State immunity, JASTA and its implications to the US
Vol. 38 Associate Editor
Sovereign immunity, while being forum dependent, has been recognized as an obligation under customary international law for long time. The International Law Commission first took the task to identify and codify state practice on sovereign immunity in 1978. After nearly three decades of work UN adopted the UN Convention on Jurisdictional Immunities of States and their Property in 2004. The Convention, not yet in force, 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 can immunity be restricted. Generally, commercial activities of states have been the most significant exception to the rule. 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). However, there has been controversy over the extent of the application especially in cases where the extent of damages is greater. In this regard, one of the most recent cases adjudicated by the IJC in 2012 is Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Between 2004 and 2008, in multiple 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 claim to the ICJ alleging it was immune 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. Under U.S law, until recently, the framework and exceptions to state immunity were provided primarily by the Foreign Sovereign Immunities Act (FSIA). It can be said that FSIA fits into the framework prescribed by customary law. It provides exceptions for waiver, commercial activity and insurable personal risk described above. 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. 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.” On Wednesday, September 28, 2016 the Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) by overriding the veto from President Obama. The purpose of the act was to primarily provide a remedy for the families of 9/11 against governments that provided material support to Al Qaeda and its leader, Osama bin Laden. Under JASTA:
“A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—
(1) an act of international terrorism in the United States; and
(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.”
The act defines international terrorism according to the definition provided in 18 U.S. Code § 2331 to mean 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.”
JASTA rids the limitations provided in FSIA: territoriality and need to arbitrate according to international law if acts happened abroad. However, in doing so, it not only puts the federal law in further tension with international law but also causes serious implications for the US itself in the long run. Let suppose for a moment that the families of the victims would be able to prevail in their claims under JASTA and that courts would grant them damages. As described above, beside the newly adopted JASTA—if we were to consider it as state practice— there is no other move within the formal framework of international law indicating an effort to further diminish the extent of state immunity. Hence, since the presumption of immunity would continue to be the prevailing principle, any court decision in the US would not be recognized in other countries. As a result, the judgements would be enforceable only within the US. This will push prudent countries that might be potentially liable to withdraw their assets and investments from the US to prevent their seizure causing considerable economic harm to the US. But there is more to the story. If sovereign immunity has been a long lasting principle in international law so has reciprocity between states. To put it more plainly, what’s good for the goose is good for the gander. If the US limits immunity to other sovereign states it will become vulnerable to loss of immunity by those same countries. However, we should not forget that nowadays US is one of the states with the biggest presence worldwide. First and foremost, in the last decades it has had a huge military presence and activity in the Middle East. Under the same definition of terrorism JASTA uses, it is not difficult to frame some of the actions taken by the US e.g. drone attacks as acts of terror and make the US government vulnerable to civil claims. So what started as a piece of legislation for internal political consume might end up having immense implications for the US and the international community. Only time will tell what will be the consequences of JASTA.
 See generally Dapo Akande & 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).  G.A. Res. 32/151, U.N. Doc. A/RES/32/151 (Dec. 19, 1977).  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).  See Stacy Humes-Shulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 (2008).  UN Convention, supra note 3, art. 2, para. 1.  Id., art. 13.  See Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgement, 2012 I.C.J. 99 (Feb. 3) (hereinafter Germany v. Italy).  Foreign Sovereign Immunities Act, 28 U.S.C §§ 1330, 1332, 1391(f), 1441(d), 1602–1611 (2015).  Id., §1605.  Id., §1605A.  Id.  Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222, https://www.congress.gov/114/bills/s2040/BILLS-114s2040enr.pdf.  Consideration made in the light of Germany v. Italy, supra note 7. Besides, other major key players either accept an absolute theory of immunity—e.g. China, Russia, India—or adhere to the European Convention on State Immunity.  See Francesco Parisi & Nita Ghei, The Role of Reciprocity in International Law, 36 Cornell Int’l. L.J. 93 (2003), for a general discussion of the principle of reciprocity.  See Conor Friedersdorf, The Obama Administration’s Drone-Strike Dissembling, THE ATLANTIC (Mar. 14, 2016), http://www.theatlantic.com/politics/archive/2016/03/the-obama-administrations-drone-strike-dissembling/473541/, for an overview of US drone activity during Pres. Obama.