On 27 June 2023, the Islamic Republic of Iran (“Iran”) filed an application with the International Court of Justice (“ICJ”) in The Hague to resolve a dispute it has with Canada, concerning alleged violations of its immunities (“the Application”).
In its Application, Iran refers to a series of legislative, executive and judicial measures adopted by Canada against Iran and its property since 2012. Iran claims that such measures were implemented in violation of the sovereign jurisdictional immunity and its immunity from execution to which it is entitled under Customary International Law (“CIL”).
The legislative, executive and judicial measures adopted by Canada
The Justice for Victims of Terrorism Act
On 13 March 2012, the Parliament of Canada enacted the Justice for Victims of Terrorism Act (“JVTA”). The JVTA complemented Canada’s existing counter-terrorism measures by providing, inter alia, a private cause of action for claims against alleged perpetrators and supporters of acts of terrorism. This includes any listed foreign State whose immunity has been waived. Under the JVTA, plaintiffs are allowed to seek relief where the loss or damage, in or outside Canada, is suffered as a result of a foreign State’s activities (in the nature of acts punishable under the terrorism offences listed in the Canadian Criminal Code – see Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s. 2, subsection 4(1)).
Additionally, pursuant to section 5, the JVTA mandates Canadian courts to recognise and enforce any foreign judgment in favour of a person that has suffered loss and damage caused by a terrorist act of a foreign State or supported by such State, provided that it is set out in the list of foreign States whose immunities have been lifted, pursuant to subsection 6.1(2) of the State Immunity Act, 1985 (see Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s. 2, section 5).
Following the enactment of the JVTA, Canada amended its State Immunity Act on the same day.
Canada’s Amendment to its State Immunity Act
On 13 March 2012, Canada retroactively amended its State Immunity Act (“SIA”) by adding an exception to immunities conferred to foreign States.
Pursuant to subsections 6.1(1) and 12(1)(d) of the SIA, the immunity from jurisdiction and execution re courts in Canada are waived where a foreign State is set out in the list of foreign States that have supported or support terrorism, in accordance with subsection 6.1(2). Such foreign State will, therefore, not be immune from jurisdiction, execution or attachment in a Canadian court in proceedings against it for its support of terrorism, or its terrorist activities, on or after January 1, 1985 (see State Immunity Act, R.S.C., 1985, c. S-18).
On September 2012, following the adoption of the JTVA and the Amendment to the SIA, Canada added Iran to its list of foreign States supporting terrorism and severed its diplomatic ties with the country (see Canada lists both Iran and Syria as State Supporters of Terrorism, News Release, 7 September 2012).
Since then, a series of such claims against Iran have been adjudicated by Canadian courts. In addition, Canadian courts have also recognised and enforced a number of judgments of US courts that have ruled against Iran or its property.
Iran’s claims
In its Application, Iran argues that “as a sovereign State, [it] is entitled to sovereign immunities from jurisdiction and from enforcement under customary international law. The principle of sovereign immunity, which derives from the fundamental principle of sovereign equality, prohibits private parties from suing another State before the courts of the forum State and from seizing its property” (see Iran’s Application instituting proceedings, 27 June 2023, paragraph 21).
Further, Iran notes the absence of any so-called “terrorist exception” under CIL and contends that the ICJ has “established clearly that there is no limitation upon jurisdictional immunities in the context of cases before domestic courts concerning alleged serious violations of human rights or norms of a jus cogens character under customary international law” (see Iran’s Application instituting proceedings, 27 June 2023, paragraph 22).
As a consequence, Iran requests the ICJ to “adjudge and declare that by failing to respect the immunities of Iran and its property, Canada has violated its international obligations toward Iran” under CIL (see Iran’s Application instituting proceedings, 27 June 2023, paragraph 27). Additionally, Iran requests that Canada ensure that no action be taken based on the legislative, executive and judicial measures at issue and that all judicial decisions rendered in violation of Iran’s immunity be unenforceable and ineffective. Finally, Iran requests that Canada make full reparation, including compensation, to Iran for the violation of its international obligations (see Iran’s Application instituting proceedings, 27 June 2023, paragraph 27).
Canada’s position seems to be in the minority among other Western States. However, it is not the only State to provide for a terrorism exception to foreign States’ immunity. The United States equally promotes a restrictive approach to sovereign immunity where the scope of such immunity is determined by judicial rather than executive authorities. The United States provides for such an exception in the US Foreign Sovereign Immunities Act (see US Foreign Sovereign Immunities Act, 28 U.S. Code § 1605A).
Additionally, Italy appears also to follow this exception to sovereign immunity, although it did not incorporate it in its legislation. Thus, in October 2015, the Italian Corte di Cassazione formally accepted the legality of the terrorism exception to foreign sovereign immunity by way of an exequatur procedure for two US court judgments which ruled that Iran was liable for the terrorist acts perpetrated by the Hamas organisation in Israel and, therefore, liable to pay damages (see Corte Suprema di Cassazione (Sezioni Unite Civili), Flatow and others v. Iran and Ministry of Intelligence and Security of Iran, Judgment No. 21946, 28 October 2015, paragraph 4; Suprema di Cassazione (Sezioni Unite Civili), Eisenfeld and others v. Iran and Ministry of Intelligence and Security of Iran, Judgment No. 21947, 28 October 2015).
This position was reaffirmed in Order No. 39391/2021, in which the Italian Corte di Cassazione stated that “the immunity of the foreign state is not a right but a prerogative which cannot be assured when it concerns delicta imperii, that is crimes perpetrated in violation of international jus cogens norms, as such infringing universal values that transcend the interests of the particular state communities” (Corte Suprema di Cassazione (Sezione i Civile), Angela Stergiopoulos et al. v. Islamic Republic of Iran, Central Bank of Iran and other Iranian Public Agencies, Order No. 39391, 10 December 2021, paragraph X).
