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State Immunity in the Context of the Justice Against Sponsors of Terrorism Act.

State Immunity:

Analysis of State Immunity in the Context of the Justice Against Sponsors of Terrorism Act, State Sponsored Terrorism, and Cyberwarfare

Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School have both been vocal objectors to Justice against Sponsors of Terrorism Act. Mainly, that the passage of Justice against Sponsors of Terrorism Act would sour and deprecate the already tenuously fragile yet vital U.S.-Saudi relations and secondly that the law could set a precedent that could be used against U.S. for its diplomatic, intelligence, and counter-intelligence efforts. And may invoke reciprocated suits on US and its officers in Saudi Arabia. Lastly, Vladeck, Goldsmith and other critics have pointed out the families’ case against the Kingdom of Saudi Arabia under JASTA is factually tenuous and therefore begs the question of what is the cost of giving 9/11 victim’s families a day (or possibly years) in court worth the consequences.[1] President Obama’s veto letter to Congress shared many of the same concerns and sympathies.[2] The provisions of stay which provides for that a stay can be granted on the basis of submission of secretary and concurrence of DOJ in court can be particularly tenuous and make the term of litigation uncertain for the victims’ families.

This essay does not aim to analyze or predict the outcome of any case against the Saudi Government in a U.S. district court under JASTA for the 9/11 terrorist attacks.[3] However, it does aim to distinguish diplomatic, intelligence, and counter intelligence efforts from state sponsored terrorism. Moreover, it advocates for JASTA as a logical conclusion of US legislative efforts to protect US civilians against heinous acts of chaos and violence and as a deterrent to states and individuals that might otherwise sponsor such acts of terrorism in any of its forms in the future. Finally, this essay argues that laws like JASTA protect civilians from terrorists and governments alike.

Sovereign immunity is an historic principle of international law, a tenet of Jus Cogens.[4] For centuries, sovereigns enjoyed absolute immunity in foreign courts in practically all matters.[5] Under its logic a sovereign could not be held liable before the courts of another sovereign for its official acts.[6] The principle’s better known axiom ‘the king can do no wrong’ illustrates the stark, hostile, monarchist, and matter of fact history of violence between sovereigns that generated the jurisprudence of sovereign immunity.[7] But the jurisprudence has been divided on the question of state immunity into absolute theory and restrictive theory, base on the nature of action in question in court, the US follows the restrictive theory of sovereign immunity and any actions of foreign states where it is not acting as sovereign and merely acting on commercial basis is not immune from the jurisdiction of courts united states.[8]

In the mid twentieth-century nations states limited that immunity by codifying mutually enforceable justifications for war (jus ad bellum) and the conduct of warfare (jus in bello), and the protection of civilians.[9] Moreover, government commingling with commercial, investment, private enterprise, and nationalized entities brought about the need to withhold a nation state’s immunity in the context of its commercial acts (jure gestionis) and simultaneously uphold the immunity for nation states sovereign actions in compliance with the jus cogens.[10] This has resulted in the adoption of a restrictive theory of sovereign immunity, under which immunity is generally limited to a foreign state’s public acts or those deemed jure imperii but withheld from its private or commercial acts jure gestionis.[11]

The United States formally adopted the “restrictive theory” of sovereign immunity in 1952. Under the Foreign Sovereign Immunities Act(FSIA), a foreign country’s immunity is limited to claims involving its public acts. However, the Act’s immunity does not extend to claims arising from the private or commercial acts of a foreign state.[12] In 1976, Congress codified the restrictive theory in the FSIA and selected the “nature of the act” test for determining whether a particular act constitutes “commercial activity.”[13] It is not very clear that which nature of acts are sovereign actions and which are commercial in nature as it is the obligation of the state conduct businesses on behalf of the state and even while conducting commercial acts, the state does act in sovereign capacity, the International Court Of Justice have made these distinctions in many cases, but no strict yardstick rule has been laid down and each case needs to be looked into with its own perspective and decided on the basis of established principles of International Laws. It has been theorized by many eminent jurists that the international law is not binding laws but the laws like JASTA would bridge the gap of enforceability between domestic and international laws.

In 1996 Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and thereby amended the FSIA to allow legal proceedings for monetary damages against foreign states or individuals that cause personal injury or death ‘by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources…. for such an act,’ if the victim was a US national at the time of the act and the foreign state is designated by the US Secretary of State as a sponsor of terrorism.[14] Congress passed these laws in an effort to protect US citizens from an increasing and captivating threat presented by non-state actors. The fact that AEDPA specifically mentions ‘hostage taking’ and ‘aircraft sabotage’ speaks to the types of threats Congress sought to deter. That method of deterrence is in effect a civil legal threat to those that could sponsor acts of terrorism or as Prof. Wuerth phrased it as “a financial incentive [for victims] to try to link any such attack to the reckless or intentional actions of a foreign state, even when those actions occur in other countries.”[15] However, it is not customary international law applying sovereign immunity to actions arising from terrorist attacks and principle of international comity and humanitarian values take precedence.

However, the once broad immunity was further restricted this past September when the U.S. Congress excluded the immunity for states that sponsor terrorist acts resulting in U.S. citizen casualties on U. S. soil by passing the Justice Against Sponsors of Terrorism Act (JASTA).[16] The bill received unwavering support from both the families of 9/11 victims, their lobby, and congressional constituents across the country. President Obama vetoed the bill stating while he was sympathetic to the families of 9/11 victims, “JASTA would be detrimental to U.S. national interests more broadly.”[17] Indeed Saudi Arabia spent millions of dollars lobbying to keep JASTA off the President’s desk.[18] This is the first time in the successive tenures of President Barrackk Obama that his veto was overridden. However, overwhelming congressional support for the families of 9/11 victims would ensure the bills passage into law despite President Obama’s veto.[19]

JASTA is the logical extension of Congress’s intent to protect US Citizens by deterring foregoing governments and the officials that comprise them from sponsoring violent actions against US civilians. JASTA can be said to be the voice of collective conscience of the people which has been shaken by the terrorist attacks on a frequent basis and increase in its scales of disaster.

The limiting of sovereign immunity is largely representative of the ever present vulnerable position, the citizens have between sovereigns. International law has stridden towards limiting preventable harm to civilians in warfare between sovereigns. US domestic law reflects congress intent to protect the civilians from terrorist attacks and offer a mode of reprisal against nations that might sponsor them in the first place. This isvaluable as citizens in global cyber economy are more vulnerable than ever to non sovereign actions, sovereigns cannot and should not invoke sovereign immunity for sponsoring those actions and have to be held accountable for their actions.

Analysis of Justice against Sponsors of Terrorism Act

Justice against Sponsors of Terrorism Actcreates a privilege to the residents of United states and creates a cause of action against foreign states for injury occurring in the United States caused by an act of international terrorism in the United States and by a “tortious act or acts of the foreign state,” regardless of where the tortious act by the foreign state occurred. It creates the cause of action by first affirming that a foreign state has no immunity from such claims and then by providing that a national of the United States may bring a claim against a foreign state in accordance with law[20], if that state is not immune under Justice against Sponsors of Terrorism Act, notwithstanding 18 U.S.C. § 2337(2). This cause of action is created through an amendment to the Foreign Sovereign Immunities Act.[21]

Justice against Sponsors of Terrorism Act also creates a cause against persons who aid and abet an act of international terrorism by amending 18 U.S.C. § 2333.It further includes within its purview any foreign terrorist organization which is involved in committing planning and organizing under section 219 of the Immigration and Nationality Act.[22]

Victims of terrorist attacks in the United States can claim financial incentivesby linking any such attack to the terrorism, reckless or intentional actions of a foreign state, even when those actions occur in other countries. And commission of terrorist acts will be an actionable claim by citizens of US against the sovereign actors involved in its perpetration.

Section 2 of Justice against Sponsors of Terrorism Act, which creates a provision for foreign statesis narrow, at least as compared to earlier versions of the legislation, but it is applicable beyond the 9/11 terrorist attacks and the Saudi Arabia is exposed to a potential responsibility.

However, the immunity of foreign states from the execution of judgments is protected by different sections of the Foreign Sovereign Immunities Act (FSIA)[23], which are not amended by Justice against Sponsors of Terrorism Act. The FSIA provide some specific methods for enforcing judgments against state sponsors of terrorism[24], such as § 1610(a)(7) and (b)(2), but these measures will not be available under the new Justice against Sponsors of Terrorism Act section FSIA § 1605B. There are possible ways to executejudgments against assets of foreign states including their agencies and instrumentalities under FSIA, but are narrow in their framing, and their applicability is likely to be negated. Congress might provide new measures for enforcement for victims against Saudi Arabia, but there will be potential threats to foreign relations with Saudi Arabia, if the US congress takes those measures. And at the same time US is the largest holder of assets located in foreign countries which can be affected to attachement in case of any reciprocated actions by foreign states.

The US congress preempts the significant foreign relations harms may result from any efforts at enforcement, e.g., exposing the U.S. government and U.S. officials toreciprocated treatment and suits in other countries. The Supreme Court recently upheld the broad discovery under the FSIA in a post-judgment execution action against Argentina in 2014.[25].

Section 5 of Justice against Sponsors of Terrorism Act provides for an unprecedented provision for “Stay of Actions Pending State Negotiations.” Section 5 provides that courts may grant a 180-day stay on the proceedings, if the Secretary of State certifies that the U.S. is engaged and involved in negotiations in good faith to resolve the claims with the foreign state and if Department Of Justice chooses to intervene in the matter and submits the certification in the court. The court has an obligation and it is inevitable and must grant 180-day extension(s) upon re-certification by the State Department upon petition of the Department of Justice, which may open the possibilities of long term stay on the proceedings, resulting in unnecessary harassments of litigants. The statute provides for the courts’ discretion in grant of stay, but the courts cannot exercise discretion while granting an extension, this creates uncertainty in judicial proceedings.Further, the statute does not provide any guidingpremises while deciding a matter for grant of stay.

This is not the first time the principles of sovereign immunity is negated, the Courts had strived for similar results in cases related to holocaust by applying the principles of international comity doctrine, though the US Government ultimately resolved through executive agreements with Germany and other countries. One of the examples would be Ungaro-Benages case.[26]. Another case where the doctrine of International comity was used for similar effect in other factual contexts was the Pravin Bank Associates[27] case, in which the district initially was granted a stay but extension was refusedas it would have been inconsistent with U.S. Government policies. The statute creates a formal process for making submission of U.S. government’s position in the courts, the State Department is further provided with some internal executive checks to negate its ability to influence the litigation by a grant of stay. However, it is doubtful whether the courts have power to apply doctrine of common law and international comity, if the requirements of this section are not met.

Another doubtful omission in the Justice against Sponsors of Terrorism Act is that there is no provision dealing with the claim settlement power of the President by executive agreement, and there is no specific provision on the contingency of such executive agreement entered into by any competent body that whether the litigation terminates or subsists in the contingency of such agreement.However, the Supreme Court has upheld claim settlement agreements by executive means in many cases, the agreements in the cases were not implemented by legislation and the agreements were held to be the binding law.

The passing of Justice against Sponsors of Terrorism Act will significantly raise the numbers litigation in courts. And a primary matter of concern would be that the U.S. foreign policy is made to be driven and controlled by several entities, congress, courts, executive and private litigants.

State Immunity and Justice Against Sponsors of Terrorism Act

The state immunity is an established principle of international law, protecting the Heads of States of sovereign states and sovereign actions of the states pursued through competent authorities. The principle of state immunity is based on the maxim “king can do no wrong”, therefore the sovereign actions and heads of states are immunized from the jurisdictions of foreign courts, and are not liable for any civil, criminal or tortious acts.

However, with the development of international law and the principle international comity, the state immunity has been negated to some extent.

And with the passing of Justice Against State Sponsored Terrorism Act, the United States have taken a giant leap forward in abolishing the immunities of state if the state and its organs are involved in an act of terrorism, and giving overriding effect to the principle of international comity.

Sovereign immunity, while being forum dependent, has been recognized as an obligation under customary international law for long time.[28]. The International Law Commission first took the task to identify and codify state practice on sovereign immunity in 1978.[29]. After nearly three decades of work UN adopted the UN Convention on Jurisdictional Immunities of States and their Property in 2004[30]. The Convention, though not yet in force, but adopts a restrictive theory of immunity. The restrictive theory is adhered to by most countries, except for a few countries such as Russia or China. While the schism between absolute and restrictive immunity is accepted in the literature, there are quite a few questions left on how much immunity can be restricted.[31]

Even after the developments in international law, there are instances when state immunity shall have overriding effect, it is evident from many decided cases of International Court of Justice that the customary international law requires states to recognize foreign sovereign immunity in some contingencies. For example in the Jurisdictional Immunities Case (Germany v. Italy[32]), the International Court of Justice (ICJ) held that international law requires immunity with respect to torts committed by armed forces during an armed conflict.[33].Customary international law rules of immunity—like customary international law rules more generally—must be based on a general and consistent practice of states followed out of a sense of legal obligation or opiniojuris[34].

The United States follows a restrictive theory of foreign sovereign immunity. The restrictive theory of foreign sovereign immunity means that the immunity of foreign states does not extend to the private and commercial acts (acta jure gestionis) but generally does extend to their governmental acts (acta jure imperii). The Foreign States Immunity Act, provides for a number of exceptions to immunity that may apply to the governmental acts of foreign states, and the foreign state can be held liable for those actions, including the expropriation exception (Section 1605(a)(3)) and the territorial tort exception (Section 1605(a)(5)).

The ICJ had been careful while distinguishing immunity and does notdecide immunity by the line of governmental and non-governmental acts. In Jurisdictional Immunities[35],, it was noted in paragraph 64 that “none of the national legislation which provides for a ‘territorial tort exception’ to immunity expressly distinguishes between acta jure gestionis and acta jure imperii.” And at paragraph 65, the ICJ limited its holding in that case to armed forces during armed conflict, leaving open the question whether other governmental acts might not be covered by