By: Kartik Hede and Harshita Tyagi, SVKM’s Pravin Gandhi College of Law
Edited by The Editorial Board of SAIL.
The United States Congress on September 28, 2016, enacted the Justice Against the Sponsors of Terrorism Act (“JASTA”). The act was aimed at providing families of the victims of the September 11, 2001 attacks with a judicial recourse against the alleged perpetrators of the attack. However, the enactment of JASTA signals a further departure from the customary principles of international law, particularly sovereign immunity. JASTA strikes at the heart of sovereign immunity, declaring that a sovereign nation can be held accountable in the domestic courts of another nation. This blog seeks to analyse the complications that JASTA raises for customary international law, with particular emphasis on its impact on the age-old notion of sovereign immunity.
The United States Congress on September 28, 2016, enacted the Justice Against the Sponsors of Terrorism Act(“JASTA”). It allowed victims of terror-related attacks to file civil claims against foreign nations customarily shielded by the legal doctrine of jurisdictional sovereign immunity. It achieved this by amending two key pieces of legislation – the Foreign Sovereign Immunities Act (“FSIA”), and the Anti-terrorism and Effective Death Penalty Act (“AEDPA”). Essentially, JASTA created an exception to jurisdictional sovereign immunity, which allowed plaintiffs to bring civil suits against foreign nations accused of materially sponsoring persons or groups affiliated with acts of terrorism. JASTA is yet another strike against the hallowed principle of sovereign immunity which has been honoured and adopted by all nations. It exhibits a blatant disregard for customary international law and makes a feeble attempt at justification by cloaking it as a terrorism exception.
Sovereignty as we know it today emerged from war and conflict. The rise of a new socio-economic order threatened the existing state of affairs in medieval Europe. As a political order dominated by religion took root, carnage and destruction ensued in what remained of the Holy Roman Empire, which culminated after thirty long years in the Peace of Westphalia in 1648. It signified the dawn of modern international law, setting down principles of self-determination and non-interference in the internal affairs of sovereign states. Sovereignty as laid down in Westphalia relates to a state’s capacity to act as an independent and autonomous entity. The Charter of the United Nations affirms this principle in Article 2(1) which states that “The Organization is based on the principle of the sovereign equality of all its Members.” It is reiterated by the United Nations General Assembly (“UNGA”) in Resolution 2131, on December 21, 1965, entitled “Non-interference in the internal affairs of States and the protection of their independence and sovereignty.”
The legal doctrine of sovereign immunity finds its basis in multiple theories expounded over the years. The case of Kawananakoa v. Polyblank explains it lucidly – “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Implicit in this, is the understanding that sovereign immunity is not a perfunctory endowment, but rather a fundamental principle that is intrinsic to the identity of an independent nation.
SHIFT IN THE POLICY OF THE UNITED STATES OF AMERICA
Sovereign immunity in the United States of America was bestowed with an absolute status until 1952. A dramatic shift in its approach to this principle came about with the adoption of the Tate Letter. It announced that the United States of America was abandoning its recognition of absolute sovereign immunity in favour of a restrictive theory of jurisdictional immunity. It meant that the acts committed by a sovereign state in its private or commercial capacity, also known as acta de jure gestionis, would not be immune from suits filed by US nationals. Only those acts which were carried out in its sovereign capacity, known as acta de jure imperii, would be subject to absolute immunity. This theory is based on an unrealistic distinction that a sovereign relinquishes its autonomy when it engages in private acts. A sovereign always acts in the general interests of the people and is unable to act in a private capacity.
Nevertheless, in January 1977, the United States enacted the Foreign Sovereign Immunities Act to codify the change in policy adopted in 1952. It stated that foreign nations would not be immune from the jurisdiction of courts in the United States if they were deemed to meet the criteria laid out in the FSIA. It allowed courts to attach the property of foreign states located in the United States, provided that the property was used for commercial purposes alone. However, the US Supreme Court in First National City Bank v. Banco Para El Comercio Exterior de Cuba established the Bancec rule, which greatly restricted the property that could be attached for recovery of damages. The Bancec rule stated that a “juridically separate instrumentality” could not be attached in the event a judgement went against a foreign state. A “juridically separate instrumentality” is an entity that is operated separately from the foreign state, even though the state may exercise ownership of the entity.
In 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act, in the aftermath of the World Trade Centre bombing in 1993, and the Oklahoma bombing in 1995. While the act primarily dealt with deterring terrorism and providing justice to the victims of terror attacks, AEDPA also amended the FSIA via Section 221. It added a jurisdictional exception for lawsuits against terrorist states. This terrorism exception spurned sovereign immunity and permitted a direct suit against a foreign state which had been designated as a State Sponsor of Terrorism. Nevertheless, the Bancec rule still applied and courts could not attach property if it was proven to be a ‘juridically separate entity’, even if the foreign state was a designated sponsor of terrorism. This was remedied in 2008 when Congress passed an amendment partially repudiating the Bancec rule for the terrorism exception and allowed property to be attached in favour of successful plaintiffs.
THE JUSTICE AGAINST THE SPONSORS OF TERRORISM ACT
The preamble of JASTA reads as “An Act to deter terrorism, provide justice for victims and for other purposes.” The legislation amends the FSIA and the AEDPA to allow plaintiffs to file civil claims against foreign states irrespective of whether they were designated as State Sponsors of Terrorism. Despite its generic language, which largely correlates with the terrorism exception laid out in FSIA, JASTA was drafted with the singular aim of providing the families of the victims of the September 11, 2001 attacks with means to initiate civil claims against the government of Saudi Arabia. § 1605B of JASTA states that foreign states shall not be immune from the jurisdiction of courts in the United States for physical injury to persons, property or death occurring in the United States which are caused by an act of international terrorism or a tortious act. Furthermore, JASTA eliminates the “entire tort” requirement, which necessitates that both, the alleged injury and the terrorist act occur within the United States. Consequently, this facilitates courts to exercise jurisdiction against foreign nations regardless of where the terrorist act of the foreign nation occurred, as long as the injury occurred within the territory of the United States.
JASTA merely continues the United States’ myopic approach to the customary principle of sovereign immunity. The US Supreme Court in the case of Verlinden B.V. v. Central Bank of Nigeria stated that granting immunity was “a matter of grace and comity on part of the United States” and was not binding upon it. This position was reiterated in the case of Republic of Austria v. Altmann. The principle of sovereign immunity has been held to be a basic tenet of international law and is also embodied in Article 2(1) of the United Nations Charter. Consequently, these decisions of the US Supreme Court and the policy of the United States Congress undermine and threaten the fundamentals of modern international law as we understand it. With the enactment of JASTA, the United States has struck yet another potent blow at the heart of sovereign immunity. By permitting domestic courts to exercise jurisdiction over sovereign nations, the United States weakens the fundamental principles which help maintain the present world order.
International law finds its credibility in unequivocal acceptance by sovereign nations. Without this affirmation, the customs and principles of international law remain mere words lacking cogency. Sovereign immunity echoes the maxim par in parem non habet imperium, which means that an equal has no power over another equal. It forms the bedrock of modern international law. JASTA is another instrument in a line of legislation that unilaterally strikes at the very heart of that bedrock, with their brazen disregard for jurisdictional immunity. The United States of America, in going beyond the exceptions already created in the FSIA and AEDPA, showcases a patent disregard for the same principles which have thus far served to benefit them. In exploiting their stature in the international community, the United States has essentially subordinated other sovereign nations via JASTA, although the enforceability of any successful judgements will be severely tested against international relations. JASTA is still good law and continues to pose a potent threat to the notion of sovereign immunity. It remains to be seen whether it lingers as a mere reminder of a bereaved nation yearning for retribution or is adopted by more nations, thereby further eroding what remains of international law.
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11 Fakhoury, Amer Ghassan. “Justice Against Sponsors Of Terrorism Act (Jasta) Under The Light Of Public International Law: Shifting From The Absolute Theory To The Restrictive Theory.” International Journal of Humanities and Social Science Invention 6.10 (2017): 29-45. Print.