Yesterday afternoon, reports surfaced that the European Union presented a letter to the State Department expressing concerns about the Justice Against Sponsors of Terrorism Act (JASTA), a measure unanimously passed by both chambers of Congress earlier this year after nearly seven years of careful deliberation and refinement. The letter, which was somehow obtained and distributed to the media by public relations agents working for the Saudi government, expresses the European Union’s understanding that JASTA “would be in conflict with fundamental principles of international law and in particular the principle of State sovereign immunity.”
The letter provides no explanation of the basis for this claim, which is plainly mistaken. The absence of any rationale based on the text or scope of JASTA indicates that our European friends are responding to the alarmist and inaccurate portrayals of JASTA that have been loudly promoted by its opponents, rather than to the bill itself, which is deeply rooted in international legal norms that are actually embraced by virtually all European Union member States themselves.
For many decades, the overwhelming majority of European Union member States have embraced the “restrictive theory” of sovereign immunity, under which States are subject to suit in the courts of another country in a variety of circumstances when they cause harm there. Under the restrictive theory, the world long ago abandoned the outdated and unjust notions of absolute immunity predicated on the idea that “the King can do no wrong,” instead embracing the view that states should be accountable for harm they cause in another jurisdiction in many circumstances.
The nations of Europe in fact took the lead in moving the world towards the restrictive theory, and it has long been the international norm. See Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 310 (2d Cir. 1981) (“At this point, there can be little doubt that international law follows the restrictive theory of sovereign immunity (citing UK and European practice in particular); Doe v. Fed. Democratic Republic of Eth., 2016 U.S. Dist. LEXIS 67909, *44 (D.D.C. May 24, 2016) (“As explained during the hearings on the [Foreign Sovereign Immunities Act in 1976], ‘almost all countries in Western Europe [had come to] follow the restrictive theory of sovereign immunity”).
Consistent with this restrictive theory of foreign sovereign immunity, almost all European nations recognize an exception to foreign sovereign immunity for tort claims involving injuries occurring in their countries, in one form or another. For example, the 1976 European Convention on State Immunity includes such a tort exception, and the state parties to that Convention include Austria, Belgium, Luxembourg, Switzerland, Germany, the Netherlands and the United Kingdom. The United Kingdom has separately enacted its own statutory immunity law, which also includes a broad tort exception to foreign sovereign immunity. Further, the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 also includes a tort exception to foreign sovereign immunity that embraces a broad formulation of doctrines of attribution, and nations within and outside Europe are signatories to that document. (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Italy, Latvia, Portugal, Romania, Slovakia, Spain, Sweden, and the UK/Ireland). Several European states that do not have their own statutes and are not parties to any international convention on the issue embrace the restrictive theory as a matter of civil or common law.
When the United States codified the restrictive theory of foreign sovereign immunity in 1976 through the passage of the Foreign Sovereign Immunities Act (FSIA), it too embraced an exception for tort claims arising from “personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of [a] foreign state.” 28 U.S.C. 1605(a)(5).
For many decades following its enactment, this provision was consistently understood to withdraw foreign sovereign immunity in cases in which a foreign state aided from abroad a terrorist act on U.S. soil. Indeed, as recently as 2004, the U.S. Justice and State Departments jointly argued to a federal appeals court that this existing tort exception would apply to tort claims “in cases of terrorism on U.S. territory, such as the September 11th attacks.” No European nation suffered harm or any adverse impact on its interests from these longstanding interpretations of the U.S. tort exception, which prevailed for over 30 years.
JASTA itself is nothing more than a very specialized tort exception, applicable in very narrow circumstances to a particularly heinous subset of tortious conduct – namely, the knowing sponsorship of terrorism. It is a modest measure restoring the longstanding interpretations of the tort exception for terrorist attacks on U.S. soil, deeply rooted in the restrictive theory of sovereign immunity embraced by virtually all European Union member States.
Consistent with international practice, JASTA requires a very direct nexus between the terrorist tort of a foreign state and the resulting harm within the United States. It requires not only that the claims be based on an act of international terrorism occurring in the United States and involving a physical injury in the United States, but also expressly requires that that physical injury be “caused by” the terrorist tort of the foreign state itself.
JASTA’s immunity exception is, moreover, expressly unavailable for any claim of negligence, and its substantive cause of action applies only to the knowing provision of substantial assistance to a designated Foreign Terrorist Organization. That list includes only the most notorious terrorist organizations, and our European allies do not knowingly aid them for any reason.
Additional limitations in JASTA further demonstrate Congress’ painstaking efforts to embed key international norms into the bill and to eliminate any unintended consequences.
For instance, JASTA is expressly inapplicable to any “act of war” as already defined under U.S. law, a limitation that precludes JASTA’s invocation in regards to military activities of a foreign state. This express limitation directly incorporates the traditional international norm under which military activities of foreign sovereigns are excluded from the tort exception to sovereign immunity. Members of the European Union have actually challenged this exclusion in the past, urging that it should not apply to jus cogens violations, but the U.S. Congress has expressly declined to do so in JASTA, thus reaffirming as a matter of U.S. statutory law an important international norm that has been called into question by legal claims advanced by European Union member States.
The European Union member States should also take comfort in the fact that JASTA retains the expansive immunity individual foreign officials and diplomats enjoy from being sued in the United States. Under U.S. law, the immunity of individual foreign officials is governed by common law principles (not the FSIA), which provide foreign officials near absolute immunity from suit in U.S. courts unless the State Department – which has the final say – rules otherwise. JASTA does not disturb these expansive immunities at all. Foreign diplomats and consular officials, meanwhile, enjoy all of the additional immunities afforded them under the Vienna
Convention on Diplomatic Relations, to which the United States and 189 other nations are signatories.
Finally, JASTA is consistent in all respects with the principles and values set forth in the European Union’s Charter, which affirms the right to life, liberty and security, that those who are wronged are entitled to “an effective remedy before a tribunal,” and that “[e]veryone is equal before the law.”
For these and many other reasons, our European Union allies have no reason whatsoever to be apprehensive about JASTA. Quite to the contrary, they should be encouraged that its enactment will help make Europe safer from the terrible terrorist threats that have so tragically materialized in London, Madrid, Paris, Brussels, Berlin and so many other cities in Europe.
Indeed, as U.S. Deputy Secretary of State Tony Blinken attested in a recent affidavit filed in a U.S. court, “imposing civil liability on those who commit or sponsor acts of terrorism is an important means of deterring and defeating terrorist activities,” and thus serves our shared “compelling interest in combatting and deterring terrorism at every level.”
JASTA advances those global security interests, through a narrowly tailored immunity exception that aligns with international norms and practice.