Suing Foreign States Before U.S. Courts: Non-Recognition of State Immunity as a Response to Internationally Wrongful Acts

Abstract

The lawsuits that the survivors and families of the victims of the 9/11 terrorist attacks filed against Saudi Arabia and other foreign defendants have brought to the fore a controversial issue: whether the international law of state immunity can be infringed to ensure accountability for the most serious assaults on fundamental values of the international community. This paper focuses on this and other cases of denial of foreign state immunity before U.S. courts and purports to investigate whether the assertion of jurisdiction in these instances can be considered a justified response to prior internationally wrongful acts. The first part of the paper examines a number of U.S. judgments denying state immunity pursuant to certain exceptions under the Foreign Sovereign Immunities Act: the Anti-Terrorism and Effective Death Penalty Act, the ‘international taking’ exception, the territorial tort exception, implied waiver, and the Justice Against Sponsors of Terrorism Act. This analysis concludes that the assertion of jurisdiction in these cases cannot be considered lawful in the light of the existing rules of state immunity under international law. The paper highlights however that these cases are premised on the existence of prior wrongful acts on part of the state whose immunity is denied. The second part assesses whether these prima facie unlawful assertions of jurisdiction can be justified as countermeasures under the international law of state responsibility. By distinguishing according to the organs that participate in the adoption of these potential countermeasures, three categories are identified: executive, judicial, and mixed countermeasures. Following some considerations on the compatibility of the rules of state immunity with the countermeasure mechanism, the paper shows that neither the law of state immunity nor the law of state responsibility contain any limitation in this respect. Finally, this paper evaluates how domestic courts can comply with the procedural and substantive requirements for the adoption of lawful countermeasures in the form of non-recognition of sate immunity. It concludes with some reflection on the prospective legality of the Justice Against Sponsors of Terrorism Act (JASTA).