports such a lawsuit against China and uses its national strength to push it forward. 

The US federal government’s first step would be to cancel China’s sovereignty immunity as defined by the Foreign Sovereign Immunities Act (FSIA) of 1976. Such a move would have to be approved by the US Congress and signed by President Donald Trump. If the US really acts that way, it would open a Pandora’s box and result in the collapse of the world’s sovereignty immunity system. It would mean anyone could sue the US government in their own countries – an AIDS patient could sue it for compensation, for example.

No government will enforce such judgments. The execution of such a ruling could only be carried out by forcibly depriving the defendant countries of their overseas property, which would lead to tit-for-tat retaliation and drag the world into chaos.  

The last bit is more important than the wild talk about AIDS, since the CCP is eager to intimidate the world out of seizing any of its assets as reparations for the coronavirus.

The Global Times concluded with the CCP’s party-line whining about how international standards of law, transparency, and human rights are just a racket cooked up to keep Beijing and its client states under control, and only sinister oppressors would complain about how the CCP killed thousands of people around the world by keeping the coronavirus a secret for so long:

The US and other Western countries built a system that favors the Western camp in a hegemonic and bullying manner. These countries can’t accept that China has grown stronger, so they are pursuing a new round of bullying in order to block China’s development that is progressing faster than theirs. 

When it comes to the battle against COVID-19, China’s measures have turned out to be more effective and the country is contributing to the world’s virus prevention. If we regard the battle as a match, the US is losing the game. So it is trying to manipulate the referee in order to gain the upper hand. 

The US has in the past acted as a hooligan in the political and public opinion spheres, and the hooliganism has now expanded into the judicial realm. Hooligans are cheats who willingly break the rules when they can’t win. The US acts are a good example of this. 

The Missouri lawsuit, the actual merits of which the CCP is, of course, very reluctant to discuss, charges that Chinese officials “deceived the public, suppressed critical information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment, thus causing a global pandemic that unnecessary and preventable.”

Every one of those charges can be backed up with copious documentation, and most of them are undeniably true, as the links above will attest. The question is whether holding China accountable is legally possible. The Missouri lawsuit addresses that question:

On information and belief, the Communist Party is not an organ or political subdivision of the PRC, nor is it owned by the PRC or a political subdivision of the PRC, and thus it is not protected by sovereign immunity. See, e.g., Yaodi Hu v. Communist Party of China, 2012 WL 7160373, at *3 (W.D. Mich. Nov. 20, 2012) (holding that the Communist Party of China is not entitled to immunity under the Foreign Sovereign Immunities Act).

On information and belief, at all relevant times, the Communist Party exercised direction and control over the actions of all other Defendants. 

Of course, such legal assertions would be fiercely challenged in court. Forbes on Wednesday quoted legal analysts who doubted the effort to separate the CCP from the sovereign immunity enjoyed by the Chinese government at large would be successful, either in the Missouri lawsuit or similar suits filed by Florida and Nevada in March.

However the argument over legal jurisdiction might play out, there is no easy way to get around the fact that every entity of the CCP would ignore a verdict that went against it, forcing exactly the kind of ugly scramble to seize assets that the Global Times claimed the Communist regime is prepared to fight with the utmost ruthlessness.

The Hill on Wednesday reported that Missouri Attorney General Lynn Fitch has asked her state’s congressional delegation to support legislation introduced by Sen. Tom Cotton of Arkansas and Rep. Dan Crenshaw of Texas, both Republicans, that would amend the Foreign Sovereign Immunities Act (FISA) to introduce an exception allowing Americans to sue the Chinese regime for “damages caused by China’s dangerous handling of the Wuhan virus outbreak.”

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