International relations have been governed by the concept of sovereign immunity of states which prevents litigation against them in foreign courts. This concept is based on the doctrine of act of state which grants immunity from wrongdoing to the state for any alleged breach of law. When pleaded in court, judges may deny the private party’s cause of action against the invoking state. The existence of sovereign immunity places an absolute bar on judicial review in the domestic courts and, in the United States, is regarded as part of the doctrine of separation of powers. There are statutory exceptions to the law of sovereign immunity when the Supreme Court has review powers over external acts that give rise to a cause of action in U.S. courts for breaches of duty in another country.
The protection for the state under both state immunity and “act of state” doctrines protects individual states and their institutions from scrutiny where they act unlawfully either together or in common with other states and impinges on the ability of private individuals to secure redress. In the common law traditions, the level of restriction on the traditional absolute theory of sovereign immunity has now become the subject of national legislation. The United States was the first to enact a law in the form of the Foreign Sovereign Immunities Act of 1976, followed by State Immunity Act 1978 in the United Kingdom, and in Canada the promulgation of the Foreign State Immunities Act 1985.
The concept of state immunity is based on the common law process of legal precedents developed by the courts. In England, the doctrine of “act of state” is based on judicial restraint rather than constitutional competence. The case for application of the doctrine is subject to close scrutiny and it has been qualified by decisions in the courts that have recognized that non-justiciability is not an absolute principle. For a general description of the history and development of the act of state doctrine in the United Kingdom,
One constitutional safeguard is that certain cases have been designated as involving “political questions.” Such cases are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution which only allows judicial intervention in such circumstances. U.S. Constitution Article III, Section 2 states: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;- -to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. Judiciary Act of 1789, ch. 20, §9(b), 1 Stat. 73, 77 (currently, with some changes, 28 U.S.C. §1350 (1982)).
In the United States, the act of state doctrine excludes jurisdiction in cases that involve “political questions”. This is because the separation of powers doctrine vests the executive with its own domain of authority. A right of challenge may exist where a private right of a citizen has been infringed, when the courts will, in principle, exercise their powers of judicial review. In the United States, the constitution has been interpreted to provide a balance of powers that can enquire into the legality of the executive’s actions. These can be challenged and a body required to submit to a writ of mandamus. The rule was stated by the Supreme Court in In Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.
The context in which the doctrine of act of state has developed and is invoked needs to be appreciated when there is a challenge to an act of state in the domestic courts. This can be by contrasting the concept that prevails at common law from which the act of state doctrine originates. In English law, the act of state doctrine can be accurately described as being a product of the common law and not international law and it has similar origins to the U.S. doctrine. It is worth noting that the Supreme Court decision in
Lord Wilberforce’s principle of “non-justiciability” was elucidated in
But, the ultimate question what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, upon an appreciation of the nature and limits of the judicial function. This has clearly received the consideration of the United States courts. When the judicial approach to an identical problem between the same parties has been spelt out with such articulation in a country, one not only so closely akin to ours in legal approach, the fabric of whose legal doctrine in this area is so closely interwoven with ours, but that to which all the parties before U.S. belong, spelt out moreover in convincing language and reasoning, we should be unwise not to take the benefit of it. Buttes Gas & Oil Co. v. Hammer (No.3) [1982] A.C. 888, 937.
The principle of non-justiciability has been extended to the standard of proof to be satisfied by a party which asserts that justice has not been done in a foreign jurisdiction. In
Whereas In
Lord Hope stated further that this did not provide an absolute rule and it was subject to an exception based on public policy. This is effective “if the foreign legislation constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise the legislation as a law at all”. Kuwait Airways Corp. v. Iraqi Airways Co. (No’s 4 & 5) [2002] UKHL 19, ¶137.
The concept of the political question doctrine arose in the United States at the turn of the 19th century when the U.S. Supreme Court held that policy considerations in foreign relations made certain issues inappropriate for judicial hearing. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Marbury v. Madison, 5 U.S. 137, 170 (1803) (Marshall, C.J.). Baker v. Carr, 369 U.S. 186 (1962).
The issue was that a 1901 statute of Tennessee arbitrarily divided the seats in the legislature among the State’s 95 counties, and Tennessee had failed to reapportion them afterwards despite the substantial increase and redistribution of the State’s population. This meant that the claimants suffered from a “debasement of their votes,” and were, therefore, denied the equal protection of the laws guaranteed to them under the Fourteenth Amendment.
The application for a declaratory injunction restraining certain state officers from organizing any further elections was denied by the district court on the basis that it lacked jurisdiction of the subject matter and that no relief could be granted. The case reached the U.S. Supreme Court where the majority considered the case was justiciable.
Justice Brennan, in a 6-2 majority verdict, delivered the opinion for the Court holding that by virtue of debasement of their votes, the appellants’ allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which they were entitled to a trial and a decision. The right asserted was within the reach of judicial protection under the Fourteenth Amendment.
The dissenting justices, Frankfurter and Harlan, JJ.
The ruling of the Court identified six factors, the presence of one or more of which would render a case non-justiciable. This established the principle that “it is [an] error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance”. Baker v. Carr, 369 U.S. 186, 211 (1962) (Brennan, J.).
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due [to] coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
These factors are broad in scope and could cover a range of cases and this has caused much criticism of the doctrine.
There have been many decisions in the U.S. courts on the “political question” doctrine both pre- and post- Occidental Petroleum Corp. v. Buttes Gas & Oil Co, 331 F.Supp 92 (C.D. Cal. 1971); aff’d Occidental Petroleum Corp. v. Buttes Gas & Oil Co, 461 F.2d 1261 (9th Cir. 1972).
The interplay between the application of the political question doctrine and public international law is provided by the same concept on which the House of Lords created its doctrine of non-justiciability. The action in the United Kingdom courts which culminated in Occidental Petroleum Corp. v. Buttes Gas & Oil Co, 331 F.Supp 92, 110 (1971). Buttes Gas & Oil Co. v. Hammer (No. 3) [1982] AC 888, 935.
There was subsequent litigation in the United States brought three years later based on similar allegations, but the claims made related to the tortious conversion of cargoes of oil extracted and shipped from the area of disputed sovereignty and imported into the United States. Summary judgment against Occidental was granted. Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo Laden aboard Dauntless Colocotronis, 396 F.Supp. 461 (W.D. La. 1975). Occidental of Umm al Qaywayn Inc. v. A Certain Cargo of Petroleum Laden aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1203 (5th Cir. 1978). Baker v. Carr, 369 U.S. 186, 217 (1962). Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo Laden aboard Dauntless Colocotronis, 396 F.Supp 461 (W.D. La. 1975). Occidental of Umm al Qaywayn Inc. v. A Certain Cargo of Petroleum Laden aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1203 (5th Cir. 1978).
This reasoning reveals twofold deference to the United States executive and to the act of state doctrine and has been criticized for violating the protection of private rights in international law. Anne Martragono,
Lord Wilberforce considered that the
ultimate question [of] what issues are capable … of judicial determination must be answered in closely similar terms in whatever country they arise … When the judicial approach to an identical problem between the same parties has been spelt out with such articulation in a country, one not only so closely akin to ours in legal approach, the fabric of whose legal doctrine in this area is so closely interwoven with ours ... spelt out moreover in convincing language and reasoning, we should be unwise not to take benefit of it.
This makes the judgment in the House of Lords in There have been references made to
The principle that existed prior to the enactment of the Justice Against Sponsors of Terrorism Act (JASTA) in 2016 was that a citizen of the United States was not entitled to recover damages from another country since the acts were those of a foreign government. The issue that the courts face is the extent to which this rule has been circumvented by the separation of powers that is a central tenet of the U.S. constitution unlike other common law systems. This has led to the emergence of the three main principles that justify this doctrine, two of which are based on the theories of “international law” and “territorial choice of law”; external deference which gained approval in the early cases establishing the political question doctrine; and the “separation of powers” theory which is based on the theory of internal deference. These are most crucial in governing the application of state immunity when denying private remedies in international law.
In 376 U.S. 398 (1964).
The district court had concluded that the corporation’s property interest in the sugar was subject to Cuba’s territorial jurisdiction, and acknowledged the “act of state” doctrine, which precluded judicial inquiry in the United States respecting the public acts of a recognized foreign sovereign power carried out within its own territory. The court nevertheless rendered summary judgment against the petitioner, ruling that the act of state doctrine was inapplicable when the questioned act violated international law, which the district court found had been the case. Banco Nacional de Cuba v. Sabbatino, 193 F.Supp. 375 (S.D.N.Y. 1961). Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 412-13 (1964).
Justice Harlan’s opinion in
the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or international justice.
This prevented the courts from holding invalid an official act of expropriation by a state within its own territory which was recognized as such by the United States at the time of litigation. This was in the absence of a treaty or other undisputed agreement regarding established legal principles, even if the claim alleged that the appropriation “violates customary international law.” In It implies that the courts do have a reviewing power to the extent that a case involves the “official act of a foreign sovereign,” the Act of State doctrine applies only when a U.S. court must declare such an official act “invalid, and thus ineffective as a rule of decision for the courts of this country.”
The act of state doctrine will not apply merely because a judicial inquiry in the United States might humble a foreign country or interfere politically in the conduct of United States foreign policy, which are examples of the narrow application of this doctrine. The Foreign Sovereign Immunities Act of 1976 does not affect the application of the act of state doctrine. In the Restatement (Third) of the Foreign Relations Law of the United States, Published by the American Law Institute in 1987, and regularly updated, this Restatement is an unofficial yet authoritative account of international law as it applies to the United States.
In the United States there have been legal issues that have arisen in the context of domestic law within the state-federal system and these have involved the personal, territorial, and nationality jurisdictions. The federal government has promulgated several laws that govern the conduct of United States nationals abroad. These include the liability for bribing public officials of foreign countries in order to get contracts (Foreign Corrupt Practices Act of 1976) and Title VII of the Civil Rights Act also applies extraterritorially where, for example, a U.S. citizen is employed abroad by an American company.
The Alien Tort Claims Act (ATCA) 1789 may be invoked where the foreign parties are sufficiently “aliens” for the sole purpose of invoking jurisdiction of the U.S. courts. The preamble states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Act stems from the Judiciary Act in 1789 when the United States government set out it three-tiered system of courts and the U.S. Supreme Court was designated as the apex court in the land. This Act established the Judicial Courts of the United States, ch. 20, § 9, 1 Stat. 73, at 77, codified as amended as ‘Alien’s Action for Tort (Alien Tort Statute (ATS), Alien Tort Claims Act, (ATCA))’ 28 U.S.C. § 1350, 25 June 1948 (United States). The Judiciary Act, in its amended form, remains as the framework upon with the national court system is based.
The Act provides civil redress in tort for a violation of established customary international law for foreign nationals against U.S. citizens. The elements that have involved legal proceedings under this Act in the American courts have concentrated on legislative intent, international law and human rights violations.
In 630 F.2d 876 (2d Cir. 1980),
The Filártiga family filed a complaint before U.S. courts alleging that Peña had wrongfully caused Joelito’s death by torture and sought compensation of $10,000,000. The action was brought under the Alien Tort Claims Act and was intended to prevent Peña’s deportation to ensure his availability for the trial process. The crimes were committed outside the United States, namely in Paraguay, and neither the plaintiffs nor the defendant were United States nationals. The District Court for the Eastern District of New York dismissed the case on the grounds that subject matter jurisdiction was absent and for Filartiga v. Peña-Irala, 577 F.Supp. 860 (E.D.N.Y. 1984). Filartiga v. Peña-Irala, 630 F.2d 876, 889 (2d Cir. 1980).
The main issue before the court was: does an act of torture violate the law of nations and, if a foreign national brings a case before federal courts for civil redress for acts, which occurred abroad, can this be reviewed by the courts? The U.S. Court of Appeals reversed the district court‘s decision, and declared that foreign nationals who are victims of international human rights violations may litigate against the perpetrators in federal court for civil redress, even for acts which occurred abroad, so long as the court has personal jurisdiction over the defendant. In particular, the Court held that “whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction”.
In Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25 (2004).
In
The case was remitted back to the district court for trial where Álvarez-Machaín was found not guilty for lack of evidence. In 1993, after returning to Mexico, Alvarez filed civil actions against Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents.
This was under the Federal Tort Claims Act (FTCA), which allows the federal government to be sued on tort claims, and ATCA, which permits law suits against foreign citizens in American courts. The United States government argued that the FTCA applied only to claims arising from actions within the domestic jurisdiction of the United State and, therefore, did not apply to the plaintiff because his arrest took place in Mexico. The federal authorities and the Mexican nationals also stated that the ATCA permitted federal court jurisdiction to decide tort claims against foreign citizens, but did not permit private individuals to commence actions. The federal district court disagreed with the government’s contention that the FTCA claim did not apply, finding that the plan to capture Alvarez-Machain was instigated within the U.S. jurisdiction.
They exonerated the federal party by stating that the DEA had acted lawfully when the arrest happened, and also vindicated the litigation by private individuals under ATCA by holding that Sosa, one of the Mexican nationals who kidnapped Álvarez-Machaín, had violated international law and was liable. On appeal, the Ninth Circuit overruled the decision that the federal party was not liable under the FTCA decision, because the DEA could not authorize a citizen’s arrest of the accused in another country. It affirmed the lower court’s finding on the ATCA claim that Sosa was liable in the detention of Alvarez-Machain. This judgment confirms that the provisions of ATCA enable an “alien” plaintiff to file a tort claim against Alvarez-Machain v. U.S., 331 F.3d 604 (9th Cir, 2003). The rules most likely to have that status would be specific rules protecting basic human rights, such as the rule against torture or the rule against cruel, inhuman or degrading treatment. For the debate on whether international human rights law is part of federal law, compare Curtis A. Bradley & Jack L. Goldsmith,
The availability of such a remedy means that the Act is a jurisdictional statute that addresses a set of justiciable torts limited to those defined as prohibited norms under either the law of nations or treaties adopted by the United States. The law of nations covers only that part of international law which can be defined as the core set of norms universally binding on States. This means that there has to be a recognition of rights enshrined as part of the “law of nations”. The ruling also established an elastic framework for determining which torts constitute causes of action under its clauses. The clauses of ATCA do not contain any 28 U.S.C. § 2680(k). “The provisions of this chapter and § 1346(b) of this title [that waive sovereign immunity and include the ATCA] shall not apply to: … (k) Any claim arising in a foreign country.” Sosa v. Alvarez-Machain, 542 U.S. 692, (2004) - “The actions in Mexico are thus most naturally understood as the kernel of a claim ‘arising in a foreign country,’ and barred from suit under the exception to the waiver of immunity.” at 700-01.
For the United States, the point of departure with other common law jurisdictions concerns obligations under treaties which are the highest source of power in the land and which bind the courts to respect them as the law of nations. . The Supremacy Clause of Article VI, cl. 2 of the United States Constitution provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”. 6 U.S. 64, 118 (1804). Referring to civil law countries like Belgium, Justice Breyer’s concurrence in [C]onsensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. Sosa v. Alvarez-Machain, 542 U.S. 692, 762 (2004).
There has since been affirmation of the common law principles by the U.S. Supreme Court which has held that they override the statute in claims of immunity by individual foreign officials. In 560 U.S. 305 (2010).
The U.S. Court of Appeals for the Fourth Circuit reversed, holding that the FSIA did not render Mr. Samantar immune from suit on the basis that it did not apply to foreign government officials. 552 F. 3d 371 at 381-83.
The Supreme Court held that the FSIA did not govern Samantar’s claim of immunity and that there was no inference within the Act to suggest that “foreign state” should be read to include an official acting on behalf of that state. The Court also stated that the intention of Congress in the Act did not express the intention to codify official immunity within the FSIA. Justice Stevens writing his opinion for the court held that the FSIA’s provisions— Samantar v. Yousuf, 560 U.S. 305, 319 (2010). Pp. 13–19.
Stewart reflecting on this ruling states
“Human rights advocates might generally be pleased that individual officials can no longer claim immunity under the FSIA. But nothing in the decision signals open season for suits against such officials. Significant issues remain to be litigated, among them whether the Torture Victim Protection Act of 1991 (which creates a civil cause of action against any individual who under actual or apparent authority, or color of law, of any foreign national subjects an individual to torture or extrajudicial killing) reflects congressional intent to override the common law of foreign official immunity”. David P. Stewart, Samantar v. Yousuf:
The litigation in the United States covering extraterritorial claims has proceeded governed by the ATS, as long as the tort claimants have a strong connection with the territory of the US and their claims are sufficiently compelling. In Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).
Justice Breyer provided the minority opinion concurring with the decision and stated that there should be jurisdiction under the act
where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.
He founded this belief on the precedent established in Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). Kiobel v. Royal Dutch Petroleum Co,
Justice Alito, concurring, noted the Court’s earlier holding in
Paul Hoffman, who argued both Paul L. Hoffman, Kiobel v. Royal Dutch Petroleum Company:
The Justice Against Sponsors of Terrorism Act (JASTA) 2016, enacted by the U.S. Congress over President Obama’s veto, creates a subject matter jurisdiction for courts to hear cases that involve alleged wrongdoing by other countries. It amends the Foreign Sovereign Immunities Act (FSIA), which had no direct bearing on the This exception in the FSIA has existed since 1996, under 28 U.S.C. § 1605A. § 1605A provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death caused by certain acts like torture and extrajudicial killing—or material support for such acts—by foreign government officials. This provision is limited to countries designated by the United States as state sponsors of terrorism (currently Iran, Sudan, and Syria). Since the U.S. Supreme Court’s decision in 18 U.S.C. § 2337.
The new terrorism exception added by JASTA under § 1605B provides that a foreign state shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) an act of international terrorism in the United States; and (2) a tortious act of a foreign state or its officials “regardless where the tortious act or acts of the foreign state occurred.” 28 U.S.C. § 1605B(b)(2). 28 U.S.C. § 1605B(d).
Prior to JASTA, a U.S. national could not litigate an action based on an act of international terrorism against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.” 18 U.S.C.A. § 2337(2) 28 U.S.C. § 1605B(b). 28 U.S.C. § 1605B(d).
There has been criticism of JASTA in the light of the erosion of the principle of sovereign immunity. There have been criticisms levelled in European parliaments to the effect that JASTA “conflict[s] with fundamental principles of international law and in particular the principle of State sovereign immunity.” Julian Pacquet, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Rep. 99, ¶78 (2012).
However, the United States, like many other common law-based jurisdictions, follows a restrictive theory of foreign sovereign immunity under which the immunity of foreign states does not extend to their private and commercial acts (
The scope of the FSIA and the actions against the governments and their assets deemed to have been sponsors of terrorism has been determined in a recent judgment delivered by the U.S. Supreme Court in Rubin v. Iran, 583 U.S. _ (2018). 830 F.3d 470 (7th Cir. 20177). Rubin v. Iran, No. 16–534, slip op. at 12-15 (Feb. 21,2018).
However, Professor William S. Dodge argues that in validating the JASTA’s new terrorism exception there appears to be no general and consistent practice of states or William S. Dodge,
However, Dodge states that the “foreign sovereign immunity typically turns on the nature of the act, and international law does not typically dictate the particular processes a state must use to grant or deny such immunity”. It is not contingent on the customary international law for “the U.S. and Canada to deny foreign sovereign immunity when they have designated a particular country as a state sponsor of terrorism”. The reason is that “customary international law does not require foreign sovereign immunity for terrorist acts in the first place”. In determining whether state immunity for terrorism sponsorship can be deemed as parallel to foreign sovereign immunity with respect to armed forces, Dodge sees a precedent in
U.S. courts, before JASTA was enacted, had adopted an “entire tort” interpretation of the FSIA territorial tort exception under ¶ 1605(a)(5), requiring that not just the injury but also all of the tortious conduct should have occurred in the United States. However, Article 12 of the proposed United Nations Convention on Jurisdictional Immunities of States and Their Properties U.N.G.A. A/RES/59/38 (Dec 2, 2004) (not yet entered into force).
There are various processes by which sovereign immunity may be preserved. Section 5(b) permits the U.S. Attorney General to intervene in any action being taken against a foreign “for the purpose of seeking a stay of the civil action, in whole or in part.” The U.S. court “may stay a proceeding against a foreign state if the Secretary of State certifies that the federal government is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.” JASTA § 5. There have been suggestions by an Iraqi lobby group that the United States should pay compensation for damages arising out of the 2003 invasion.
In comparing the issue of justiciability in the Canadian courts with the American “political question” doctrine, state immunity needs to be considered within the context of recent statutes and case law. The Canadian government has, like the other common law countries, enshrined the principle of state immunity into its statutory framework. State Immunity Act, R.S.C. 1985, as amended 2012. c. S1-18 (the “SIA”). The Supreme Court in Schreiber v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 513 (S.C.C.),¶ 27.
Section 3(1) states “[e]xcept as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada”. Under a plain and ordinary reading, these words codify the law of sovereign immunity. In Canada, international treaties must be incorporated into domestic law through adoption before they have domestic force and effect. Upon ratifying an international agreement, Canada will have international obligations flowing from that agreement that remain unchanged despite a failure to enact implementing legislation or otherwise make the agreement domestically binding. On the importance of customary international law for Canadian legislation generally, see “While human rights norms have been accumulating at a rapid pace since the end of the Second World War, the development of
In Bouzari v. Iran [2004] OJ No 2800, ¶ 42 (Ontario Court of Appeal).
The Court decided that existing Canadian law precludes claims against foreign sovereigns for such acts. Goudge, J.A. ruled that
the wording of the SIA must be taken as a complete answer to this argument. Section 3(1) could not be clearer. To reiterate, it says: “3(1)
Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.” The plain and ordinary meaning of these words is that they codify the law of sovereign immunity.
The
The Canadian courts recognize a difference between forms of international law and treaties must be incorporated into domestic law through a formal act of parliament before they have domestic force and effect. Upon ratifying an international agreement, Canada has international obligations flowing from that agreement that remain unchanged despite a failure to enact implementing legislation or otherwise make the agreement domestically binding. Bouzari v. Iran [2004] OJ No 2800,¶ 65; On the importance of customary international law for Canadian legislation generally, Adam Day defines the normative rights theory as ‘International law cannot bestow immunity from prosecution for acts that the same international law has universally criminalized’.
The implication for the sovereign immunity is that the Canadian judiciary has not defined the powers of judicial review by restricting them to just sovereignty and territoriality. This is a clear basis for review by the courts for private litigants, which can bring private claims for tortious liability and the review will be the process of a merits-based approach. The merits-based approach has an advantage in that it is a more appropriate procedure for those seeking judicial resolution of disputes. It makes the courts more accessible for litigants who should anticipate that their claims may only fail for legal reasons. These litigants will not be dismissed because state immunity will not apply and the failure to use, and the abuse of, executive certificate standards or concerns not to infringe the executive’s role will not prevent the court’s intervention.
In Operation Dismantle Inc. v. R. [1985] 1 SCR 441. Buttes Gas & Oil Co. v. Hammer (No. 3) [1982] AC 888. Kuwait Airways Corp. v. Iraqi Airways Co. (No’s 4 & 5) [2002] UKHL 19, ¶ 148.
Wilson, J. explicitly rejected the “political question” doctrine and instead stated there was a concept of abstention, and focused on “whether the courts should or must rather than on whether they can deal with such matters”. Operation Dismantle Inc. v. R. [1985] 1 SCR 441, 467.
Dickson, J. dismissed the appeal on its merits, declaring that the appellants could never prove the causal link between the government’s decision to permit testing and the increased likelihood of a nuclear war. The foreign policy decisions of other nations were thought not to be capable of forecasting “to any degree of certainty approaching probability” and would remain based on speculation.
In terms of stating principles, the joint judgment stated Operation Dismantle Inc. v. R. [1985] 1 SCR 441, 459. For further reference,
The Canadian legislature enacted the Justice for Victims of Terrorist Act (JVTA) 2012 allowing victims of terrorism to sue the perpetrators and supporters of terrorism. These may include supporters of foreign states, provided that the Canadian government has formally listed the state as a supporter of terrorism. This provision in the JVTA sets out that if the if the judgment is against a foreign state, that state must be on the list referred to in subsection 6.1(2) of the SIA for the judgment to be recognized. . This has been in accordance with the 1996 amendment to the FSIA in the United States that enables victims to sue if the country has been declared as a sponsor of terrorism under S 1605A. Section 1605A states that a foreign state shall not be immune from suits seeking money damages for personal injury or death caused by certain acts like torture and extrajudicial killing—or material support for such acts—by foreign government officials. This provision is limited to countries designated by the United States as state sponsors of terrorism (currently Iran, Sudan, and Syria). It also requires both conduct and injury inside the United States—specifically, “an act of terrorism in the United States” and injury or death “occurring in the United States.
The enactment of the JVTA in Canada led to expatriate Arab communities, who had been victims of violence, bringing group claims against perpetrators allegedly backed by Iran. The litigation commenced once the families of the victims, who had been previously awarded damages against Iran by various U.S. courts, tried to satisfy the U.S. damages awards by seizing Iranian assets in the U.S.
While the various claimants brought separate actions in Canada seeking to enforce their U.S. judgments and recover against Iran’s non-diplomatic assets in Canada, the actions were ultimately heard together as a group claim. In Tracy v. Iranian Ministry of Information and Security, 2016 ONSC 3759 (2016).
The plaintiff brought the action under Part 2 of the Criminal Code and section 4 of the Justice for Victims of Terrorism Act. The Court considered issues relating to the limitation period and the enforcement of punitive damages awards (in this case, in the hundreds of millions of dollars). The government of Iran’s defense was that the loss or damage suffered by the victim had to have been, in the language of s 4(1) of the JVTA, suffered after January 1, 1985, but the Court held that this didnot prevent the enforcement of American decisions in respect of acts of terror which happened before that date because the victims continued to suffer harm on an ongoing basis. The court’s ruling was that damages that were punitive awards were not contrary to public policy.
However, in any appeal, Iran does have a significant procedural problem as it did not defend the actions initially brought in Ontario. The immunity arguments were received by the court as part of Iran’s motion to have the resulting default judgments set aside, and not on the issue of whether Iran might have a sustainable defense on the merits. The case concerned the non-diplomatic assets that were available for recovery in accordance with the Vienna Convention on Diplomatic Relations 500 U.N.T.S. 95, entered into force Apr. 24, 1964.
The Court ordered that Iran’s non-diplomatic assets be handed over to the claimants, effectively holding Iran financially responsible for the actions of terrorist groups it had allegedly sponsored. The “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.”
In commenting on the JVTA and the FSIA section 1605A, Francis Larocque states that “the Canadian model is just as problematic as both statutes ultimately grant or deny immunity by executive fiat, and not through principled assessment of the impugned state act’s legal character as continuously required under the restrictive doctrine.” Francois Larocque, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Rep. 99, ¶ 64 (2012).
The common law doctrine of the Act of State with no foundation in the law of nations has spread and become a universal doctrine with acceptance across states even within the civil law jurisdictions. It has brought about inconsistent results when it has been tested in the courts which have led to critics treating the doctrine with a considerable amount of circumspection. This has not led to its dissipation but has enhanced its use by the adoption of different rules of application by the common law courts, notably in the United Kingdom, the United States, Canada and Australia. The rulings of the courts apply within their jurisdictions but there are principles to be drawn, such as non-justiciability and the political question doctrine, that the courts need to explain when distinguishing their refusal to step into the domain of the executive and drawing a narrow basis for their intervention.
The doctrine is closely linked to the constitutional arrangements in which the issues that come before the courts are decided and the judges have to evaluate their application. It is no surprise that the reluctance of the judiciary to adjudicate upon the issues is premised on the abstract principles of state sovereignty, the separation of powers and the comity of nations. This is the reason why the judiciary has traditionally abstained from adjudicating upon issues which may impact upon the relations between states considering that to be the responsibility of the executive branch of the government. In the common law countries, the judicial interpretation of these concepts comes up against the complex factual and legal questions of a transnational nature which leads to lack of uniformity in the decisions by judges.
The understanding of the U.S. courts has moved from the time when it was determined in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424-27 (1964).
In the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Rep. 99, at ¶¶ 55 – 56 (2012).
The Court also defined the relationship between jurisdictional immunity and the territorial sovereignty of the forum State by stating that:
This principle [of State immunity] has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may [also] represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.
The Court made its decision on the basis of the European Convention for the Peaceful Settlement of Disputes 1961. Article 27(a) of the Convention states that the Convention did not apply to “disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”. The Court held that the subject matter of the dispute – the crimes for which reparations are sought – occurred during between 1943 and 1945. However, the “…facts or situations” which have given rise to the (present) dispute before the Court are constituted by Italian judicial decisions that denied Germany the jurisdictional immunity… and by measures of constraint applied to property belonging to Germany.”
It has to be noted that the jurisdictional immunities of states and their officials are governed by international law. The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted on Dec. 2, 2004 and was opened for signature on 17 January 2005, and is at present short of ratification by 9 states to be effective. U.N. Doc. A/59/508 (not yet in force).
The Convention articulates a restrictive theory of sovereign immunity, rather than the historic absolute immunity. The rules relate to legal proceedings in the courts of another state, do not cover criminal proceedings, and do not allow civil actions in tort liability for human rights abuses against state agents where the abuse has occurred in another country. Liability is not predicated upon serious breaches of jus cogens norms. In that sense it has given precedence to state immunity and reaffirmed the judgment in the
The United States has not ratified the prospective Convention and it seems that the federal government is reliant on its own domestic legal framework to interpret the doctrine of Act of State. It is by reference to the FSIA and the exceptions that the courts are allowed to intervene and to the CRA and ATCA which can be invoked when the issue of liability arises for injury caused by officials in other jurisdictions. The courts have to be impartial in adjudication and despite the exceptions to the political question doctrine need to be familiar with the grounds for litigation in the courts that may challenge state immunity.