COVID Commission Lays Out Ways US Could Recoup Trillions In Pandemic Damages From China

The U.S. could regain trillions of dollars in legal damages from China for its “cover-up” of the COVID-19 pandemic, according to a report published Monday by the Heritage Foundation.

The report lays out a potential legal roadmap for suing China for its negligence, cover-up and lack of accountability and transparency about the origin and spread of COVID-19.

The Heritage Foundation’s proposed legal strategy navigates around the U.S. Foreign Sovereign Immunity Act (FSIA) — a 1976 law which dictates that foreign states are “immune from the jurisdiction of the courts of the United States and of the States,” barring some exceptions.

“China breached its duties by failing to exercise due care in conducting risky viral research, by negligently misrepresenting facts about the virus beginning in December 2019, by allowing individuals from areas within China known to have COVID-19 infections to travel abroad, and by transporting for profit—without adequate warnings—infected individuals to the United States… thereby causing COVID-19 to spread,” the Heritage Foundation’s Nonpartisan Commission on China and COVID-19 wrote.

The paper also mentions a variety of other legal pathways for holding China and the Wuhan Institute of Virology (WIV) accountable, including “Strict Liability for Abnormally Dangerous Activities.” In this case, the authors argue that China and WIV carried out “abnormally dangerous activity” by performing gain-of-function research and thus are “subject to liability for harm…resulting from the activity.”

The Heritage Foundation’s Nonpartisan Commission on China and COVID-19 also clarified some applicable exceptions to the FSIA that would allow the U.S. and its citizens to take these legal actions.

“First, under the ‘commercial activity exception,’ a foreign state is not immune [if] a commercial activity [is] carried on in the United States by the foreign state,” the commission said. “Second, there is no immunity for ‘personal injury or death, or damage to or loss of property, occurring in the United States.’”

Finally, the report advised the U.S. government on how to amend the FSIA so the policy no longer applies to catastrophes at the scale of the pandemic without adding additional regulatory hurdles for Chinese businesses operating in the U.S.

“The district courts of the United States shall have original and exclusive jurisdiction over any case… that caused or substantially aggravated any global pandemic in the United States regardless of where the action or omission occurred… [if] the biological agent underlying the global pandemic was the causative agent of more than 1,000,000 excess deaths in the United States directly or indirectly caused by the pandemic,” the commission wrote.

If these reforms are pursued, China’s liability could be in the trillions.

“[The] defendants’ activities were the direct cause of trillions of dollars in economic losses, untold numbers of infections and nonlethal harm, and more than a million American deaths,” according to the Heritage Foundation.