Sovereign Immunity and ‘JASTA’

Stephanie Ross DeSimone is suing Saudi Arabia for its role in 9/11 and the death of her husband. Because she can. On October 26 2016, the US Congress voted to override President Obama’s veto of the ’Justice Against Sponsors of Terrorism Act’ (JASTA). A first for President Obama. The Obama Administration was opposed to JASTA for many political reasons, but there is an important legal aspect as well. JASTA erodes or diminishes the international law on sovereign immunities and the stability of international relations.

The Bill

So what does this JASTA bill do? JASTA amends the famous 1976 Foreign Sovereign Immunities Act (FSIA) and expands the reach of US courts regarding those involved in acts of terrorism. The headlines have painted this as some sort of seismic shift in US legislation, while the shift had already taken place in 2008. In 2008, the FSIA jurisdiction for US courts was already expanded to include jurisdiction over those states designated as state sponsors of terrorism by the US government. So while the courts were given jurisdiction, it was under the control of the executive branch. The JASTA bill pushes that political control to after a suit against a state is filed. Now, individuals like Stephanie Ross DeSimone can sue Saudi Arabia even though it has not been designated as a state sponsor of terrorism. Only after a suit is filed, the Attorney General can intervene and seek a stay of the suit for a maximum of 6 months, when the US ’is engaged in good faith discussions with the foreign state’ in question. But the control is essentially lost, leaving the courts in a bit of a political pickle.

Opposition

The arguments coming from President Obama are not just legal, but also political. Obama opposed and vetoed the bill because it imperils the flexibility necessary in general for international relations. The US government will be less effective in dealing with states suspected of supporting or engaged in terrorism, or so the argument goes. And besides upending the rules on sovereign immunity, JASTA can hurt Americans abroad. If other states start enacting similar laws, and such exceptions become accepted, the United States itself could become the target of private lawsuits across the world. Because many people would love the sue US, if it cannot get to certain individuals such as John Yoo and Donald Rumsfeld.

Sovereign immunity

So what is sovereign immunity? The customary principles of sovereign immunity have been in place since ancient times.  A state is immune from national legal proceedings in another state. States are sovereign and equal, and it is improper for equals to judge each other in a national court. That is the theory, at least. But it is also impractical because sovereign immunity is an important element in the struggle for stable international relations. Just imagine that every individual could sue any state in a national court, and have that court sit in judgment of another state. It would create a lot of unnecessary friction between states. Saudi Arabia has already reacted angrily and hinted at problems for intelligence-sharing. There is also a question of fairness and equality of arms, which is the basis for the only accepted exception to sovereign immunity.

The ‘commercial activity’ exception

Over the years, one exception has been practiced by states, and which is also reflected in the FSIA. If the legal action is based upon a ’commercial activity’ of the defendant state, sovereign immunity is set aside. It would be unfair for the private party to the contract not to be able to take other contracting party to court, just because it is a state. But how do we determine what a ’commercial activity’ is and what not? The FSIA states that it must be determined by referring to the ’nature of the course of conduct or particular transaction or act, rather than by reference to its purpose’.

This actually deviates from the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. That treaty vaguely refers to both nature and purpose: ’reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed’. Under the FSIA definition, the contract between The Netherlands and Lockheed Martin for the controversial purchase of the controversial Joint Strike Fighter may just be treated as a normal contract. No sovereign immunity applies. But under the 2004 treaty that is not necessarily the case, as buying such a fighter plane may be seen as sovereign, non-commerical activity  because it is for a public purpose, namely national defense. Moreover, no private party will be able to buy such planes. So you decide when it comes to this classic example: the purchase of boots for the armed forces. You can let me know what you think in the comments below.

Reciprocity

JASTA once again shows the blind spot of US Congress when it comes to international law and international relations. Congress ignored the national security concerns and did not appreciate how much of a deviation this legislation is in international law. But more importantly, With Congress’ narrow-minded, American-centered view of things, reciprocity is little thought of. In this case, upending sovereign immunity to this degree by the US opens the door to reciprocal counter-suits in foreign courts. Another example is the UN Convention on the Law of the Sea and the Congress’ refusal to ratify it, despite urgings from every administration since Reagan. Congress does not want the US to be subjected to compulsory dispute settlement under the treaty. At the same time, however, neither can the US take advantage all the mechanisms under the treaty to, for instance, settle disputes about maritime zones in the Arctic. It is a shame that the US can only see international law as a too tight a restraint on the action of a Great Power. The US could use international law to further its national interests and as a stabilizing instrument on international relations.

Photo ‘congress‘ by EFF Photos under CC BY 2.0

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