On June 27, 2023, Iran threw down the gauntlet and sued Canada earlier than the International Court of Justice (“ICJ”). The crux of Iran’s Application to the Court focuses on Canada’s designation of Iran as a state sponsor of terrorism, in addition to laws permitting personal plaintiffs to sue Iran in Canadian courts for terrorism-related accidents—all of which, Iran argues, violates customary worldwide regulation.
The case is the newest Iranian try to problem the so-called terrorism exception to international sovereign immunity. And whereas it’s putatively suing Canada, Iran’s primary goal is probably going the United States, which has created a non-public terrorism litigation regime that has each disproportionately focused Iran, its companies, and instrumentalities and likewise impressed the Canadian regulation. Assuming Iran’s claims make it to the deserves stage, we’re prone to get the primary definitive assertion from a world tribunal as as to if the terrorism exception to international sovereign immunity violates customary worldwide regulation.
This piece sketches out a few of the points raised by Iran’s Application to the Court, together with attainable responses from Canada and Iran’s possible motivations for bringing go well with.
The Terrorism Exception to Sovereign Immunity
In its June 27 Application to the Court, Iran argues {that a} “sequence of legislative, government, and judicial measures adopted by Canada towards Iran and its property since 2012” violates its sovereign immunity—by way of each jurisdiction and enforcement—below customary worldwide regulation. The Justice for Victims of Terrorism Act (“JVTA”) is on the coronary heart of those claims. The JVTA was handed by the Canadian authorities in 2012 and amends Canada’s State Immunity Act—which governs the immunity of international sovereigns in Canadian courts—so as to add an exception to immunity for terrorist exercise.
Under the JVTA, any one who has been injured because of terrorist exercise wherever on the planet can deliver a civil go well with in Canadian courts, so long as their accidents occurred on or after January 1, 1985 and there’s both a “actual or substantial connection” to Canada or the case includes plaintiffs who’re Canadian residents or everlasting residents. Importantly, plaintiffs can solely use the JVTA towards international states or entities designated as terrorists by the Canadian authorities. As of this writing Iran is one in every of solely two states Canada has designated as a state sponsor of terrorism. Notably, the JVTA additionally accommodates a provision requiring Canadian courts to acknowledge terrorism-related judgements issued by courts in different nations, so long as these choices meet the popularity standards below the JVTA and different related Canadian legal guidelines. Finally, pursuant to the State Immunity Act, plaintiffs holding judgements towards state sponsors of terrorism can execute towards the property of designated state sponsors of terrorism, topic to sure exceptions.
Canada just isn’t the one state to embrace a terrorism exception to international sovereign immunity. In reality, the United States was the primary state to create a terrorism exception to its sovereign immunity statute—often known as the Foreign Sovereign Immunities Act (“FSIA”). Indeed, the JVPA seems to be modeled after the FSIA’s terrorism exception. Together, Canada and the United States are the one two nations with laws recognizing a terrorism exception to international sovereign immunity.
And this brings us to the crux of Iran’s declare earlier than the ICJ—specifically, that the terrorism exception violates customary worldwide regulation, one of many main sources of worldwide regulation. To qualify as a customary worldwide regulation, a rule should fulfill a comparatively excessive bar. Specifically, it should be persistently and generally practiced by states (generally known as “state observe”) out of a way of authorized obligation (also called opinio juris). While state observe doesn’t require all states or a majority of states adhere with good consistency to a specific rule, the observe does should be widespread and identifiable. As for opinio juris, it requires states act out of a subjective perception they’re below a authorized—versus a political or diplomatic—obligation to take action, one thing which is notoriously tough to ascertain.
Iran’s Customary International Law Claim
In figuring out whether or not Iran can in the end prevail on its claims, there’s a query as to what Iran wants to ascertain. In explicit, does it want to indicate that the terrorism exception just isn’t acknowledged as an exception to sovereign immunity below customary worldwide regulation or should it exhibit that customary worldwide regulation affirmatively embraces immunity for international sovereigns accused of partaking in terrorist acts?
The distinction is essential. Under the primary method, Iran arguably should present there isn’t any widespread state observe or opinio juris embracing such an exception. Under the second method, Iran would wish to level to state observe and opinio juris affirmatively embracing sovereign immunity for terrorist exercise. The latter is arguably a heavier raise.
So which is the appropriate method? Some have beforehand argued in favor of the second view, although they’ve neither acknowledged the primary method nor defined why the second method is the right one. In its most up-to-date case on international sovereign immunity—the Jurisdictional Immunities case introduced by Germany towards Italy—the ICJ really engaged in each kinds of evaluation, although it additionally did so inconsistently and with no clear rationale as to why each approaches had been required.
In my view, present international sovereign immunity regulation, as practiced by most states, suggests the primary method—specifically, demonstrating that the terrorism exception just isn’t a acknowledged exception below customary worldwide regulation—is all that’s needed.
As mirrored within the FSIA, Canada’s State Immunity Act, the UN Convention on Jurisdictional Immunities of States and Their Property, and the European Convention on State Immunity, the constant and widespread observe of states, in addition to their subjective sense of authorized obligation, seems to view a international sovereign as immune from (no less than civil) go well with in one other state’s courts until its actions fall below a acknowledged exception to immunity. In different phrases, in an effort to efficiently sue a international sovereign, customary worldwide regulation creates a presumption of immunity until plaintiffs exhibit their case suits right into a acknowledged exception to immunity. Indeed, previous to the terrorism exception’s passage, U.S. litigants struggled to efficiently sue international states for terrorism-related claims as a result of there was no FSIA exception that existed for these instances on the time.
Under this primary method, Iran must set up that the terrorism exception violates customary worldwide regulation as a result of it’s not a widely known exception to international sovereign immunity embraced by states out of a way of authorized obligation. Given the exception’s extremely restricted adoption by states, Iran can credibly argue that the terrorism exception just isn’t a customary worldwide regulation rule. This place is arguably additional bolstered by the character of the American and Canadian legal guidelines themselves. With the exception of a more recent terrorism-related carve out to the FSIA handed in 2016, the Canadian and older U.S. terrorism provisions don’t apply to all nations partaking in terrorism. Instead, they will solely be used towards states particularly designated by the Canadian and U.S. governments as sponsors of terrorism. Since these designations are sometimes extremely political and selective, Iran might be able to argue that such legal guidelines are themselves inconsistently utilized and never the byproduct of opinio juris.
Iran’s place may additionally be strengthened by the ICJ’s choice within the Jurisdictional Immunities case. Although the Court just isn’t typically sure by its earlier opinions, in that case the ICJ concluded there was no customary worldwide regulation exception to international sovereign immunity both for critical breaches of human rights or humanitarian regulation, or for jus cogens violations. While exploring this argument in depth is past the restrictions of the evaluation right here, Iran has flagged it in its Application and will, certainly, have a powerful case for doing so.
Even if the primary method doesn’t apply and Iran has to ascertain, as an alternative, that customary worldwide regulation affirmatively embraces sovereign immunity for terrorism, it could nonetheless prevail. On state observe, Iran can underscore that in over twenty-five years for the reason that first terrorism exception was handed into U.S. home regulation, the overwhelming majority of states have avoided adopting related provisions. On the difficulty of opinio juris, Iran can level to numerous items of proof to bolster its place. These embrace the failure of many designated state sponsors of terrorism to look earlier than U.S. or Canadian courts to defend themselves towards terrorism claims partly as a result of they view these instances as legally illegitimate. Iran can cite to laws handed by a few of these states retaliating towards the United States for recognizing the exception and violating their sovereign immunity. Also on the difficulty of opinio juris, Iran can level to distinguished critiques of the terrorism exception from the EU, Saudi Arabia, Russia, and the Netherlands, amongst others. In this regard, Iran can and will spotlight the U.S. Executive department’s personal opposition to each FSIA terrorism exceptions previous to their enactment, based mostly on the view that these exceptions violate worldwide regulation on sovereign immunity. Finally, Iran can reference judicial choices in different nations, comparable to Luxembourg, the place courts have refused to implement judgments issued below the FSIA’s terrorism exception due to the exception’s purported inconsistency with customary worldwide regulation.
Compulsory Jurisdiction, Countermeasures, and Security Council Resolutions
Though they’re unlikely to succeed, there are three potential obstacles to Iran’s go well with which can be price addressing at this stage.
ICJ Compulsory Jurisdiction
The first impediment pertains to the ICJ’s obligatory jurisdiction clause. In its Application, Iran has invoked this clause as the premise for the Court’s jurisdiction. Though known as the “World Court,” the ICJ doesn’t have jurisdiction over each declare that arises between states. Instead, its jurisdiction is circumscribed and contingent upon state consent. One approach states specific this consent is by acceding to the ICJ’s obligatory jurisdiction clause. Under that clause, states settle for the ICJ’s jurisdiction, ipso facto, with respect to different states which have additionally accepted the clause.
This raises two potential points in the case of Iran’s go well with: reciprocity and the main points of Canada’s obligatory jurisdiction acceptance. On the primary concern, reciprocity is essential to any go well with based mostly on obligatory jurisdiction. As the ICJ has beforehand held, reciprocity successfully signifies that all litigants have filed declarations accepting the Court’s obligatory jurisdiction on the date the petitioner’s software is filed and that these declarations cowl the subject-matter of the go well with. Reciprocity doesn’t, nonetheless, require that the phrases of every state’s declarations be an identical. As utilized right here, the declarations of Iran and Canada meet these phrases, as of the date of Iran’s Application.
On the second concern, Canada has appended a number of reservations to its acceptance of the Court’s obligatory jurisdiction. Two appear most related right here. First, Canada has excluded “disputes with regard to questions which by worldwide regulation fall completely throughout the jurisdiction of Canada.” This reservation is unlikely to defeat the Court’s jurisdiction on this case. As the ICJ has held, “although the State possesses sovereignty over its personal territory and there flows from that sovereignty the jurisdiction of the State over occasions and individuals inside that territory,” sovereign immunity regulation “occupies an essential place in worldwide regulation and worldwide relations” and “is without doubt one of the basic rules of the worldwide authorized order.” As this language suggests, international sovereign immunity just isn’t a physique of worldwide regulation falling completely throughout the home jurisdiction of Canada, as required by its reservation.
Canada’s declaration additionally states that it “reserves the appropriate at any time… and with impact as from the second of such notification, both so as to add to, amend or withdraw any of the foregoing reservations….” Even if Canada had been to invoke this provision in response to Iran’s go well with, it will not retroactively apply to defeat jurisdiction on this case.
Countermeasures
The second attainable, although possible unsuccessful, impediment to Iran’s go well with pertains to countermeasures. Countermeasures are actions which can be in any other case illegal below worldwide regulation, however are permitted, below sure circumstances, to be taken by states towards different nations which have violated their worldwide authorized rights. In this case, Canada may argue that the JVTA is a lawful countermeasure towards Iran. Without getting too into the weeds, legitimate countermeasures should adjust to sure authorized necessities, together with being attentive to accidents inflicted immediately or not directly towards the state itself and proportional to the authorized breach suffered. As others have argued, the terrorism exception to sovereign immunity is unlikely to fulfill these and different necessities for legitimate countermeasures.
UN Security Council Resolution
The closing attainable impediment to Iran’s declare pertains to a UN Security Council decision. Security Council resolutions are binding on all UN members and trump most different worldwide legal guidelines with which they battle, together with customary worldwide regulation. Here, Canada might argue that, even when the terrorism exception violates customary worldwide regulation, it’s mandated by Security Council Resolution 1373, which is cited within the JVTA’s preamble. Passed shortly after 9/11, Resolution 1373 calls upon states to take varied measures to suppress and fight terrorism. In this regard, the decision lists varied particular measures states ought to take. None of the required measures, nonetheless, explicitly embrace permitting personal events to sue international states for terrorism-related accidents. And whereas Canada could declare {that a} terrorism exception is however per different specified actions—like “cooperat[ing] [with other states]… to take motion towards perpetrators of [terrorist] acts”—in addition to the decision’s object and function—together with its insistence on the necessity to “fight [terrorism] by all means”—these arguments are removed from a slam dunk.
Iran’s Motivations for Bringing Suit: The Americans
While Canada is the putative goal of the ICJ go well with, Iran is sort of clearly additionally going after the FSIA’s terrorism exception. Indeed, Iran tried to do exactly this a number of years in the past in an ICJ case introduced towards the United States, the Certain Iranian Assets case. In that go well with, the Court didn’t attain the deserves of Iran’s argument that the FSIA’s terrorism exception violated customary worldwide regulation, concluding it didn’t have jurisdiction to think about the declare.
For a number of causes, the FSIA’s terrorism exception looms massive over Iran’s present ICJ case. FSIA terrorism litigants had been, for instance, on the forefront of lobbying for the JVTA. As famous in Iran’s Application, these litigants have since used the JVTA and Canadian courts to implement their FSIA judgments towards Iran. Indeed, as one Canadian lawyer has noticed, “many U.S. victims of Iran-sponsored terrorist assaults have flocked to Canada with U.S. court docket judgments in hand to have them acknowledged by Canadian courts in an effort to implement them on property of Iran in Canada.”
Iran is now preventing again towards these practices—an unsurprising transfer given the large sums U.S. courts have entered in default judgments towards the nation typically on extremely doubtful claims. If Iran succeeds, it might serve to hamstring these plaintiffs—who already face an uphill battle in implementing their judgments—and forestall them from attaching the property of Iran and different state-sponsors of terrorism in each Canadian and different international courts, as earlier ICJ case regulation suggests.
IMAGE: THE HAGUE, NETHERLANDS: Judges of the International Court of Justice.
Filed below:
Canada, Customary International Law, Foreign Sovereign Immunities Act (FSIA), international sovereign immunity, International Court of Justice (ICJ), Iran, Justice Against Sponsors of Terrorism Act (JASTA), Justice for Victims of Terrorism Act (JVTA), Litigation, state sponsor of terrorism, terrorism