Road to Hell is Paved with Good Intentions

One gets the impression that the American lawmakers got carried away by short-term political agenda and lost sight of the fundamental nature of what they are dealing with and, inadvertently, undermined one of the pillars of international law.

“It is apparent that despite its inclusion in the statute book, the rule of law remains a complex and in some respects uncertain concept”.

This mind blowing finding is contained nowhere else but in the report of the UK House of Lords which in 2006-2007 examined the relationship between branches of power – the legislative, the executive and the judicial.

Yet, why even ask a question that seems obvious, even banal? What practical purpose does it serve?

Erasmus Darwin, the grandfather of Charles Darwin, believed that, from time to time, one should ask himself the wildest questions. For instance, what will happen if you play the trumpet to tulips? Most likely nothing but if something happens the result would be truly remarkable.

So, what is the rule of law and what practical purpose does it serve?

Having defeated in 1066 Harold II, the last Anglo-Saxon king of England, William the Conqueror managed to unite England under one government. Similar processes were taking place in Europe: around the same time, the Frankish kingdom was created in western and central Europe; in the east, Vladimir the Great unified Slavic tribes into the united Kievan Rus.

The idea that the king makes the law - "quia lex facit regem" – was an important element of success. The idea was a very practical one: the legitimation of one’s power through the recognition of the rules and customs of different tribes. The prince, in a way, "privatized" the customary law by creating a system in which justice was administered in his name but according to the rules that already had been accepted by the people.

The practical meaning of the rule of law is that it can unite people around a system of rules if it is consistent, fair and convenient.

On Tuesday, May 1, 2018, a federal judge in the State of New York ordered Iran to pay damages to "parents, siblings and children" of those killed on September 11, 2001. According to the court, Tehran helped to carry out the attacks on the twin towers. Earlier, in a similar case, the judge refused to throw out similar claim against Saudi Arabia because of the sovereign immunity.

Both lawsuits are based on the Justice Against Sponsors of Terrorism Act (JASTA), adopted in 2016. The law extends the jurisdiction of US federal courts to civil suits against foreign governments in the events of death, injury or damage to property as a result of acts of terrorism.

In essence, the US refuses to recognize the immunity of foreign states - the principle of international law according to which states are immune from civil suit or criminal prosecution in foreign courts.

There is no question that terrorists and those who help them should be punished. There are questions about integrity and practicality of the law.

Although the target, apparently, is Saudi Arabia the law makes it possible to sue any country. "It doesn’t require that the foreign country did anything in the United States, it’s not limited to just nations known to normally be associated with terrorism,” says Professor Curtis Bradley of the University of Duke. “Potentially any nation could be sued.”

The requirement to base the claim on an act of state terrorism establishes, it seems, a high threshold and "normal" countries have nothing to worry.

This is illusory.

In October 2008, the UK Treasury invoked the Anti-terrorism, Crime and Security Act to freeze the assets of the Icelandic bank Landsbanki. It was made possible "because the Treasury believed that action to the detriment of the UK's economy (or part of it) had been or was likely to be taken by certain persons who are the government of or resident of a country or territory outside the UK". Prime Minister Gordon Brown announced the launch of legal proceedings against Iceland.

By adopting JASTA the US lawmakers act on the tacit assumption that other countries would not dare to reciprocate. And, most likely, they are right. Yet, what if they dare?

If the US does not provide other countries with the immunity against private claims in American courts, why should US property be protected?

This would bring claims against the US around the world and would have a negative impact on the international system of investment protection. The existence of international organizations, such as the Multilateral Agency on Investment Guarantees, depends, at least in part, on the right of subrogation to sovereign states.

Most importantly, however, is that the United States is trying to impose on others an idea that it does not share.

The principle of state immunity is well established in American law and, probably, there is no other country where this principle is followed with such consistency.

As early as 1821, Chief Justice John Marshall said that "[t]he universally received opinion is, that no suit can be commenced or prosecuted against the United States" (Cohens v. Virginia, 19 US (6 Wheat.) 264, 411-412 (1821)).

Subsequently, the Supreme Court repeatedly returned to this matter and always held the position that "the United States cannot be lawfully sued without its consent in any case" (United States v. Lee, 106 US 196, 204 (1882); United States v. Clarke, 33 US (8 Pet.) 436, 444 (1834); Hill v. United States, 50 US (9 How.) 386, 389 (1850); Kennecott Copper Corp. v. State Tax Commn., 327 US 573, 580 (1946)).

In Alden v. Maine the court ruled that the state immunity extends to the governments of states even if the proceedings seek to enforce federal laws (Alden v. Maine, 527 U.S. 706 (1999)). In Seminole Tribe v. Florida (517 U.S. 44 (1996)), the court restricted the right of the US Congress to allow lawsuits against the states and, thereby, to overcome the state immunity through adopting a federal law.

If there is a trend in the use of the doctrine, it is to extend its application. The Supreme Court applied this principle to patent infringement (Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav., 527 US 627 (1999) and age discrimination (Kimel v. Florida Bd. of Regents, 528 US 62 (2000)).

It would reasonable to suggest that the United States applies the doctrine differently to its own country and against foreign states, in order to protect its citizens. That would be understandable. However, this is not so.

In United States v. Stanley (483 U.S. 669 (1987)) the Supreme Court ruled that the government cannot be sued for injury caused by illegal medical experiments. James Stanley during his service in the US Army was given LSD without his knowledge or consent. The court confirmed the immunity of both the federal government and those officials who conducted these experiments.

One gets the impression that the American lawmakers got carried away by short-term political agenda and lost sight of the fundamental nature of what they are dealing with and, inadvertently, undermined one of the pillars of international law.

In practical terms this could mean that the US’s position as an undisputed global leader has been shaken.

Published: May 6, 2018