ECFA’s Statement on the American Act of Justice Against the Sponsors of Terrorism (JASTA)
The Egyptian Council for Foreign Affairs (ECFA) followed with a great concern the legal and political implications of the U.S. Act (Justice Against Sponsors of Terrorism “JASTA”) which was vetoed by President Obama on 23rd September 2016. However, the United States’ Congress has over – ruled the veto on 28 September 2016 with an overwhelming majority. As a result, JASTA entered into force in the territory of the United States and beyond.
ECFA considers that the enactment of JASTA beyond the U.S. territory would lead to various legal implications, especially to the following:
JASTA violates the principles of the Charter of the United Nations as stipulated in its Chapter 1. It contradicts the principles of the Public International Law with regard to the sovereign immunity of States. The sovereign equality of all States members of the United Nations is also enshrined in the UN principles according to the provisions of article 2 of the Charter.
It is an unequivocal legal rule that national laws are enforceable only within the relevant State borders. Such laws are not applicable or enforceable beyond the national borders of each State. Hence, JASTA provisions violate the principle of the non – extra – territoriality of national laws.
JASTA violates the widely accepted legal principle of the non- retro – activity of national laws, with regard to acts committed prior to the date when the laws are issued. This rule is widely accepted in conformity with the 1969 Vienna Convention of the law of Treaties.
JASTA raises the responsibility of the States regarding acts committed by its nationals of natural persons residing abroad, whether the residence is permanent or temporary. A problem will arise in case they receive instructions from their governments to commit illegal acts on the territories of other States in undercover operations.
JASTA raises problems in relation to the application of the provisions of Private International Law, in case of multiple nationalities, conflict of applicable laws and conflict of the jurisdiction of courts belonging to several countries; the country of the original nationality and country of residence.
JASTA would equally raise legal problems in relation to the activities committed by companies that operate in the territories of several States. This would also involve the responsibility of transnational corporations (TNCs), some of which have influence that goes beyond the authority of some States.
Although JASTA does not specifically mention the government of Saudi Arabia, in relation to the September 11 tragedy, it may involve the responsibility of the Saudi government with regard to acts committed by its nationals, during the events of September 11 attacks, since 15 Saudi nationals have been accused in relation to these attacks. This may lead to the possibility of issuing verdicts and / or sanctions against Saudi government assets in the United States.
In view of Egypt’s historic commitment to the principles of the International law, as an important legal prerequisite in ensuring international peace and security, and since Egypt was among the founders of the United Nations, ECFA underscores the importance of Egypt’s solidarity with Saudi Arabia and other States in rejecting JASTA on the basis of the above mentioned considerations.
For the reasons mentioned above, ECFA recommends the following:
Rejecting JASTA and showing the need of solidarity with Saudi Arabia on the basis of the above mentioned legal considerations;
Provoking the issue in the United Nations General Assembly, in coordination with other States, to be considered in the Second Committee (Economic Affairs) and the Sixth Committee (Legal Affairs), with the view of adopting a resolution by the General Assembly condemning JASTA .That initiative requires an active diplomatic campaign with the States of the Non- Aligned Movement (NAM), G77 and China and other friendly countries;
In case of divergence of views, the General Assembly may be requested to adopt a resolution seeking an Advisory Opinion of the International Court of Justice (ICJ).
Raising the issue in the Human Right Council in Geneva to adopt a resolution to condemn (JASTA) for the same reasons and requesting the U.S. to repeal the said law;
It is advisable that national parliaments should not adopt similar retaliatory laws to JASTA because in this case all arguments against the American Act will collapse and will be null and void.