US anti-terror legislation risks eroding international sovereignty

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Congress overturned President Barack Obama's veto on the legislation. The EU has also expressed concerns about the controversial bill. [Ververidis Vasilis/ Shutterstock]

Anti-terrorism legislation in the United States risks undermining the sovereignty of other countries, despite opposition by the current president, legal experts and numerous international governments including the EU, writes Abdulrahman S. Alahmed.

Abdulrahman S. Alahmed is Saudi Arabia’s ambassador to Belgium, Luxembourg and head of his country’s mission to the EU.

On 28 September, the US Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) in a bipartisan vote, in spite of vigorous protests from President Obama, US national security officials and experts, the EU and numerous foreign governments and business leaders. President Obama used his prerogative to veto the bill, but for the first time in his administration, Congress overrode the presidential veto.

The bill, originally conceived in the context of the 9/11 terrorist attacks against the United States, horrendous acts that our kingdom has firmly condemned on several occasions, opens the door to lawsuits against any country, and ultimately its personnel, and fails to foresee the unintended consequence: the undermining of the global legal order and international relations.

JASTA effectively strips other countries of their sovereign immunity in the US, exposing them to private lawsuits in American courtrooms. As such, the passing of JASTA is a global issue that should be of concern to each and every country due to its fundamental erosion of the basic principles of international law.

The direct results of the bill are already becoming clear. The controversial legislation will undoubtedly put a burden on bilateral relations between states as well as on the international order.

Rather than relying on national security, foreign-policy and intelligence professionals to determine whether a state sponsors terrorism, JASTA effectively hands over this important responsibility to private litigants, juries consisting of American citizens and US courts who could mount cases with threadbare evidence or accusations.

We must ask ourselves whether we are willing to open up this Pandora’s Box at the risk of destabilising international cooperation in the fight against terrorism.

This is not, as might be believed, an isolated view unique to Saudi Arabia. Broad support has emerged in favour of amending JASTA to address harmful “unforeseen consequences”. A multitude of voices in the international community, from the Arab League, the OIC, and other international organisations representing nearly 90 countries have spoken out against JASTA.

They warn against the erosion of sovereign immunity and decry the bill as potentially damaging mutual trust between states and adversely affecting all areas of international cooperation.

In October, the European Parliamentary Research Service published an analytical briefing underscoring several critical points concerning JASTA’s unforeseen consequences for EU member States.

With a view to restricting the scope of the bill and its far-reaching unintended consequences, the EU and its member states should consider taking diplomatic and parliamentary actions to persuade the standing Congress to amend or repeal the bill.

More specifically, the EU, which already expressed its reserve about the bill before its adoption, could urge the US Congress to restore the operative Foreign Sovereign Immunities Act provision that JASTA withdrew.

The timescale for the current Congress to make such change is tight, and without further authoritative calls for change, the bill continues to jeopardise the global legal order and international relations.

It is our hope that wisdom will prevail and that Congress will take the necessary steps to correct this legislation to mitigate its scope and avoid the serious unintended consequences that may ensue.

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