Jurisdictional Immunities, all over Again?

ICJ proceedings instituted by Iran against Canada (27 June 2023): Some Observations on Jurisdiction and Merits

Does State-backed terrorism enjoy State immunity from domestic jurisdiction or enforcement? This controversial question might finally be answered by the ICJ. Iran had already invoked its State immunities in Certain Iranian Assets, claiming that US court proceedings and enforcement measures pertaining to charges of terrorism against Iran violated state immunities. However, the ICJ sidestepped the question by ruling that its jurisdiction, based on the 1955 US-Iranian Treaty of Amity, did not cover issues of customary international law on state immunity.

In a renewed attempt to get an answer on the merits, Iran is now challenging similar legislation and jurisprudence in proceedings instituted on 27 June 2023 against Canada. This was preceded by an optional clause declaration Iran submitted just one day earlier. Unlike in Iran’s first attempt to bring terrorism-related immunity exceptions to the ICJ, the Court may now actually have jurisdiction (1.), and the prospect of the merits seems promising as well (2.).

Jurisdiction

On jurisdiction, Iran’s application plainly states: “Both Iran and Canada have accepted the compulsory jurisdiction of the Court on 26 June 2023 and 10 May 1994, respectively.” The ICJ’s compulsory jurisdiction (Art. 36 (2) ICJ-Statute, also known as the optional clause) is based on the principle of reciprocity, whereby the Court has jurisdiction over a case to the extent that it is covered by both party’s optional clause declarations.

Canada’s 10 May 1994 optional clause declaration broadly accepts the Court’s jurisdiction for “all disputes arising after the present declaration with regard to situations or facts subsequent to this declaration”. Besides reserving a right to terminate the declaration or modify its reservations, it contains four material reservations, only the third of which might be relevant. It excludes “disputes with regard to questions which by international law fall exclusively within the jurisdiction of Canada”. However, Iran’s claims on State immunity raise questions governed by customary international law, which are not exclusively within Canada’s domestic jurisdiction.

By contrast, Iran’s 25 June 2023 declaration is narrowly confined, essentially accepting the Courts’ jurisdiction only for disputes concerning: “(i) the jurisdictional immunities of the State and State property; (ii) immunity from measures of constraint against State or State property.” Unlike Canada’s declaration, Iran’s includes no temporal restriction to disputes arising after depositing the declaration. Given that Iran’s claims against Canada specifically pertain to issues of immunities (see discussion below), they fall within the scope of both declarations, hence conferring jurisdiction to the ICJ.

Prima vista though, it may appear abusive if a State submits an optional clause declaration and immediately files an application against another State. For the latter State, such proceedings come totally out of the blue. However, such “surprise attacks” are acceptable, as ICJ precedents show. In Right of Passage over Indian Territory, Portugal submitted its optional clause declaration on 19 December 1955 and three days later filed applications against India. In its Judgement of 26 November 1957, the Court held that “a State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. It is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned” (p. 146). Similarly, in Territorial and Maritime Boundary, Cameroon filed its application against Nigeria on 29 March 1994, after submitting an optional clause declaration on 3 March. Again, rejecting Nigeria’s objections, the Court found that it had jurisdiction (para. 118). While some States use “anti-ambush clauses” to prevent such surprises, Canada missed that opportunity.

Canada might still argue that Iran’s approach differs from the precedents. In particular, the limited scope of Iran’s declaration gives the impression that it was tailor-made for the present proceedings – unlike for instance Cameroon’s declaration, which essentially covers “all legal disputes.” Indeed, States usually broadly accept the Court’s jurisdiction, and then attach some reservations. Iran’s declaration turns this logic around. Unusual as this may be, the optional clause system is open to such narrow declarations (see e.g. the declarations by Egypt and Equatorial Guinea). Our preliminary assessment therefore is that the Court has jurisdiction.

Merits

On the substantive side, a judgment on the merits could provide valuable insights into the evolving customary international law regarding State immunity. Iran claims that Canada has violated its immunity from jurisdiction and from enforcement. The arguments primarily revolve around Canada’s so-called “terrorism exception” for immunity.

On 13 March 2012, Canada introduced the exception to its State Immunity Act (SIA). Section 6.1(1) SIA addresses immunity from jurisdiction: “A foreign state that is set out on the list […] is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism […].” Regarding immunity from execution, Section 12(1)(d) SIA provides the corresponding exception. On 7 September 2012, Canada took executive action to place Iran on the list as a state supporter of terrorism. In addition to amending the SIA, Canada passed the Justice for Victims of Terrorism Act (2012), which established a legal basis for filing lawsuits against alleged perpetrators of terrorism. This act also allowed for recognition and enforcement of foreign judgments issued in such cases. Consequently, numerous lawsuits and enforcement procedures were successfully pursued in Canadian courts. For instance, following the downing of a civilian airliner en route between Tehran and Kyiv on 8 January 2020 by the Islamic Revolutionary Guard Corps, the Ontario Superior Court of Justice awarded 107 Million CAD to family members of the deceased, considering it an “act of terrorism”. Additionally, Iran claims that Canadian courts have imposed pre- and post-measures of constraint and recognized and enforced judgments by US courts.

Apart from Canada, the US is the only country that explicitly recognizes a “terrorist exception” to State immunity. By instituting the proceedings, Iran thus indirectly challenges that similar US legislation. The Foreign Sovereign Immunities Act precludes immunity in §1605A (a) (1) “in any case […] in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act […].” Thus, although not legally binding, a judgment could have implications for US legislation or the enforcement of related US court rulings elsewhere.

Exceptions for State immunity for claims concerning serious human rights violations, including terrorist acts, are intensively discussed in international law scholarship. At first glance, it seems counter-intuitive that States involved in and supporting such acts are shielded from (civil-)lawsuits by State immunity. Starting point of the discussion is still the landmark judgment by the ICJ in Jurisdictional Immunities of the State between Germany and Italy on 3 February 2012. Here, the Court explicitly held, that “under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict” (para. 91). The Court denied a normative conflict, since “the rules of State immunity are procedural in character” and “do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful” (para. 93).

However, customary international law is not immune to change. New developments, advocating for exceptions, include the Italian Constitutional Court’s judgment No. 238/2014, the Brazilian Supreme Tribunal Federal’s ruling in the Changri-La-Case or the judgment by the South Korean Seoul Central District court. The Italian judgement led to the resubmission of the dispute between Germany and Italy to the ICJ. Nevertheless, there are also opposing views such as the Luxembourgian District Court’s judgment, which held that customary international law does not entail a “terrorist exception”. This practice cannot be considered sufficiently widespread and representative, let alone consistent. Consequently, the “terrorist exception” could be found to violate customary international law, torpedoing further development of exceptions to immunities in the foreseeable future.

Canada could argue that the denial of immunity constitutes a lawful countermeasure under Art. 22 ARSIWA. It is doubtful, however, if the requirements of the ARSIWA such as notifying the responsible State (Art. 52 (1) (b)) or the temporary nature (Art. 49 (2) and (3)) were fulfilled. (For a deeper discussion, see e.g. here and here.)

Another topical issue is whether executive actions trigger the application of the immunity regime, as they are not necessarily connected to court proceedings. Iran inter alia claims that Canada violated its obligations by “adopting sections 6.1 and 12 (l)(d) of the SIA, and enlisting Iran […] as so-called supporter of terrorism.” These claims pertain to legislative and executive action. An affirmative answer from the Court could have implications for the ongoing debate on whether sanctions by executive action such as asset freezes can violate State immunity (e.g. here, here).

Conclusions

Iran is keeping the ICJ busy as ever. After deciding the Certain Iranian Assets case on the merits on 30 March this year, the Court still has to deal with Iran’s claims against the US in Alleged Violations of the 1955 Treaty of Amity, which also made it to the merits, and now with the Iranian proceedings against Canada. These are exciting times for litigation-minded international lawyers. The increasing interest in going to the ICJ underscores its relevance and may strengthen the international rule of law. At the same time, the Court is facing hard choices, having to deal with the highly politicized question of exceptions from State immunities for charges of terrorism and other grave human rights violations – which may also arise in Germany’s new application against Italy.

However, the fate of Iran’s application against Canada is quite uncertain. Canada, Sweden, Ukraine and the United Kingdom intend to file an ICJ application against Iran over the 8 January 2020 downing of a civilian airliner mentioned above. With these proceedings against each other, Canada and Iran might seek to find a solution outside the courtroom.

Photo: ‘An interior shot of the Peace Palace, the seat of the International Court of Justice, the principal judicial body of the United Nations’ (UN Photo/Andrea Brizzi. 01/01/1993. The Hague, Netherlands. Photo ID 110331).