Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.

American exceptionalism? Real or imagined? There are opposing views, but the one thing I imagine both sides can agree on is this: America is exceptional at litigation. So, what about suing the People's Republic of China (PRC) for the effects of COVID-19? The short answer: There are viable claims but they are a long shot.

Let's do some basic wiring, starting in 1976, when Congress enacted the Foreign Sovereign Immunities Act (FSIA). It is the sole means by which American courts can be used to sue a foreign nation. The law's presumption: A foreign nation is immune from a lawsuit unless it falls within an exception. For torts, by way of example, if an employee of the Canadian consulate in Dallas travels by car to Longview to bail out a Canadian citizen from jail and in the process speeds and negligently runs over a Texan, Canada can then be sued in an American court. But only torts entirely committed in the United States are actionable.

Other exemptions? Yes, there is no sovereign immunity for claims that arise out of a foreign nation's commercial activities. The exemption applies regardless of a nation's borders. So, Argentina goes to war with the United Kingdom (actually happened in the 1980s) and enters into a contract in Argentina with an American bullet maker. Argentina stiffs the bullet maker when it gets the invoice. Because this is just a meat and potatoes commercial transaction, then Argentina, like any other entity, is amenable to sue for breach of contract in an American court.

Fast forward to the events of 9/11. Lawsuits are filed against the nation of Saudi Arabia for aiding and abetting those who crashed into the Twin Towers. Saudi Arabia wraps itself in the mantle of the FSIA. In 2016, an upset Congress enacts, over President Barack Obama's veto, the Justice Against Sponsors of Terrorism Act (JASTA). Its bottom line: FSIA Immunity is lost if a sovereign nation supports, directly or indirectly, international terrorist activities against the United States. The JASTA definition, among others, of terrorism, is when a foreign nation intends or "appears" to intend to intimidate or coerce a civilian population or to influence the policy of a government, JASTA eliminates for these purposes the requirement that the tort occurs entirely in the United States.

And the third leg to this litigation stool is jus cogens. Essentially, this is international law lingo that translates to a concept that there are norms that every civilized nation must give adherence. The idea is developed in Judge Wald's dissent in Princz v. Federal Republic of Germany, a 1995 decision from the Court of Appeals for the District of Columbia. The plaintiff survived imprisonment in several concentration camps. He sued the Federal Republic of Germany for a variety of tort claims. The majority affirmed summary judgment for Germany which had invoked the FSIA. But Judge Wald dissented, arguing that the atrocities were so blatant and heinous that Germany must have understood that someday, somehow, someone would hold it accountable for them. Thus, Judge Wald reasoned that Germany implicitly waived the protections of any type of immunity.

Shake these litigation elements vigorously and what gets poured out?

First, try a cha-cha around immunity by arguing, as does the state of Missouri, that the suit is not against a foreign nation but rather a separate entity. That's the tactic followed by Missouri who sued not just the PRC but also the Communist Party of China and various other entities. The State of Missouri v. The People's Republic of China Et al (E.D Mo. April 22, 2020).

Second, argue, drawing on Judge Wald's dissent, that the alleged acts and omissions of China fail to conform to basic notions of humanity and thus the PRC implicitly waived the protections of the FSIA by its conduct. The allegations, which for pleading purposes would be drawn from media reports, should allege that the PRC intentionally developed a virus for use against other nations or that the virus was negligently released and the PRC mounted a cover up of how the virus was released or of its origin causing incalculable harm. That appears to be the approach taken in Alters et al v. PRC Et al (S.D. Fla. S.D. Fla. March 13, 2020).

Third, employ JASTA as does the plaintiff in a Dallas case, Buzz Photos et al. v. PRC et al, March 17, 2020 Case No 3:20-CV00656-K. The detailed complaint sets out the various treaties and international conventions that the PRC has allegedly violated including banning biological agents for aggressive purposes. The complaint takes pains to allege more than mere negligence but rather to allege acts and omissions "repugnant to the conscience of humanity." The complaint tracks the definition of terrorism quoted in part above. (By the way, for you legal eagles, the FSIA presumes both personal and subject matter jurisdiction.) But, note that JASTA does not change the FSIA provision that a foreign nation's assets in the United States are immune from seizure to satisfy a judgment obtained under the FSIA.

Fourth, try and fit the claim into the commercial activity exemption. The State of Missouri pled such a claim based on the alleged hoarding by the PRC of personal protective equipment which led to unlawfully inflated prices.

Will constructing a lawsuit against the PRC be challenging?  Should a potential litigant consider bringing one?  What are the strategic considerations to reflect upon? Know your opponent, first and foremost. A passage from "The Art of War" by Sun Tzu may apply here: One who takes position first in the battleground and awaits the enemy is at ease; One who takes position later in the battleground and labors to do battle is at labor.

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His email is [email protected].