Posts
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.
