Acts of State, State Immunity, and Judicial Review in the United States

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 Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), where it stated that the discretionary executive actions of the government are not usually reviewable, “ but where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy”. Id. at 166.

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 Oetjen v. Central Leather Co. 246 U.S. 297 (1918), which affirmed the decision in Underhill, 168 U.S. 250, was referred to in the judgments in Luther v. Sagor & Co [1921] 3 KB 532 and Princess Paley Olga v. Weisz [1929] 1 K.B. 718, Scrutton, L.J. in the latter stating that English law on the point was the same as American law (Princess Paley, at 724-25; 728-29).

Lord Wilberforce’s principle of “non-justiciability” was elucidated in Buttes Gas & Oil Co. v. Hammer (No.3) [1982] A.C. 888 as follows:

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 Kuwait Airways Corp. v. Iraqi Airways Co. (Nos 4 & 5) [2002] UKHL 19, the House of Lords identified three separate issues arising when English courts are called upon to adjudicate what might otherwise be a wrong and are offered foreign legislative or executive acts by way of defense. The first was the accepted rule that a foreign sovereign is to be accorded absolute authority to act as a sovereign within its own territory; the second is whether the sovereign was acting within its own territorial jurisdiction or not and, finally, there is a certain class of sovereign act which requires judicial deference, called nonjusticiability, on the part of the English domestic court. Lord Hope ruled: “There is no doubt as to the general effect of the rule which is known as the act of state rule. It applies to the legislative or other governmental acts of a recognised foreign state or government within the limits of its own territory. The English courts will not adjudicate upon, or call into question, any such acts. They may be pleaded and relied upon by way of defence in this jurisdiction without being subjected to that kind of judicial scrutiny.” Id. at ¶135.

Whereas Buttes involved issues concerning several foreign states, the political question doctrine developed as a reaction to both internal and external circumstances. This is the reasoning that underlies the wider application of the political question doctrine in relation to the concept of non-justiciability. It is the basis for the claim that the political question doctrine originates from English precedent and is premised upon concerns different from the contemporary Buttes doctrine.

In Coleman v. Miller, 307 U.S. 433, 460 (1939), Frankfurter, J. held that this principle extended as far back as the 15^th century, citing Duke of York’s Claim to the Crown (1460) 5 Rot. Parl. 375. In Coleman, the U.S. Supreme Court recognized that the doctrine was both part of the separation of powers as well as a limitation on justiciability. Coleman, at 454-55 (Hughes, C.J.).

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).

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.

Id. at 226 (Brennan, J.), 241 (Douglas, J., concurring), 251 (Clark, J., concurring), and 265 (Stewart, J., concurring).

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.

Id. at 237.

The dissenting justices, Frankfurter and Harlan, JJ.

Id. at 297 (Frankfurter, J.).

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.).

These factors are broad in scope and could cover a range of cases and this has caused much criticism of the doctrine.

See, e.g, Michael E. Tigar, Judicial Power, The “Political Question Doctrine,” and Foreign Relations, 17 UCLA L. REV. 1135 (1970); Louis Henkin, Is There a“Political Question”Doctrine?, 85 YALE L. J. 597 (1976); Martin H. Redish, Judicial Review and the“Political Question”, 79 NORTHWESTERN U. L. REV. 1031 (1985); Jonathan I. Charney, Judicial Deference in Foreign Relations, 83 AM. J. INT’L L., 805 (1989). Criticism has also been levelled at the doctrine in the Supreme Court of Canada. In Operation Dismantle v. The Queen, [1985] 1 SCR 441, 469–70 (‘Operation Dismantle’), Wilson, J. said that Justice Brennan’s statement in Baker v. Carr was not helpful in determining when the six factors come into play. Her Honour said that past decisions of the U.S. Supreme Court were highly embarrassing to those in the executive or legislature, for e.g, Marbury v Madison, 5 U.S. 137, 170 (1803) and U.S. v. Nixon, 418 U.S. 683 (1974).

There have been many decisions in the U.S. courts on the “political question” doctrine both pre- and post-Baker v. Carr that have involved considerations internal to the United States and many of the judgments have no impact in relation to transactions involving foreign states.

See, e.g, Powell v. McCormack, 395 U.S. 486 (1969); Gilligan v Morgan, 413 U.S. 1 (1973); Consumers Union of U.S., Inc v. Periodical Correspondents’ Ass’n, 515 F.2d 1341 (D.C. Cir. 1975); Metzenbaum v. Fed. Energy Reg. Comm., 675 F.2d 1282 (D.C. Cir. 1982); McIntyre v. O’Neill, 603 F.Supp. 1053 (D.C. Cir. 1985); Davis v. Bandemer, 478 U.S. 109 (1986).

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 Buttes, also had its American counterpart when the plaintiff Occidental launched two lawsuits in the United States at the same time as commencing litigation in England. This litigation in the United States alleged conspiracy and unlawful interference in respect of the decree made by the Ruler of Sharjah.

Occidental Petroleum Corp. v. Buttes Gas & Oil Co, 331 F.Supp 92, 110 (1971).

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).

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, Act of State and Political Question Doctrines: Judicial Prudence or Abdication?, 11 LAWYER OF THE AMERICAS 205 (1979).

Lord Wilberforce considered that the

This makes the judgment in the House of Lords in Buttes, as predicated upon reliance on the “political question” doctrine which is part of the U.S. constitutional separation of powers, a fact that Lord Wilberforce acknowledged but did not consider relevant in upholding the act of state doctrine in the English courts.

Id. at 936–7.

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 Banco Nacional de Cuba v. Sabbatino (1964),

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).

Justice Harlan’s opinion in Sabbatino established the principle which is the most popular exception to the act of state doctrine that permits U.S. courts to adjudicate on the validity of foreign acts of state under international law. The international law exception originates from the concept that it would not apply if there was a “treaty or other unambiguous agreement regarding controlling legal principles” and that

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.”

Id.

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. See Wythe Holt, “To Establish Justice”: Politics, The Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L. J. 1421, 1478-79 (1989).

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 Filártiga v. Peña-Irala,

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 forum non conveniens,

Filartiga v. Peña-Irala, 577 F.Supp. 860 (E.D.N.Y. 1984).

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”.

Id. at 878.

In Sosa v. Alvarez-Machain (2004), the U.S. Supreme Court stated that “any claim based on the present-day law of nations must rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” of piracy, safe conduct, and ambassadorial offenses.

Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25 (2004).

In Sosa, a U.S. Drug Enforcement Administration (DEA) special agent was abducted and then killed in 1985 by a Mexican narcotics cartel which led to an indictment being issued against Álvarez-Machaín for murder. The DEA could not convince Mexico to extradite the accused; consequently the DEA paid several Mexican nationals to seize him and transfer him to the United States. After his capture, the defense appealed to the U.S. Supreme Court, which held that the government could arraign a person who had been forcibly abducted, but that the capture might violate international law and provide grounds for civil litigation.

Sosa, 542 U.S. at 38

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.

See summary of proceedings in Alvarez-Machainv. U.S., 331 F.3d 604, 610 (9th Cir, 2003).

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 any person over whom the U.S. government has personal jurisdiction, regardless of whether the defendant is a citizen or a foreign national and regardless of whether the alleged tort occurred within or extra-territorially. The provisions of the Act do not prescribe substantive law but require the federal courts to recognize any tort that infringes on individual rights granted by international law.

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 Current Illegitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 319 (1997) with Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998).

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 locus delicti restriction on the exercise of jurisdiction but §2680(k) of the Judiciary Act (its parent statute ) does.

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.”

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”.

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 Samantar v. Yousuf, (2010)

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—i.e. §1603(a) —did not mean to include the ‘foreign state’ to include foreign officials.

Samantar v. Yousuf, 560 U.S. 305, 319 (2010).

Stewart reflecting on this ruling states

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. (2013)

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

He founded this belief on the precedent established in Sosa where the Court had held that ATCA provided federal courts with jurisdiction for a small number of claims that rested on a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized”.

Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

Justice Alito, concurring, noted the Court’s earlier holding in Sosa that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.”

Id. at 126.

Paul Hoffman, who argued both Sosa and Kiobel in the Supreme Court, considers that the Kiobel presumption will be the main initial “screening mechanism” for claims arising under the Act and will influence the approach of the courts regardless of the manner of its interpretation. He states that “it is unclear how the Kiobel majority views the relationship between the new presumption and existing limiting doctrines (e.g. forum non conveniens, political questions, international comity) commonly litigated in ATS cases”.

Paul L. Hoffman, Kiobel v. Royal Dutch Petroleum Company: First Impressions, 52 COLUM. J. OF TRANSNT’L L. 28, 41 (2013).

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 content of any lawsuit, but articulates a few narrow instances in which lawsuits against foreign countries may proceed in federal court. It had a terrorism exception that was limited to designated state sponsors of terrorism.

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).

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).

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)

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, EU Lawmakers Warn Congress against Saudi Terrorism Bill, AL-MONITOR, 13 July 2016. http://www.al-monitor.com/pulse/originals/2016/07/european-warn-congress-saudi-terrorism-bill-jasta-911.html#ixzz4OIVbVkWd.

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 (acta jure gestionis), but generally does extend to their governmental acts (acta jure imperii).

Id. at ¶ 64.

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. Islamic Republic of Iran (2018)

Rubin v. Iran, 583 U.S. _ (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 opinio juris that establishes a “legal obligation that foreign states are entitled to immunity for acts of terrorism or material support of such acts. To be sure, most states that have statutes governing foreign sovereign immunity do not have exceptions for terrorism. But it is not clear that the states extending foreign sovereign immunity to cover terrorist acts do so out of a sense of legal obligation”. He points to both the United States and Canada that have “terrorism exceptions in their foreign sovereign immunity laws” and the “lack of protests prior to JASTA is more evidence that a terrorism exception does not violate customary international law”. The liability for breaching the provisions in both the United States and Canada relate to the “state sponsors of terrorism”.

William S. Dodge, Just Security, Does JASTA Violate International Law? (Sept. 30, 2016) -https://www.justsecurity.org/33325/jasta-violate-international-law-2/.

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 Jurisdictional Immunities, where the ICJ found for armed forces “an almost unbroken practice of judicial decisions extending such immunity, even when the acts were committed on a state’s own territory”.

Id. (citing Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Rep. 99, ¶¶73-77 (2012)).

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.

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”).

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. See Ahani v. Canada (Attorney General) 58 OR (3d) 107, ¶ 32 [2002] (Ontario Court of Appeal). The majority decision was set out with reasons but, in a highly unusual move, Heureux-Dube, J. expressed dissent from the other two judges on the appeal panel. Id.at ¶62.

In Bouzari v. Islamic Republic of Iran, (2004), a case brought by an Iranian immigrant, who was tortured by government officials in his home country, led to the Ontario Court of Appeal dealing with the question of whether the SIA provides potential remedies for victims of torture abroad. The facts in the case demonstrated that Ontario was the only place where Mr. Bouzari could sue and, as in many such cases for victims of torture, it was impossible for Mr. Bouzari to return to the country whose government agents had tortured him in order to lodge a legal claim against the state.

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 Bouzari Court concluded that the SIA occupies the field in this area and that it provides no exception for torture. The outcome in this case suggests, therefore, that civil redress in Canadian courts for grave human rights abuses committed by foreign states will be driven by legislative change, not an expansive interpretation of the existing Act.

See also, Arar v. Syria [2005] O. J. NO. 752, ¶ 28.

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. Ahani v. Canada (Attorney General) 58 O.R. (3d) 107, 2002 O.J. NO. 431, ¶ 32; (Leave to appeal to the Supreme Court den’d, [2002] S.C.C.A. NO. 62).

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, the Supreme Court of Canada unanimously dismissed an appeal against a decision to strike out a statement of claim which alleged that the Canadian executive’s decision to allow the United States to test cruise missiles in Canada increased the likelihood that Canada would be a target for nuclear attack, thereby violating the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms (Section 7, Part I of the Constitution Act 1982).

Operation Dismantle Inc. v. R. [1985] 1 SCR 441.

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.

Id. at 453.

In terms of stating principles, the joint judgment stated obiter, that there is “no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts”.

Operation Dismantle Inc. v. R. [1985] 1 SCR 441, 459.

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), the Ontario Superior Court of Justice had to consider the legislative reforms and how they applied to a series of American judgments rendered against Iran in favor of American victims of terrorist acts which Iran was found to have sponsored. The court held that Iran was not immune from the enforcement proceedings and that accordingly the American judgments were enforceable against certain assets of Iran in Ontario.

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.

Id. at ¶ 109 (2016).

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 Tracy verdict marks a landmark decision for the victims of terrorist actions who have claimed against the commercial assets of a government that is on the terror list, as was Iran in the Canadian case. The ruling also confirms that the JVTA imposes liability for state-sponsored terrorism in accordance with the Canadian approach to commercial actions seeking compensation for foreign state misconduct. The State Immunity Act provides an escape clause from the immunity of foreign states when it comes to commercial activity.

“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, Torture, Jurisdiction and Immunity, in ALEXANDER ORAKHALASHVILI (ED.), RESEARCH HANDBOOK ON JURISDICTION AND IMMUNITIES IN INTERNATIONAL LAW 461 (2015).