Academic journal article Texas International Law Journal

"State Sponsors of Terrorism" Is a Question, Not a Answer: The Terrorism Amendment to the FSIA Makes Less Sense Now Than It Did before 9/11

Academic journal article Texas International Law Journal

"State Sponsors of Terrorism" Is a Question, Not a Answer: The Terrorism Amendment to the FSIA Makes Less Sense Now Than It Did before 9/11

Article excerpt


"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."1

The "State Sponsors of Terrorism" exception to sovereign immunity was an illconceived solution to very real problems: ending terrorism and compensating its American victims. In dealing with the latter it placed the burden of deciding the proper compensation of victims in the hands of the courts and thereby made the former more difficult to achieve. This paper argues that the flaws inherent in the terrorism exception before September 11, 2001, were not minimized by the events of that date. Rather, they were magnified and exposed.2 Perhaps the most obvious flaw in the exception is that the primary sponsor of the terrorists was not even denominated a "State Sponsor of Terrorism" at the time of the attack.3 There are many other flaws. IMAGE FORMULA169

Inherent in the term "state sponsors of terrorism" are three questions, none of which are as easy as they appear at first blush: (1) What is a "state"? (2) Who is a "sponsor"? and (3) What is "terrorism"? There are many additional questions. What quantum of support characterizes one as a state sponsor? Once a state has become a state sponsor of terrorism, how quickly can that state fall off the list, or what good deeds can get that state off the list? Must the terrorism that the state sponsors be directed against the United States? Who belongs on the list today? Who decides who belongs on the list? Are state sponsors of terrorism entitled to constitutional protections such as Due Process?4

As a final introductory note, if U.S. courts declare that, as a matter of international law, a U.S. court has jurisdiction over a sovereign state because the U.S. executive branch has declared it a state sponsor of terrorism, then only two results can logically flow from that decision. First, only the United States can gain jurisdiction over state sponsors of terrorism. Of course, that conclusion can only be justified by the threat of pure force: America will exercise domestic jurisdiction over foreign sovereigns whenever it chooses because it can, as the world's only remaining "superpower," exercise domestic jurisdiction over foreign sovereigns. The only other alternative, and the only one both logical and "fair," is that any nation's domestic courts can appropriately exercise jurisdiction over a foreign state-including the United States-that it considers a state sponsor of terrorism. Since there are many states that would consider the United States a state sponsor of terrorism, the United States should expect to be haled into diverse foreign domestic courts by victims of "terrorists" funded and supplied by the United States, and should, collaterally, expect to see its foreign assets attached to satisfy judgments.5 In fact, Iran has passed legislation allowing Iranian victims of United States "interference" to sue the United States in Iranian courts.6 IMAGE FORMULA170


A. Sovereign Immunity, Pre-FSIA

The classic theory of sovereign immunity7 holds that states are all equal sovereigns and one state cannot exercise jurisdiction over another state or its instrumentalities in its domestic courts.8 The theory was first articulated in the United States by Chief Justice Marshall in The Schooner Exchange v. M'Faddon.9 The theory became less workable as states began engaging in greater and greater volumes of commercial activity.10 The Supreme Court began deferring the question of immunity to the executive branch,11 which in turn responded with the "Tate Letter" and affirmed that the State Department would thereafter apply a restrictive form of sovereign immunity pursuant to which sovereign immunity would be recognized "with regard to sovereign or public acts (jure imperil) of state, but not with respect to private acts (juri gestionis). …

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