Editor’s Note: a guest post from conservative activist George Yang.
As the pandemic abates, the time to seek accountability has come. While many would rightfully want to go after the Chinese Central Government for, among other things, having either created or leaked this virus, they would face three major obstacles: the Chinese Government having swiftly destroyed any relevant evidence and silenced anyone with relevant information, the Biden Whitehouse dragging its feet in holding the Chinese Government accountable, AND the 1976 Foreign Sovereign Immunities Act (FSIA) which many talking heads would cite as the reason why citizens or American Government entities cannot file lawsuits against the Communist Government of China.
Instead of suing the Chinese Government, the City of Wuhan may present a more immediate and easier target.
First, it is easier to establish liability: There are two key facts that victims of COVID can amply prove, with documents from the City of Wuhan and with public speeches by the mayor of Wuhan at the time, in a court of law: a) The City of Wuhan knew about COVID as early as the middle of December but failed to report it as required by Chinese law. (more on why this is important later.) b) the City government of Wuhan knew that the virus could transmit from person to person yet lied and claim the contrary as late as Jan 20th, 2020. During this period, up to 3 million people had flied from Wuhan to cities around the world for the Chinese New Year Holiday. There is no need to conclusively prove Wuhan as the origin of COVID to make points a) and b) stick.
Second, the City of Wuhan, with 11 million people, has significant assets, potentially including holdings in Chinese companies listed in the United States, such as Alibaba.
Third, holding the city of Wuhan accountable IS helping the people of China, so they may have more law abiding local governments in the future.
Fourth, The City of Wuhan is NOT protected by FSIA immunity FOR THIS SPECIFIC CASE.
On casual reading, the FSIA seems to offer immunity to Countries as well as “Political subdivision of a foreign state” (28USC§1603a) such as the City of Wuhan. However, FSIA spells out clear exceptions to this immunity. 28USC§1605a(2)(5) FSIA lays out situations where a foreign entity would lose immunity if “money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or OMISSION of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” The law further clarifies that (5)(A) there would be no immunity if the foreign entity has a nondiscretionary duty to perform a function. Here is a nondiscretionary duty for you: the city of Wuhan is REQUIRED by Chinese law to report a contagious pathogen within 24 hours of their first discovery.
Where should such a case be heard? Such a case should be brought before a United States District Court. And there is precedent case similar to this. In 2009, 1800 Florida Homeowners sued a Chinese Company (Germano Vs. Taishan Gypsum Co) for bad drywalls. The company had no physical presence in the United states. That case is heard before a US District court and the homeowners won a judgement worth hundreds of millions of dollars. For a potential COVID liability case against Wuhan to go forward, all we need is one Federal District Court judge willing to take the case. (28USC§1602 “FSIA” Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.)
How can damages be recovered? 1) City of Wuhan, through it’s direct subsidiary, Wuhan Municipal State Owned Assets Supervision and Administration Commission, owns billions worth of assets, including property and stocks, some of which may be in the United States. The plaintiffs should immediately seek a court order to freeze such assets if any are in the United States, or other jurisdiction with independent judiciaries. 2) City of Wuhan is a wholly owned subsidiary, in more ways than one, of the Chinese Central Government. And the assets of the Chinese government in the United States could be used to pay potential damages. 3) There are other Countries who have been badly hurt by COVID, such as Brazil, Canada, India, Ukraine, Argentina, UK, even Russia. Working together, we can find a way to recover some damages from the government of Wuhan, and the Central Government of China, in a way that is proportional to the harm that they caused AND the liability that they shall bear, while not harming the people of China.
Based on the latest statistics, 10,000 Louisianans died from COVID and hundreds of thousands more lost their jobs, small businesses, and their way of life. We must seek accountability of the wrongdoers and justice for those harmed. Attorney General Landry, put your best prosecutors on the case!