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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 immunity. Hence, even if acts of terrorism or providing material support for acts of terrorism were considered governmental; such a classification would not by itself entitle those acts to immunity under international law.

Generally, commercial activities of states have been the most significant exception to the rule.[36]. Besides that, exceptions to immunity for non-commercial torts have been limited to insurable personal risks occurring locally in the forum state (e.g. traffic accidents, slip and falls)[37].. However, there has been controversy over the extent of the application of this exception, especially in cases where the extent of damages is greater. In this regard, one of the most recent cases adjudicated by the ICJ in 2012 is Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Between 2004 and 2008, in many civil suits, Italian courts found Germany responsible for crimes against humanity during WW II, thus ordering Germany to pay compensation to the Italian victims. Germany brought the claim to the International Court of Justice, alleging it was not subject to the jurisdiction of Italian courts. The court declined the argument that there was a “territorial tort exception” in international customary law that excludes state acts from jurisdictional immunity if they breach jus cogens norms and held that the judgments ordering Germany to pay compensation violated international law.[38].

The new terrorism exception added by Justice against Sponsors of Terrorism Act is not limited to sponsors of terrorism by states, but is limited in other ways. The new Section 1605B provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) “an act of international terrorism in the United States;” and (2) a tortious act of a foreign state or its officials “regardless where the tortious act or acts of the foreign state occurred.” The tortious act of a foreign state may not, however, be an omission or “constitute mere negligence.”

FSIA provides exceptions for waiver, commercial activity and insurable personal risk described above[39].. Beside them, §1605A provides no state immunity for money damages sought for “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” However, this exception is limited. It applies only to states designated as a state sponsor of terrorism at the time of or as a result of the act in question.[40] Further, for acts occurring in the foreign state concerned, the state was to be given a “reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.”[41]

FSIA in lifting the immunity “for a certain category of sovereign acts that are repugnant to the United States and the international community”[42] the 1996 terrorism act exception does not comply with customary international law. In 2012, the International Court of Justice [ICJ] noted that this amendment has no counterpart in the legislation of other States. None of the States which has enacted legislation on the subject of State immunity has made provision for the limitation of immunity on the grounds of the gravity of the acts alleged.

Even if there is an emerging practice, it is neither general nor uniform. Indeed, apart from the US, Canada is the only State that has modified its law to include the same exception for terrorist acts. In October 2015, by way of an exequatur procedure, the Italian Court of Cassation in Flatow v. Iran[43] accepted the legality of this exception, provided the act of terrorism constitutes a crime against humanity; in other words, a breach of jus cogens is required. But in Kazemi v. Iran[44],, the Canadian Supreme Court clearly specified that the terrorism exception should not be confused with a general human rights exception to immunity for allegations of torture, genocide and other grave crimes of international law[45]..

Pursuant to Article 21.1 (c) of the UN Convention on Jurisdictional Immunities of States and Their Property, property of the central bank “shall not be considered as property specifically in use or intended for use by the State for other than government non-commercial purposes”. Similarly, §1611(b)(1) of the FSIA immunizes “the property […] of a foreign central bank or monetary authority held for its own account”. This refers to property used for what is normally understood as central banking functions, irrespective of its commercial nature.[46]

The US District Court ruled that §8772 supersedes the provisions on the immunity from execution of central banks. The Supreme Court agreed in this sense by stressing that:

The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. And exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty[47]..

In the case of Bank Markazi of Iran, according to the judge, the preamble of the Executive Order suggested that “Bank Markazi [was] not engaged in any of the activities protected by § 1611(b), and thus [was] not justly entitled to immunity”. .But, arguments submitted by the executive, based on the activities engaged in by Bank Markazi and other Iranian financial institutions, were found to be too broad to rebut the presumption that the funds at stake were not effectively used for central banking functions. When considering assets used for ‘mixed purposes’, immunity will stand as long as the sovereign purpose is not negligible. It was unlikely that all frozen assets were used for non-sovereign purposes. In these circumstances, it was arguable that the executive in the first place could freeze all the assets of Bank Markazi.[48]

Under international law, to set aside immunity from execution, without prejudice to the protection of diplomatic or consular properties, a State can only resort to a countermeasure as defined in the 2001 Draft articles on Responsibility of States for Internationally Wrongful Acts. Assuming that the US really was an injured State and could act in this way, its distribution of frozen assets would clearly infringe the law of countermeasures by preventing the reversibility of the measure.

It was not the intention of US Congress to set the example for the rest of the world, by framing the terrorism exception without deliberately taking into account international law; it was instead actually passed, tailored to respond to American foreign policy interests. While the FSIA aims at depoliticizing the determination of immunity, the implementation of the terrorism exception is doubtful and relies on the discretion of the executive and cooperation of states. One can take the example of Iraq, when Iraq was removed from the list of States sponsoring terrorism after the US invasion in 2003, national proceedings were suspended against Iraq at the instance of the executive. This type of interaction between the judiciary and the executive has led to several domestic disputes in the US and resulted in weakening of the exception’s effectiveness.

Further, there are many practical difficulties which are needed to be addressed in order to prevent a possible generalization of this exception. Firstly, there is no universal definition provided by the statute for terrorism. Secondly, the execution of judgments through lawful means on sovereign assets proved to be impossible, the US established victim compensation schemes. This makes the US taxpayer pay for the terrorists act rather than the states responsible for those acts. The Security Council of the United Nations in its resolution 1373 of 2001 calls on all States to work together through increased cooperation in accordance with the UN Charter, including the principle of sovereign equality, in order to combat this threat to international peace and security.[49]

Until 2012, the US terrorism exception, “because of the difficulties that beset its application, has been considered a failed judicial policy”.[50]Striving to give some meaning to the terrorism exception, the US has breached rules of immunity from execution. It is needed and left to be seen that whether Congress, which is currently considering the bill Justice Against Sponsors of Terrorism Act to expand the terrorism exception to other countries with regard to the 9/11 attacks, will entrench and aggravate the isolated and unlawful position of the US in this state immunity area, or the US returns to the path of international jus cogens is left to be seen in the future. However it is unlikely that the US is relegated to established historical jus cogensrather with the support of civilized world to the US, it is more likely that that the international law will be developed to adopt the restrictive theory of state immunity as envisaged by the JASTA in the United States.

Cyber Warfare and Justice against Sponsors of Terrorism Act.

The passing of Justice against Sponsors of Terrorism Act has negated the immunity of foreign state in tortious acts of terrorism committed, aided or abetted by them in the cyberspace.

It is necessary here to look into the definition of International Terrorism in the statute book:

[51](1) the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;

(2) the term “national of the United States” has the meaning given such term in section 101(a)(22) of the Immigration and Nationality Act;

(3) the term “person” means any individual or entity capable of holding a legal or beneficial interest in property;

(4) the term “act of war” means any act occurring in the course of—

(A) declared war;

(B) armed conflict, whether or not war has been declared, between two or more nations; or

(C) armed conflict between military forces of any origin; and

(5)the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States[52]

The strike or intention to strike the cyber infrastructure of the US by a foreign state also comes under the purview of international terrorism under one or more clauses of the section above.

We are living in highly digitalized society, where all the sensitive information is stored on the cyber space and we use the cyber space for variety of functions like interacting, networking, working, transferring data, transferring funds etc. and each function is vital in itself and any breach in the security of cyberspace is disastrous in itself, the attack on the security of cyberspace for the purposes of causing mass disturbance is known as cyber terrorism. These days cyber terrorism has emerged as one of the most disturbing methods of terrorism.

Criticism Of JASTA

The passing of JASTA would open the Pandora box of litigation in the US, and may invoke reciprocated actions by the countries covered under JASTA and US government and its officials may face litigation in large numbers in foreign states, and as United States is on the largest holders of properties in foreign states, it may suffer attachment of the properties in reciprocated actions.

The provisions of stay in JASTA of proceedings in court if the executive organ of US is under a negotiation with the litigant state will raise uncertainty on the term of litigation and the victims’ families stride for justice may become tenuous and harassing.

One of the possible criticism of JASTA would be that affected foreign states will negate or even prohibit the use of American currency in their transactions, which is among the leading currency of the world today, which might result in economic losses for US and a drip in the value of United States Dollar.

Further, As Saudi Arabia is one of the largest producers of crude oil; the prices of crude oil might go up, in response to the passing of JASTA by US Congress.

Consequences of actions Against Saudi Arabia

The consequences of actions and suits against Saudi Arabia are yet to be seen but it may prove to be detrimental to the diplomatic relations with Saudi Arabia and other countries affected by JASTA.[53] As if the Saudi Arabia is sued for terrorist acts and 9/11 attacks then the Saudi Arabia government will also be inclined to pass similar reciprocated laws against US in their jurisdiction and as the US holds significant properties in Saudi Arabia, the US may face consequences of attachment of its properties in their jurisdiction along with law suits against the US and its officers of the state. The diplomatic relations of US with Saudi Arabia may be more strenuous, which is already fragile in nature. Further consequential effects on the US intelligence and counter intelligence efforts and operation may be exposed. Further if Saudi Arabia negates the use of American dollars in its transaction then the US might suffer economic losses and as the Saudi Arabia is one of the largest producers of crude oil, and if it stops export US and serving facilities of US around the world then, the prices of crude oil might be raised, resulting in losses to US.

Precedent that could be used against US

The passing of JASTA may set a precedent that could be used against US as more countries will try to negate the established international law principle of sovereign immunity, which may prove to be double edged sword for US as it will ensure support for the law of JASTA in US but at the same time also expose US to significant foreign litigation and reciprocated actions, and the US maybe in the line of fire attracting significant number of litigation upon itself and its organs. But the US should not be deterred with these potential consequences and must take the responsibility upon it to create a just and equitable society for its citizens and citizens of the world.

There has to be some deterrence for the states who support terrorism, extremism and fundamentalism, and these states should not be allowed to walk away after committing terrorist attacks by taking state immunity as a shield, the US has taken these first step and other civilized countries and democracies might also follow US on the same path to protect their citizens against the possible and potential consequences of a terrorist act and hold the sponsoring state to answer the charges of terrorism against them, and further make them pay for their wrongdoings.


The united states have always followed the restrictive theory of sovereign and state immunity i.e., immunity is generally limited to a foreign state’s public acts and sovereign acts or those deemed jure imperii but withheld for its private or commercial acts jure gestionis.[54] Any commercial act of state is not immune from judicial acts under US jurisprudence.

The premise of restrictive theory is that if a citizen can sue its own state why a foreign nation cannot be sued at least for the wrongs in its commercial activities and sovereign activities under JASTA.

The Foreign Sovereign Immunities Act and Justice against Sponsors of Terrorist activities act is the natural reflection of the conscience of the people of US and the natural progression of law in accordance with the events of international affairs. Today, the world is not safe, because of rising intolerance and religious extremism, and there is a dire need for deterrence for these extremists and international criminals, who commit, aid or intend to commit terrorist or criminal acts in the US, hence a law became necessary to provide the rights to the citizens of United States to sue the perpetrators of terrorist acts, even if it results in breach of sovereign immunity.[55]

Further, nowadays, it has become very easy for a foreign state to hire and train its people to perpetrate terrorist acts in another state, and wreak havoc within the innocent citizenry; there are many easy ways by which terrorist activities can be conducted. A foreign state can source bombs to the hired people to be planted at busy public areas, bombs can be exploded in cars, railway stations, bus terminus etc. and it is a relatively easy way to create terror in the innocent members of the society, there are many instances of such terrorist attacks which can counted, the major ones are 9/11 world trade centre attacks in the US, bomb blasts in metros in London, terrorist attacks of 26/11 in Mumbai, India and there are many more. Yes, there are ways by which such attacks can be preempted and stopped from occurring, by creating and maintaining best intelligence and counter intelligence operations, but these intelligence have to remain error free and they have zero scope for error, and once the terrorist act is committed successfully the delinquent state gets away with sovereign immunity, therefore, laws like Foreign States Immunities Act and Justice against Sponsors of Terrorism Act are the need of the hour to create deterrent effects in the minds of delinquent states.

There are deficiencies in the current law like provisions of stays for uncertain periods in court if the matter is in negotiation in good faith between the executive of US and the foreign state indulging in terrorist acts. And the course of litigation in the event of executive agreement between US and the foreign State is not clear, that whether the litigation will terminate or subsist in such an event.

There are new and recent ways of warfare evolved with the evolution of technology, cyber terrorism is one of them. The internet and cyberspace contains sensitive information and any breach in its security can wreak havoc in nation, millions and billions of dollars are at stake, the terrorism sponsor states are increasingly employing the medium of cyber terrorism to meet the ends of their intentions of spreading terror. Attacks on the sensitive cyber infrastructure are not new, though a bit expensive but it has become a great medium of spreading terrorism, the Justice against Sponsors of Terrorism act covers the instances of cyber terrorism and the foreign states involved in such acts can be held liable.

Laws like FSIA and JASTA may have adverse effects on the intelligence and counter intelligence efforts and operations of US and may face adverse actions by the foreign states in its efforts but US as a responsible super power in the world is under the obligations to act responsibly and is needed to ensure the strength of its intelligence and counter intelligence efforts by dialogue and deal with the matter by best negotiations by diplomatic means. US have rose in its status through its anti terrorism efforts and strives and needed to ensure the same by keep working in the same line[56].As a responsible democracy and economic superpower, the US must strive and make efforts to implement its anti terrorism measure with precision and lead the world to become a peaceful and better place to live for the citizens of the world.

In the mid twentieth-century the international law related to sovereign immunity was codified and provided for enforceable justifications for war (jus ad bellum) which at some instances are immuned from the jurisdictions of foreign states and the conduct of warfare (jus in bello) to protect the innocent civilians in times of war and lay down rules to be followed by warring states while dealing with civilians.[57]The International Court of Justice have made classifications while dealing with the questions of state immunity while commercial intercourse (jure gestionis) and sovereign actions (jure imperii) upholding that the immunity for nation states sovereign actions in compliance with the jus cogens in the actions of jure imperii while denying the same in matters of jure gestionis. 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.[58]

There may be shortcomings in JASTA and FSIA while it is in the nascent stage of its operations and pragmatic applicability but law is the result of experiences of the jurisprudences of the unmemorable past, and the law keeps developing with the accumulation of new experiences, therefore to become a perfect law it has to keep gathering new experiences, few contingencies are left to appear uncertain like what will be the consequences of actions against Saudi Arabia and how actually the `execution of judgment take place, but law is dynamic and the state of the law will keep developing with the passing of the trial phase and litigation for the victims’ families will be smooth, hassle free and not unnecessarily tenuous.[59]

[1] [2] [3] [4]Weatherall, Thomas.JUS COGENS AND SOVEREIGN IMMUNITY: RECONCILING DIVERGENCE IN CONTEMPORARY JURISPRUDENCE. Georgetown Journal of International Law. [5]Law, Jonathan, and Elizabeth A. Martin. A Dictionary of Law. : Oxford University Press, [6] Id. [7] Id. [8] [9]Lauterpacht, Hersch. “The Problem of Jurisdictional Immunities of Foreign States.” British Year Book of International Law 28 (1951): 220–272. [10] [11]See Republic of Arg. v. Weltover, Inc., 60 U.S.L.W. 4510, 4511 (U.S. June 12, 1992) (stating that commercial activity exception is “[t]he most significant of the FSIA's exceptions”). [12]Transport Corp. v. S/T Manhattan, 405 F. Supp. 1244 (S.D.N.Y. 1975) [13]28 U.S.C. §§ 1602, 1603(d), 1605(a)(2) (1976). [14]Pub. L. No. 104-132, 110 Stat. 1214 [15] [16] [17] [18] [19] [20] 18 U.S.C. § 2333 [21] 28 U.S.C. § 1605B [22] 8 U.S.C. 1189 [23] 28 U.S.C. §§ 1609-1611, [24] FSIA 1605A [25] [26] 379 F.3d 1227 (11th Cir. 2004) [27] [28]See generally DapoAkande&Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts 21 (4) Eur. J. Int. Law 815 (2010) (examining the extent to which state officials are subject to prosecution in foreign domestic courts). [29] G.A. Res. 32/151, U.N. Doc. A/RES/32/151 (Dec. 19, 1977). [30] UN Convention on Jurisdictional Immunities of States and their Property, G.A. Res. 59/38, U.N. Doc. A/RES/59/38 (Dec. 2, 2004) (hereinafter UN Convention). [31]See Stacy Humes-Shulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008). [32] [33] Id. para. 78 [34] Id. para. 55 [35] [36] UN Convention, supra note 3, art. 2, para. 1 [37]Id., art. 13. [38]See Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgement, 2012 I.C.J. 99 (Feb. 3) (hereinafter Germany v. Italy) [39] Foreign Sovereign Immunities Act, 28 U.S.C § 1605(2015). [40]Id., §1605A. [41]Id. [42] [43] [44] [45] Id. Para 44 [46] [47] Id. Para 2. [48] Id. [49] [50] [51]18 U.S. Code § 2331 - Definitions [52] Id. [53] [54]See Republic of Arg. v. Weltover, Inc., 60 U.S.L.W. 4510, 4511 (U.S. June 12, 1992) (stating that commercial activity exception is “[t]he most significant of the FSIA's exceptions”). [55] [56] [57]Lauterpacht, Hersch. “The Problem of Jurisdictional Immunities of Foreign States.” British Year Book of International Law 28 (1951): 220–272. [58]See Republic of Arg. v. Weltover, Inc., 60 U.S.L.W. 4510, 4511 (U.S. June 12, 1992) (stating that commercial activity exception is “[t]he most significant of the FSIA's exceptions”). [59]

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