An assault on state immunity
On 28 September 2016, ignoring the veto of the then US President Barack Obama , both houses of the US Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA). It confers US federal courts jurisdiction over civil claims against a foreign state for any death, physical injury, or damage to property occurring in the USA resulting from an act of international terrorism, and also for torts committed anywhere by an official, agent, or employee of a foreign country who acted within the course of their employment. It is bewildering that the passion and desire to respond to the demands of their constituencies could sway US lawmakers to forget international legal norms and JASTA's foreign policy imperatives. Compared to most other countries, the immunity of foreign states in the USA was already quite thin (even before JASTA, US nationals could sue foreign states for sponsoring terrorism provided that the US Department of State designated such a state as a sponsor of terrorism). Now, on matters pertaining to terrorism, JASTA would make the international legal doctrine of state immunity next to non-existent.
The doctrine of state immunity, i.e. the immunity of foreign sovereign authorities from the jurisdiction of the courts in another country is based on some compelling moral and practical considerations. The moral justification for granting immunity to foreign countries from the jurisdiction of local courts is grounded in the doctrine of sovereign equality of states. It is practically sensible because it allows one country's activities relating to functions of the state not to be assessed in the domestic courts of another which could needlessly heat up the political milieu.
Logistically and politically JASTA may be problematic to implement. From the perspective of a judicial proceeding, it may be tough to collect evidence, subpoena documents held by a foreign state, depose officials of foreign countries (in foreign jurisdictions), and force the appearance of witnesses. Thus, it may cause a diplomatic quandary and lead to public outrage in the alleged terror-sponsoring country. A prototype of JASTA being enacted by too many other countries may be a far-fetched supposition because for such a law to have a real bite, the country must have a significant international clout and the alleged terrorism-sponsoring country must also have assets or commercial interests in that country. Countries having both these elements may be relatively few in number. Having said that, JASTA would be likely perceived quite negatively by the international community (not just states affected by this law), as the undue localisation of a global concern by the United States. Such a perception may wane the case for a concerted global effort to fight terrorism.
Some wide-ranging US laws such as the extra-territorial application of alien tort claims have for many years raised eyebrows in other countries. However, those laws mostly target corporate or private actors and not necessarily foreign countries (unless they are acting in a commercial capacity) and hence, JASTA can be more objectionable. When a corporate actor or individual does business in the US or has a nexus to the US, they are required to accept the jurisdiction of the US courts. However, it seems illogical that the same rationale should be applied to a foreign country. Moreover, a country that has been sued for sponsoring terrorism may implead other countries in the trial, thus denying state immunity to that country as well. With JASTA, the United States is truly poking the tiger with a very short stick because now all that is required to deny state immunity to a foreign country is a mere allegation by a plaintiff of an act of terrorism (which could very well be a controversial political act), and payment of the requisite court fees. The victims of 9/11 terror attack or any other acts of terrorism are fully within their rights to seek justice through legal means. But ways to achieve that end should be through the international legal regime, however challenging that may be.
A careful reading of JASTA would clearly convey that the prime objective of JASTA is not to punish the perpetrators of acts of terror per se, but it is rather to seek punitive damages from the states that aided or abetted the terrorists either explicitly by sponsoring them or implicitly through lax preventive measures. If this is the objective of JASTA, then the International Court of Justice (ICJ) may be the proper forum for such a legal proceeding, thereby not only preserving state immunity but removing any concern of bias. Considering the fact that the ICJ only allows for inter-state disputes, some may argue that laws like JASTA empower the citizens; the actual victims of the acts of terrorism, to seek justice on their own disregarding any political expediency. This is a fair argument, in that case, a system along the lines of a Mixed Claims Commission may be a viable option, thus consequently not compromising on state immunity and allowing citizens to sue ideally without any interference from the state. Then, considering the present situation between US and Saudi Arabia, whatever political and/or economic imperatives that may persuade one to believe that Saudi Arabia will abide by judgements of the US federal courts, should also be applicable when arguing as to why Saudi Arabia might agree to establish a Mixed Claims Commission or accept the jurisdiction of the ICJ, in addition to the consequent preservation of its sovereign immunity. Hence, there may be no need to dismantle state immunity; one of the foundational principles of international law, and yet achieve the objective that JASTA seeks to achieve.
The writers are respectively Associate Professor and Lecturer at School of Law, BRAC University.