Washington Law Review

Comment

A Natural Progression of Restrictive Immunity: Why the JASTA Amendment Does Not Violate International Law

October 03, 2017 | 92 Wash. L. Rev. 1515

Abstract: On September 11, 2001, terrorists from extremist group al-Qaeda hijacked four commercial flights and flew two into the World Trade Center towers in New York City and one into the Pentagon in Washington, D.C. Many sought justice for friends and loved ones harmed in the attacks by bringing lawsuits against Saudi Arabia. These lawsuits alleged that Saudi Arabian leaders knowingly donated to charities that funded al-Qaeda which helped the group to pay for the September 11th terror attacks. The Second Circuit, however, dismissed the lawsuit on sovereign immunity grounds in 2008. Frustrated with the ruling, Congress passed the Justice Against Sponsors of Terrorism Act (JASTA). JASTA amended the Foreign Sovereign Immunities Act to allow lawsuits against foreign states when the plaintiffs allege the foreign state intentionally funded, sponsored, or facilitated intentional acts of terrorism on United States soil. This amendment has received global criticism for both its practical and legal effect on the rest of the world. The harshest critics claim that the United States is now in violation of international law, bolstered by a recent decision from the International Court of Justice (ICJ), Jurisdictional Immunities of the State. This Comment argues that the JASTA amendment to sovereign immunity does not violate international law or the ICJ decision. Due to the development of state immunity and the particular protections provided to sovereign acts in the ICJ decision, the JASTA amendment only denies state immunity when the foreign state is acting as a private citizen. Therefore, the JASTA amendment does not violate international law.

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