Cross-posted from Just Security.
In April, Curt Bradley and Jack Goldsmith wrote in The New York Times that the Justice Against State Sponsors of Terrorism Act (JASTA) then under consideration in the Senate - a bill that would make it easier for victims of the 9/11 terrorist attacks to sue Saudi Arabia - would violate international law and hinder United States' ability to claim sovereign immunity in other nations' courts. I argued in response that whether JASTA would violate international law was far from clear. Since then, the Senate passed a much changed version of JASTA. The revised bill would, among other things, create a new terrorism exception to the Foreign Sovereign Immunities Act (FSIA) for suits claiming damages for injury or death in the United States caused by the combination of an act of international terrorism in the United States and the act of a foreign state or official anywhere in the world.
Curt and Jack write in a new post that this exception would harm US interests because (1) it might lead to unanticipated suits against countries other than Saudi Arabia, and (2) it will "create a broad precedent that can be used against the United States and its allies as an excuse for 'reciprocal' or 'analogous' reductions in immunity even if no suit is brought against those countries in the United States." They suggest that Congress could reduce the damage to US interests by limiting the exception to Saudi Arabia alone. Doing so, they write, "would confine most of the impact of the statute to US-Saudi relations and thereby minimize collateral consequences." I doubt that the more targeted statute Curt and Jack propose would help with either of the problems they identify.
With respect to the foreign relations difficulties that suits under the new terrorism exception might cause, it is true that limiting the exception to Saudi Arabia would avoid the possibility of suits against other countries, but that possibility seems remote. It is hard to think of other countries whose acts contribute to international terrorism in the United States. And it hard is argue that any countries whose acts contribute to international terrorism in the United States should be immune from suit. On the other hand, singling out Saudi Arabia is likely to increase the affront to that country.
With respect to the precedent such an exception might create for reciprocal legislation in other countries, it is hard to see how a statute targeted at Saudi Arabia alone would provide less of an excuse for reciprocal reductions in the sovereign immunity of the United States and its allies. If another country wanted to allow suits against the United States in its courts for "international terrorism," a US exception aimed at a single country would be all the precedent it would need. Indeed, even without JASTA, a precedent for such foreign legislation may be found in the United States' existing exception for state sponsors of terrorism which allows suits against Iran, Sudan, and Syria and which is not limited to terrorism in the United States. While I do not think that terrorism exceptions violate international law (Canada has one too), I do think they are problematic. As Curt and Jack wrote back in April, "terrorism is often in the eye of the beholder." It would not be surprising for the United States to find itself targeted someday by another country's terrorism exception to sovereign immunity.
If Congress wants to reduce the adverse impacts on the United States that JASTA might cause, I would suggest another option. Rather than create a new terrorism exception to the FSIA, Congress might amend the territorial tort exception not to require that the "entire tort" have occurred in the United States. This was the option proposed in the version of JASTA that I wrote about in April, and it would be just as effective in removing sovereign immunity as a barrier to the 9/11 suits. The territorial tort option would have several advantages.
First, as I explained in my previous post, the territorial-tort exception is well supported by state practice. Although US courts currently interpret the existing exception in the FSIA to require that the "entire tort" have occurred in the United States, it does not appear that customary international law requires this limitation. Building on the well-established territorial tort exception is likely to be less controversial internationally than expanding the more politically charged terrorism exception.
Second, the territorial tort exception is subject to an important exception of its own for military activities during armed conflict. In 2012, the International Court of Justice (ICJ) concluded in the Jurisdictional Immunities Case (Germany v. Italy) that customary international law requires "that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict" (para. 78). A number of the specific examples that Curt and Jack worried about in their April piece - like arming Syrian rebels or airstrikes against al-Qaeda and the ISIL - would fall in this category. Using the territorial tort option in JASTA would allow the United States to continue to claim immunity under customary international law for military activities even if JASTA eliminated immunity for non-military activities.
Third, it is important to remember that the territorial tort exception is a territorial tort exception. The only countries that would be able to exercise jurisdiction over the United States reciprocally by enacting a similar exception are those countries in which tortious injury occurs. In April, Curt and Jack raised the possibility that the United States might become subject to suits based on financial support of Israel that results in displacing or killing Palestinians in the West Bank. But under the territorial tort exception, it is only the courts of the Palestinian Authority that would be able to exercise such jurisdiction. The territorial tort option would create no risk of expanded jurisdiction for torts in the courts of third countries.
Of course, the same is technically true of JASTA's new terrorism exception, which requires an act of international terrorism "in the United States." But it is not true of the existing FSIA exception for state sponsors of terrorism, which contains no such limitation. If Congress is really worried about reciprocal legislation by other countries that might strip the United States of its sovereign immunity, the territorial tort option is a safer one than the terrorism option passed by the Senate.
Although I am less concerned than Curt and Jack about the adverse impacts of passing JASTA, they have certainly identified some genuine concerns. The territorial tort option would be a better way of addressing those concerns than limiting the bill to Saudi Arabia. Whatever speculative damage to US relations with other countries might be avoided by limiting the bill as Curt and Jack suggest is likely to be more than offset by the offense that singling out Saudi Arabia would cause. As for the precedent that JASTA would set for reciprocal legislation in other countries, a territorial tort exception would build on a firmer foundation, exempt military activities, and be territorially limited in ways that a terrorism exception - even one limited to a single country - would not.