The U.S. Congress’ recent override of President Obama’s veto of bill 2040, Justice Against Sponsors of Terrorism Act (“JASTA”) brings home the point that sovereign immunity is not the accepted wisdom it once was. The new law allows confers jurisdiction on U.S. federal courts to hear claims of victims of terrorist attacks against foreign states that provided support for such attacks, even those states that the State Department has not designated as a state sponsor of terrorism. JASTA was enacted without opposition in the U.S. Senate and was enacted unanimously in the House of Representatives. The Senate vote to override the President’s veto was nearly unanimous as well.
Sovereign immunity, a.k.a. state immunity -- which bars courts of one country from hearing claims against the government of another country -- has existed for many years and in various forms in many countries; some consider it to be a principle or rule of customary international law. The immunity, originally very broad, has been narrowed in many countries so as to permit claims in respect of commercial activity. In more recent years, some countries including Canada and the U.S. have narrowed it further by allowing claims against certain countries they have designated as state sponsors of terrorism.
The most commonly cited justification for sovereign immunity is that law suits may harm international relations between the state of the plaintiff and the state being sued. However, I do not see why the government of a country being sued is likely to blame the government of the country of the plaintiff, who sues as a private citizen. The recent news and controversy surrounding the proposed Transpacific Partnership trade agreement brings to mind the fact that many governments have entered into trade agreements with dispute resolution clauses that allow foreign companies to sue them (albeit in closed door arbitrations). The stakes in such proceedings are usually very significant, sometimes affecting government policy. Even if the government does blame that other government for a private citizen’s legal action, is this a sound basis to bar such lawsuits altogether?
One of the reasons the President gave for the veto was the concern that JASTA might lead to people in other countries suing the United States in respect of the actions of American soldiers or diplomats abroad. But fear of being held accountable is never itself a sound basis to bar lawsuits.
The pros and cons of sovereign/state immunity are a topic far too complex for this blog. Suffice it to say the topic warrants a close look, and I hope the recent news about JASTA leads to that.