Further Thoughts About Terrorism Exceptions and State Immunity

 

“ICJ Delivers Verdict in Case of Equatorial Guinea v. France”

by United Nations Photo is licensed

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As regular readers know, Iran has sued Canada at the International Court of Justice (ICJ), arguing that the terrorism exceptions in Canada’s State Immunities Act (SIA) violate customary international law. The United States also has terrorism exceptions in its Foreign Sovereign Immunities Act (FSIA) for actions against state sponsors of terrorism and for actions based on international terrorism in the United States.

Iran’s suit has sparked a lively debate about terrorism exceptions and international law. Maryam Jamshidi began the conversation, arguing that the Canadian and U.S. exceptions violate customary international law because state practice recognizing exceptions to state immunity for terrorism is limited to these two countries. I disagreed, raising two main points: (1) that acts of terrorism are not sovereign acts (acta jure imperii) entitled to immunity under the restrictive theory of state immunity; and (2) that the proper baseline, even for sovereign acts, is one of no immunity so that Iran must show a general and consistent practice of states (and opinio juris) recognizing state immunity for acts of terrorism.

Others have taken issue with each point. Kelly Adams noted that at least some acts of terrorism may be considered sovereign acts entitled to immunity under the restrictive theory. Keshav Somani disagree with both points. As to the first, he argued that state-sponsored terrorism is necessarily sovereign because it can only be done by states. As to the second, he disagreed with my reading of the International Court of Justice’s (ICJ) decision in Jurisdictional Immunities (2012), arguing that the ICJ adopted a baseline of immunity in that case.

In this post I respond to Adams and Somani. I accept Adams’s point that there may be acts of terrorism that constitute sovereign acts, but I disagree with Somani that all state-sponsored terrorism qualifies for such categorization. I also disagree with Somani that the baseline for state immunity under customary international law is that states enjoy immunity unless general and consistent state practice recognizes an exception. Regardless of how one reads the judgment in Jurisdictional Immunities, a baseline of immunity is inconsistent with how the law of state immunity has developed and particularly with the adoption of the restrictive theory during the twentieth century.

Is Terrorism a Sovereign Act?

It is common ground that under the restrictive theory of foreign state immunity, adopted by most countries, a state is generally entitled to immunity from suit based on its sovereign acts (acta jure imperii) but not from suit based on its non-sovereign acts (acta jure gestionis). In my earlier post, I argued that terrorism and support for terrorism are not sovereign acts because they are not, in James Crawford’s words, “unique to the state.” Non-state actors can and do engage in terrorism and support for terrorism.

Not All State-Sponsored Terrorism is a Sovereign Act

Relying on UK court decisions, Somani responds that “by definition, ‘state-sponsored terrorism’ can only be performed by a State, and a private citizen cannot provide support for terrorism that is ‘state-sponsored.’” But this argument proves too much. It undermines the restrictive theory by classifying everything a state does as a sovereign act simply because a state does it.

For example, under this logic, issuing of government bonds must be considered a sovereign act because only states can issue government bonds. Yet the U.S. Supreme Court held in Republic of Argentina v. Weltover (1992) that issuing government bonds is a commercial activity because private parties can also issue bonds. To my knowledge, no one thinks that Weltover violates the restrictive theory of state immunity.

International law allows states to determine the character of an act as sovereign or non-sovereign by looking to the nature of the act. More specifically, an act need not be considered a sovereign act if it one in which non-state actors can engage. That is certainly true of terrorism and support of terrorism.

But Perhaps Some Is

Adams, on the other hand, argues that some acts of terrorism may be considered sovereign acts while others are not. The downing of Ukraine International Airlines Flight 752 with missiles fired by Iran’s Islamic Revolutionary Guard Corps in January 2020, for example, might qualify as acta jure imperii because “the act itself was of a military nature, and therefore governmental.” But Adams suggests that at least some of Iran’s support for the 9/11 attacks would not qualify as governmental. “Analysis of the specific allegations,” she writes, “is required to determine whether the terrorism exception in this case violated customary international law.”

Adams’s distinction is important. An act that might otherwise be considered sovereign, such as a use of force by the military, does not necessarily lose that character simply because it is also an act of terrorism. But by the same token an act of terrorism that a non-state actor could perform does not become a sovereign act simply because it is done by a state.

The Baseline Question

Even if terrorism qualifies as a sovereign act, immunity does not necessarily follow. Whether it does depends on the baseline from which one evaluates state practice and opinio juris. One approach assumes a prohibitive rule (immunity) and requires state practice and opinio juris to create an exception. Another approach assumes a permissive rule (no immunity) and requires state practice and opinio juris to establish immunity.

State practice with respect to immunity from terrorism is mixed. Only Canada and the United States have terrorism exceptions in their state immunity laws, but there are also few states that have affirmatively granted immunity from suit based on acts of terrorism either by legislation or court decision. If the analysis begins from a baseline of immunity, there is probably insufficient state practice to establish an exception. By the same measure, if the analysis begins from a baseline of no immunity, there is probably insufficient state practice to establish immunity.

The Relevance of Domestic Legislation

Somani argues that the proper baseline is immunity from suit. He points out that domestic legislation codifying the rules of state immunity generally begins with a broad grant of immunity followed by exceptions. He cites national court decisions to the same effect but (except for the Belgian case) these decisions simply reflect domestic legislation. The U.S. FSIA follows this pattern, providing in section 1604 that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” China’s new Foreign State Immunity Law has the same basic structure.

The question Somani overlooks is whether this state practice is accompanied by opinio juris. My understanding is that domestic laws follow this pattern because it is easier to specify the instances in which a state is not immune from suit than to specify the instances in which it is. In other words, this pattern reflects drafting convenience rather than legal obligation. Without opinio juris such practice cannot establish customary international law.

The ICJ’s Approach

Somani also claims that the ICJ in Jurisdictional Immunities recognized a baseline of immunity for acta jure imperii. Specifically, he quotes paragraph 56, in which the Court said: “whether in claiming immunity for themselves or according it to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity.”

When one reads this paragraph in context, one sees that with this language the ICJ was not setting forth a general rule concerning immunity. Instead, the Court was trying to establish that the rules of immunity are rules of international law rather than international comity. The Court’s point in this passage was not that “States generally proceed on the basis that there is a right to immunity under international law” (emphasis added). Rather, the Court’s point was that “States generally proceed on the basis that there is a right to immunity under international law” (emphasis added).

Indeed, in the very next paragraph, the ICJ pointed out that questions of state immunity reveal a tension between two fundamental principles of the international legal order: sovereign equality and territorial sovereignty. “Exceptions to the immunity of the State represent a departure from the principle of sovereign equality,” the Court noted, but immunity represents “a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.” It is hard to read this part of the opinion as taking a firm stand on the substance of customary international law.

In my prior post, I argued that Jurisdictional Immunities adopted a baseline of no immunity later in its opinion. The ICJ did not assume that Germany would be immune from suit unless it found a settled practice and opinio juris recognizing an exception. Instead, the ICJ looked for and found state practice and opinio juris affirmatively recognizing immunity for the acts of armed forces during armed conflict.

Somani replies that the ICJ took this approach only because Italy argued strongly that it had jurisdiction over Germany under the so-called “territorial tort exception” because the acts of German armed forces occurred in Italy. It was only because of this exception, in other words, that the baseline shifted to one of no immunity, requiring the Court to analyze state practice specifically with regard to the immunity of armed forces during armed conflict. This is a fair point. But it does not show that the starting point for questions of state immunity is to assume that states are immune from suit unless there is a general and consistent practice of states recognizing an exception. Whatever the reason, that is certainly not what the ICJ did in Jurisdictional Immunities.

State Practice Adopting the Restrictive Theory

In my prior post, I also argued for a no-immunity baseline based on the transition during the twentieth century from a theory of absolute immunity to a theory of restrictive immunity. I wrote:

If customary international law starts from a baseline of immunity, a restrictive approach would violate international law until there was sufficient practice to show that it was settled practice. If, on the other hand, customary international law starts from a baseline of non-immunity, then the restrictive approach would be permissible as soon as there was sufficient practice to show that the absolute theory was no longer settled.

I went on to note that the United States did not consider itself to be in violation of international law when it became only the eighth country to adopt the restrictive theory in 1952. Neither did the United Kingdom when it became the nineteenth country to do so in 1978. “Both the United States and the United Kingdom (as well as other countries making similar choices) viewed the restrictive theory as an option that international law permitted them to take. This historical evidence is consistent only with a baseline of non-immunity.” Somani offered no rebuttal.

I do not mean to suggest, as The Lotus Case (1927) once did, that customary international law always begins from permissive baseline and requires a general and consistent practice of states plus opinio juris to establish a prohibition. As I have written elsewhere, in each area of customary international law, the proper baseline itself depends on state practice. My point here is simply that state practice on state immunity establishes a no-immunity baseline, even for sovereign acts.

Conclusion

In conclusion, I note that my two arguments for the consistency of terrorism exceptions with customary international law are independent. Iran’s claims against Canada must fail if either argument persuades. If acts of terrorism (or at least some of them) are not sovereign acts because non-state actors can also engage in them, then under the restrictive theory Iran is not entitled to immunity from suit based on such acts. Alternatively, if the proper baseline is no immunity, then Iran is not entitled to immunity from suit for acts of terrorism because it cannot show a general and consistent practice of states plus opinio juris recognizing immunity for such acts.

I appreciate the important contributions that Ms. Adams and Mr. Somani have made to this debate. Each of them makes fair points. But I remain convinced that the terrorism exceptions to state immunity adopted by Canada and the United States do not violate customary international law. Time will tell if the ICJ agrees.