Tag Archive | "sovereign immunity"

Photo Credit: National Park Service

President Obama to Veto 9/11 Tort Legislation to Protect Sovereign Immunity

Photo Credit: National Park Service

Photo Credit: National Park Service

On Monday, September 12, 2016, White House press secretary Josh Earnest said that despite bipartisan support, President Obama is likely to veto legislation approved by Congress, which would allow the families and victims of the September 11, 2011 attacks to sue the government of Saudi Arabia for any role it might have had in the attacks. The name of this bill is the Justice Against Sponsors of Terrorism Act (JASTA).

While the highly emotional motivation behind this piece of legislation is completely understandable: Protecting the United States and the concept of sovereign immunity, which protects U.S. diplomats, U.S. service members and U.S. companies from the possibility of being hailed into courts around the world.

In a rare showing of bipartisanship, Congress has placed President Obama in a perilous position. By passing this legislation, many initial observers view President Obama’s veto as preventing families and victims of the 9/11 attacks from seeking justice. However, the eyes of patrons championing this view are clouded by emotion and the atrocity of the 9/11 attacks. President Obama correctly understands that there are ways for families and victims of the 9/11 attacks to seek justice without alienating a long-time ally in Saudi Arabia, and without leaving United States citizens and entities vulnerable to legal action brought by foreign nations. Furthermore, the purpose of JASTA was all-but eviscerated by the subtle changes the Senate made to the bill just before passing it. The net effect of these changes make it all-but impossible for the 9/11 victims and their families to actually recover damages, even if they can prove Saudi Arabia’s involvement.

In a world already stretched thin from numerous international conflicts, the international legal implications of a world without sovereign immunity, as we know it, are unfathomable. Additionally, if JASTA were to pass, it would likely provoke Saudi Arabia, and potentially other countries, to remove billions of dollars of assets from U.S. soil. From a purely strategic point of view, at a time when the United States is tightly locked in a proxy war in Syria and Iraq against ISIS, this is simply not the time to lose any friends in the Middle East.

Even if President Obama does veto this piece of legislation, it’s possible Congress might have enough votes to override his veto. If this were to occur, it would be first veto-override of President Obama’s presidency.

Joseph Apisdorf is currently a second-year law student at University of Denver Sturm College of Law and managing editor of the Denver Journal of International Law and Policy.

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The Enrica Lexie

Revisiting jurisdiction over the Enrica Lexie incident

In my last post about the Enrica Lexie incident, I stated that under the United Nations Convention on the Law of the Sea (UNCLOS), Italy had excusive jurisdiction over the Italian military personnel who allegedly killed two Indian fishermen mistaking them for pirates. Roger Philips at Communis Hostis Omnium rightly pointed out that the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention) contained some contradictory jurisdictional provisions. Upon a closer analysis of the relevant international law, it is clear that Italy and India have concurrent jurisdiction over the Italian armed guards.

The Enrica Lexie

India and Italy have both signed and ratified the 1988 SUA Convention requiring States Parties to criminalize the enumerated offences from Art. 3 in their domestic penal codes. Art. 3(1) lists performing “an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” as well as “injur[ing] or kill[ng] any person, in connection with the commission or the attempted commission of any of the [enumerated] offences.” The alleged actions of the Italian marines clearly implicate the SUA Convention.

SUA Art. 6 expressly allows for jurisdiction based on the territorial, nationality, passive personality, and protective principles. Thus while UNCLOS confers jurisdiction on Italy alone, the SUA Convention allows for India to claim jurisdiction under Arts. 6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1) and 6(1)(3). As a purely practical matter, jurisdiction falls to the country that reaches the alleged perpetrators first, subject to the principle of aut dedere aut judicare (“extradite or prosecute”).

Indeed, the facts of the Enrica Lexie mirror those from the famous 1927 Lotus opinion by the PCIJ where a French ship collided with a Turkish ship killing eight Turkish sailors on the high seas. The French captain was prosecuted in Turkish courts and the Turkish and French governments submitted the question of jurisdiction to the PCIJ. The latter held that, absent a relevant provision to the contrary, Turkish courts could exercise criminal jurisdiction over the French captain because the incident took place on the high seas and had a substantial effect on Turkey.

Art. 6 of the 1958 Geneva Convention on the High Seas, which says that all ships “save in exceptional cases expressly provided for in international treaties . . . shall be subject to [the] exclusive jurisdiction [of the flag state] on the high seas,” provided a provision contrary to the PCIJ’s holding in Lotus that was subsequently reflected in UNCLOS. The SUA Convention apparently provides for an express exceptional case anticipated by art. 6 of the Geneva Convention. To obtain exclusive jurisdiction over the Italian guards, Italy would have to convince India, through diplomatic channels, that the SUA Convention did not apply to the Enrica Lexie because the presence of armed military personnel on board made it a ship “operated by a State when being used as a naval auxiliary,” and thus outside the auspices of SUA pursuant to art. 2(1)(2) – a nearly impossible scenario.

So, as Douglas Guilfoyle points out on the European Journal of International Law’s blog EJIL Talk, whether the Italian marines will be indicted by the Indian authorities will be a question of sovereign immunity, not jurisdiction. Because the Italian guards were part of the military, they are considered a Vessel Protection Detachment (VPD) rather than a team of Private Armed Guards (PAGs). As a general rule, the former enjoys sovereign immunity while the latter does not. Professor Guilfoyle suggests that though it is ultimately up to the Indians to respect Italy’s sovereign immunity – and India will undoubtedly seek out exceptions it can use to overcome the immunity claim – the immunity claim will likely survive because the Italian guards were acting in their official capacity and state practice is such that “immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions.”

Despite the presence of concurrent jurisdiction, Italy will most likely have the ultimate responsibility for deciding whether or not to compensate the victims of the Indian fishermen’s families or punish its military personnel for its actions. Regardless of the ultimate outcome, the investigation must be transparent, as the question of liability is ultimately a factual one requiring the two competing stories of the incident to be reconciled. If such reconciliation reveals the case of mistaken identity described in my previous post to be true, the victims’ families should be compensated and the guards punished for their hasty and improper use of force.

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University of Denver Sturm College of Law