JASTA: Impact on the Principle of Sovereign Immunity
Alejandra Salmeron Alfaro
Vol. 38 Associate Editor
The Justice Against Sponsors of Terrorism Act (“JASTA”) was passed by the Senate in May and the House in September of this year.[1] President Obama vetoed the Act on September 23rd.[2] In historic fashion, five days later Congress overrode Obama’s veto for the first time in his eight years as President.[3] The bill in question amends the federal judicial code to narrow the scope of foreign sovereign immunity.[4] Sovereign immunity, as defined by Congress, is a foreign state’s immunity from the jurisdiction of the U.S. courts.[5] In more specific terms, the bill waives sovereign immunity protections for Saudi Arabia and allows victims of the September 11 attacks and their relatives to sue the Saudi government for allegedly aiding the hijackers.[6] The override of Obama’s veto has caused domestic and international concern for a variety of reasons.[7] These include the possibility that the Act will backfire and bring suits from other countries against the United States, the potential repercussions for foreign relations, the implications for how the United States is perceived by the rest of the international community, and its clash with long standing international principles.[8] The principle of sovereign immunity has been part of traditional domains of international law for over 200 years.[9] The norm is based on the idea that “equal sovereigns should not use their courts to sit in judgment of one another.”[10] The United States benefits greatly from this arrangement because of all of its activities abroad.[11] JASTA effectively curtails this principle in regards to Saudi Arabia, in direct conflict with established international practice. In a statement to the State Department, The European Union expressed that JASTA has detracted from the principle of sovereign immunity and expressed their concern that it would lead to reciprocal action by other states, damaging the rule and what it stands for.[12] Other nations, notably Saudi Arabia, but also joined by Russia, and France (apart from the critique of the European Union) have already begun to demonstrate their outrage against the bill, calling it a blunt violation of international law.[13] A French minister, Pierre Lellouche, cautioned that JASTA would leave the world in “a state of jungle where everyone will sue everyone.”[14] Though the statement overreaches and exaggerates, it is an example of the sentiment JASTA has already caused on the international stage. Russia was also quick to denounce what they called another example of the United States’ disregard for international law.[15] This is not the first time that the United States has treaded around the concept of sovereign immunity as it pertains to terrorism. The Terrorism Risk Insurance Act of 2002, President Obama’s Executive Order No. 13.599, and the Iran Threat Reduction and Syria Human Rights Act of 2012 together have also caused outrage from the international community.[16] However, some argue that those exceptions to sovereign immunity were limited and justified, unlike the broader, more open-ended JASTA Act.[17] Such broad curtailing of international law in the name of terrorism will most likely bring more significant diplomatic consequences.[18] The U.S. Congress has been critiqued by national and international sources not only for abandoning this long respected tenant of international law, but also for doing it carelessly without fully contemplating what it could mean for the United States in light of its activities in foreign states.[19] For example, Senator Bob Korker expressed his concern regarding drone attacks: “Let’s face it, our alleged drone attacks have killed civilians in Pakistan. Our alleged drone attacks have killed civilians in Afghanistan, and I think once you begin opening the door for these type of activities it can be very problematic.”[20] President Obama and other critics of the bill were quick to point out these issues to the legislature.[21] However, Congress swiftly overrode the veto in order to pack up their bags and get ready for elections. This resulted in their failure to pause and fully comprehend the implications this bill has in the international sphere and its potential for backlash. As Senator McConell, the majority leader, described, “everybody was aware of who the potential beneficiaries were but no one had really focused on the potential downside in terms of our international relationships… it was just a ball dropped.”[22] Because the President’s veto was overwhelmingly overridden, this bill will become law, limiting sovereign immunity for Saudi Arabia and carrying the potential to cast a broader net in the future. Though some critics have sounded off alarming predictions of just what Saudi Arabia will do in retaliation, it is most likely that apart from the strong condemnation of JASTA, nothing more will be done.[23] The concern is its “pile on” effect to already shaky US-Saudi relations.[24] The bigger issue is what other nations will do in response, potentially changing their own sovereign immunity laws in order to allow suits against the United States for interventions in their respective countries.[25] The world will not necessarily turn into a lawsuit jungle, but other nations may certainly feel that JASTA allows them to seek justice against wrongs caused by US actions as well. For now, all that is left is to wait and see what aftermath this defiance of international law will bring.
[1]Justice Against Sponsors of Terrorism Act, S. 2040, 114th Cong. (2016), https://www.congress.gov/bill/114th-congress/senate-bill/2040. [2] David Welna, Obama Vetoes Bill to Allow Sept. 11 Victims to Sue Saudi Government, NPR (Sept. 23, 2016, 7:19 PM), http://www.npr.org/sections/thetwo-way/2016/09/23/495249958/obama-vetoes-bill-to-allow-sept-11-victims-to-sue-saudi-government. [3] Reuters, U.S. Lawmakers May Change Sept. 11 Law After Rejecting Veto, The New York Times (Sept. 30 2016, 3:30 AM), http://www.nytimes.com/reuters/2016/09/30/world/middleeast/30reuters-usa-sept11-saudi-congress.html. [4] Justice Against Sponsors of Terrorism Act, S. 2040, 114th Cong. (2016), [5] Id. [6] Welna, supra note 2. [7] See, e.g., Curtis Bradley & Jack Goldsmith, Don’t Let Americans Sue Saudi Arabia, The New York Times (April 22, 2016), http://www.nytimes.com/2016/04/22/opinion/dont-let-americans-sue-saudi-arabia.html; Reuters, U.S. 9/11 Law Exasperates Saudis, Government Silent, The New York Times (Sept. 29, 2016, 6:48 AM), http://www.nytimes.com/reuters/2016/09/29/world/middleeast/29reuters-usa-sept11-saudi-reaction.html; Seung Min Kim & Burgess Everett, McConnell: Saudi 9/11 Law Could Have Unintended Ramifications, Politico (Sept. 29, 2016, 4:30 PM), http://www.politico.com/story/2016/09/mitch-mcconnell-saudi-9-11-bill-228903; Jordan Fabian & Jordain Carney, White House Pressures Lawmakers to Abandon Saudi 9/11 Bill, The Hill (Sept. 16, 2016 1:30 PM), http://thehill.com/homenews/administration/296339-white-house-pressures-lawmakers-to-abandon-saudi-9-11-bill. [8]; Id. [9] Jasper Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 Eur. J. Int’l Law 853, 853-54 (2010), http://ejil.oxfordjournals.org/content/21/4/853.full.pdf+html. [10] Curtis Bradley & Jack Goldsmith, Don’t Let Americans Sue Saudi Arabia, The New York Times (April 22, 2016), http://www.nytimes.com/2016/04/22/opinion/dont-let-americans-sue-saudi-arabia.html. [11] Id. [12] Clifford May, A Strategic Mistake in Counterterrorism, The Washington Times (Oct. 4, 2016), http://www.washingtontimes.com/news/2016/oct/4/justice-against-sponsors-of-terrorism-act-a-strate/. [13] See Saudi Arabia Slams JASTA Law, Ala Arabiya English (Sept. 30, 2016), http://english.alarabiya.net/en/2016/09/30/Saudi-Arabia-slams-JASTA-law-.html. [14] Joe Perticone, Exclusive: French MP Pierre Lellouche: France Must Retaliate Against the US for JASTA, Independent Journal Review (Oct. 7, 2016), http://ijr.com/2016/10/708741-exclusive-french-mp-pierre-lellouche-france-must-retaliate-against-the-us-for-jasta/. [15] World United in Decrying JASTA, Warn of Legal Implications on All States, Ala Arabiya English (Oct. 1, 2016), http://english.alarabiya.net/en/perspective/features/2016/10/01/World-united-in-decrying-JASTA-warn-of-legal-implications-on-all-states-.html. [16] Victor Grandaubert, Is There A Place for Sovereign Immunity in the Fight Against Terrorism? The US Supreme Court Says ‘No’ in Bank Markazi v. Peterson, Blog of the European Journal of International Law (May 19, 2016), http://www.ejiltalk.org/is-there-a-place-for-sovereign-immunity-in-the-fight-against-terrorism-the-us-supreme-court-says-no-in-bank-markazi-v-peterson/. [17] May, supra note 12. [18] Id. [19] Jordan Fabian & Jordain Carney, White House Pressures Lawmakers to Abandon Saudi 9/11 Bill, The Hill (Sept. 16, 2016 1:30 PM), http://thehill.com/homenews/administration/296339-white-house-pressures-lawmakers-to-abandon-saudi-9-11-bill. [20] Id. [21] Bradley, supra note 10. [22] Seung Min Kim & Burgess Everett, McConnell: Saudi 9/11 Law Could Have Unintended Ramifications, Politico (Sept. 29, 2016, 4:30 PM), http://www.politico.com/story/2016/09/mitch-mcconnell-saudi-9-11-bill-228903. [23] Reuters, U.S. 9/11 Law Exasperates Saudis, Government Silent, The New York Times (Sept. 29, 2016, 6:48 AM), http://www.nytimes.com/reuters/2016/09/29/world/middleeast/29reuters-usa-sept11-saudi-reaction.html. [24] Bruce Riedel, What JASTA Will Mean for U.S.-Saudi Relations, The Brookings Institution (Oct. 3, 2016), https://www.brookings.edu/blog/markaz/2016/10/03/what-jasta-will-mean-for-u-s-saudi-relations/. [25] Fabian, supra note 19.
