This roundtable provided a forum to discuss and debate current developments in the law of jurisdiction and immunities, with special attention to concerns raised by Professor B.S. Chimni's 2022 essay in the Leiden Journal of International Law on “The International Law of Jurisdiction: A TWAIL Perspective” and a forthcoming special issue of the National Law School of India Review. Aslı Ü. Bâli from Yale Law School served as moderator and discussant.
Mary Catherine Malin, Deputy Legal Adviser at the U.S. Department of State, spoke in her personal capacity and offered a practitioner's viewpoint: As a practitioner, the question that came to mind when I started to prepare for this panel is: how does the Third World Approaches to International Law (TWAIL) perspective inform the practice of international law, as opposed to international law scholarship? To go back to basics, sovereign immunity generally shields nation states from adjudication in each other's courts. The restrictive theory was animated by capitalist concerns—immunity for state-owned commercial enterprises would give them an unfair advantage over private commercial concerns. The underlying premise of restrictive theory is that where the government is acting in the same manner as a private party, rather than acting in a way only a government can, it should be amenable to suit.
This construct looks to be a Global North one, premised on the nation-state and shaped to aid capitalism, but the Global South is participating in shaping it. The UN Convention on the Jurisdictional Immunities of States and their Property (not in force), which is intended to codify customary international law (CIL), has as parties Austria, Spain, Romania, Sweden, and Switzerland, and also Benin, Iraq, Iran, Equatorial Guinea, as well as Lebanon and Saudi Arabia. There have been several cases at the International Court of Justice (ICJ) examining immunity issues brought by countries from the Global South, all of which influence the law of sovereign immunity.
The United States has a foreign sovereign immunities statute, but the majority of countries of the world do not. The U.S. Foreign Sovereign Immunities Act has been criticized for leaving important gaps to be filled in by judges. While courts interpret the Act, the Department of Justice, working with the State Department, will file amicus briefs opining on the proper interpretation of the Act, and these briefs often take into account CIL considerations.
Drawing on some hypothetical examples, Ms. Malin posed the question of whether sovereign immunity should be construed narrowly to permit claims of person seeks redress against governments (or their officials) to proceed, or broadly to protect sovereign interests. In any given case, how would one determine a Global South perspective? To do that one would first need to determine who speaks for the Global South in a particular situation (assuming it is not a monolith). She posed the question of whether we look to states, advocacy groups from the Global South, and/or the work of scholars to inform an analysis of this question. These are the kinds of questions government lawyers grapple with, both in individual cases and when Congress proposes new exceptions to the Foreign Sovereign Immunities Act (FSIA).
Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit and the University of Chicago Law School addressed the general topic of redress for the victims of those who violate basic human rights, whether the offender acts by repressing the rights of political émigrés and dissenters, or by engaging in acts of terrorism, or by causing personal injury or death. She noted that one possibility is to seek state espousal of claims. A second is to attempt resort to one of several international tribunals, such as the European Court of Human Rights, though this can be difficult without state sponsorship. A third is to seek redress in national courts, which was the focus of her remarks.
In the United States, there are several statutes that provide for private redress of violations of international law. The most prominent among them is the Alien Tort Statute, 28 U.S.C. § 1350. The United States also has a statute providing civil remedies for victims of international terrorism, 18 U.S.C. § 2333. This one provides more details about the way in which these suits interact with prior litigation in the United States or a foreign country with respect to the same injuries. Ordinary laws can also be used, as one can see from the attempt in Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), to bring claims against the people who assassinated Orlando Letelier (the former Chilean ambassador to the United States) and Ronni Moffitt by bombing their car: conspiracy to deprive them of constitutional rights; assault and battery; negligent transportation and detonation of explosives; assassination in violation of international law; and assault on an internationally protected person. The district court upheld its jurisdiction to proceed against the Republic of Chile. It could not, however, proceed against most of the responsible individuals, because they were located outside the personal jurisdiction of the D.C. court and thus effective service of process was impossible. Even if one were to assume that they committed a tort within the territory of the District of Columbia (as they surely did), they were safely back in Chile by the time the plaintiffs tried to pull them into the U.S. court.
Most of this audience probably knows the story of the rise and fall of the Alien Tort Statute (ATS). Though the ATS became part of U.S. law in 1789, it was almost never used until 1980, when the Second Circuit relied on it in Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Years earlier, Judge Friendly of that court had dubbed it “a legal Lohengrin,” appearing once a century and then disappearing again. But in Filartiga, the appellate court upheld the use of the statute for a claim brought by some citizens of Paraguay against another Paraguayan citizen for the death of plaintiff's son. This triggered huge interest in the ATS. Questions immediately arose over its nature and scope: Was it jurisdictional only, or did it create a cause of action? If it did create one or more causes of action, what specifically did the court have in mind—those recognized by U.S. law, those under customary international law, those under treaties, or some combination of these theories? Did it matter where the tort occurred (that is, within the territorial boundaries of the United States, or anywhere in the world)? To what extent was the ATS intended to apply only to state actors? Did it apply to corporations established outside the United States whose practices violated human rights norms?
Skepticism began to build as these questions took center stage. Consider, for instance, this opening sentence by another Second Circuit judge in the case of Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995), which involved an effort by victims of atrocities in Bosnia to sue the leader of the Bosnian-Serb forces. The judge stated: “Most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing the leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan.”
Most cases (excluding one that the Seventh Circuit issued years ago, Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007)) relied on the “law of nations” branch of Section 1350, not the possibility of a tort suit based directly on a treaty. I put that point to one side, though it is important when we think of private enforcement of treaties.
But every time the U.S. Supreme Court saw a case brought under Section 1350, it shaved a little more off the possible cause of action. The first interesting case is Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), which presented the question whether some Liberian corporations could sue the Argentine Republic in a U.S. federal court to recover damages allegedly committed by Argentine armed forces on the high seas, in violation of international law. The Supreme Court held that the ATS was not available as a source of jurisdiction for this suit. It reasoned that the Foreign Sovereign Immunities Act, about which we will be speaking, furnished the sole basis for suing foreign governments (as defined by that statute) in U.S. courts. This opinion effectively constricted the scope of the ATS to lawsuits against non-sovereigns.
And the Court was not finished with that observation: thirty years later it held, in Jesner v. Arab Bank, PLC, 584 U.S. 241 (2018), that the ATS did not cover suits against foreign corporations—it reached only U.S. corporations. By this time, too, the Court was clear that the ATS does no more than confer jurisdiction on the federal courts; with minor historical exceptions, it does not at the same time create or recognize a private right of action.
The case establishing the statute's jurisdictional character was Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), which presented a classic human rights problem of alleged torture of certain victims with the knowledge and acquiescence of both the U.S. and the Mexican government. And it is worth admitting that Alvarez-Machain does not slam the door shut entirely for new causes of action. Something new would need to be similar to the traditional international-law offenses of violation of safe-conducts, infringement of the rights of ambassadors (think of Letelier), and piracy. The question is which norms meet that bar—which ones are “specific, universal, and obligatory” enough to permit adjudication. The Supreme Court in several more recent cases has indicated an interest in closing the door further, but it has not garnered a majority to do so (yet). The lower courts have continued to recognize causes of action other than those three. So, for example, the Eastern District of Virginia allowed a case alleging torture, cruel treatment, and war crimes at the Abu Ghraib prison to go forward, in Shimari v. CACI Premier Technologies, Inc., 2023 WL 5181611 (E.D. Va. 2023). The District of Maryland gave the green light to a case involving non-consensual human medical experimentation in Estate of Alvarez v. Johns Hopkins University, 598 F. Supp. 3d 301 (D. Md. 2022).
Another limit on the ATS concerns territoriality, or if you will, extraterritoriality. This is where we enter the metaphysical world of the “entire tort.” Where foreign conduct is involved in an ATS case, the claim must “touch and concern the territory of the United States . . . with sufficient force to displace” the presumption against extraterritoriality. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). The Supreme Court's majority in Nestlé USA Inc. v. Doe, 593 U.S. 628 (2011), while not speaking with one voice, tightened this screw. Nestlé was about the company's alleged funding and training of people on African farms that used slave labor. The Court held that the fact that Nestlé “made all major operational decisions from within the United States” was not enough to show the necessary territorial connection with this country. Most of the precise conduct that was being challenged, such as “providing training, fertilizer, tools, and cash” to the farms took place overseas. Incidental U.S. activities were not enough to save the case.
Many of the courts of appeals occasionally see other cases that raise issues in the general area we are discussing. Two Seventh Circuit cases provide useful examples: Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008) (en banc); and Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012). (There are a fair number of other cases dealing with such topics as art works stolen by the Nazi regime, and failure to pay adequate reparations to victims of Nazi Germany. The courts of appeals also encounter torture allegations regularly when they are deciding petitions for review from denials of asylum, withholding of removal and relief under the Convention Against Torture, but those cases do not give rise to the kind of jurisdictional or sovereign immunity issues that are the focus of this panel.)
Boim arose out of the tragic killing of 17-year-old David Boim, a dual Israeli-American citizen, as he stood at a bus stop in Jerusalem one day. Relying on the statute mentioned earlier, 18 U.S.C. § 2333, his parents brought suit in U.S. court against the alleged killer (a member of Hamas), and three organizations that allegedly supported Hamas's operations (though at least nominally, only its peaceful work)—the Holy Land Foundation for Relief and Development, the American Muslim Society, and the Quranic Literacy Institute. Critically, these organizations had a substantial, if not exclusive, U.S. presence. There were many important issues in the case, which wended its way up to the en banc court. But the most important one dealt with the old-fashioned idea of proximate cause—how far down the chain, or how remote, could this financial assistance be, and still provide a basis for liability? One of the flaws of Section 2333 is that it does not specify who is liable for these terrible acts, and in particular it does not mention aiding and abetting or other types of secondary liability. The Seventh Circuit majority found that even though secondary liability probably did not exist, the definition of international terrorism itself was capacious enough to reach the Holy Land Foundation and the other U.S.-based funders of Hamas.
Abelesz, decided four years after Boim, concerned the efforts of some Hungarian Holocaust victims to recover property from Hungarian Jews—property that allegedly was expropriated from the rightful owners. The defendants were the Hungarian national railway and the Hungarian national bank. Plaintiffs claimed jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3) (known as the expropriation exception) and § 1605(a)(1) (known as the waiver exception). The court in the end did not resolve the case definitively. Instead, it remanded to the district court with instructions to the plaintiffs to exhaust their remedies under Hungarian law (or explain in a compelling way why that would be impossible). The Abelesz decision does, however, contain a careful examination of the way in which the expropriation exception works. Courts have broken it down into four elements:
(1) Were rights in property involved? And what kind of property counts? One difficult question relates to the treatment of intangible property, such as bank accounts and contractual rights to receive payments. Some circuits think that the expropriation exception applies only to tangible property; two others (D.C. and 7th) have held that the exception does not make such a distinction.
(2) Was property taken? If it was a sovereign doing the taking, the other possibility is that it was just regulated or taxed, but still sufficiently held by the owner to prevent a finding of a full-blown taking. If the entity doing the taking was a private organization, there is by definition no expropriation. Note, for example, the 11th Circuit's decision in Agurcia v. Republica de Honduras, 2022 WL 2526591 (11th Cir. 2022). It was a lawsuit brought by approximately one hundred U.S. citizen-investors in a mixed-use development located in San Petro Sula, Honduras, against the state and two state-run entities. Plaintiffs complained that squatters had taken over the land surrounding their development (but not the land on which the houses were being built) and that those squatters effectively had shut down the project. This, they asserted, amounted to a taking in violation of international law. Both the district court and the court of appeals disagreed, finding that no taking had occurred. Among other things, the appellate court noted that the plaintiffs were not asserting a physical taking of their land, other than blocking access to some highways that led to it. The fact that the value of their property plummeted in the wake of the squatters’ action was not enough to prove expropriation.
(3) Was any such taking in violation of international law? This raises a host of questions for a U.S. court, including most prominently what exactly is the status of customary international law—is it federal common law (as Sabbatino would indicate) or is it state law (as some have argued it must be under the principles of Erie Railroad v. Tompkins), does it pre-empt conflicting laws of the constituent states of the United States, etc.)? Not just any rule of international law will suffice, the Supreme Court held in Federal Republic of Germany v. Philipp, 592 U.S. 169 (2021) (rejecting an alleged violation of the genocide convention as a basis). It must relate to the law of property rights, and it also cannot be a taking of property owned by the government's own citizens. There are still a few ways in which the expropriation exception might apply, however. The Second Circuit recognizes three: (1) nationalizations or expropriations of property without the payment of prompt, adequate, and effective compensation; (2) discriminatory takings; and (3) arbitrary takings. Beierwaltes v. L'Office Federale de la Culture de la Confederation Suisse, 999 F.3d 808 (2d Cir. 2021).
(4) Is there a sufficient nexus to the United States to justify the exercise of legislative jurisdiction over the matter? This is a complex requirement, steeped in the general rules of international jurisdiction. It requires that either the property, or perhaps something traceable for which the property was exchanged, is “present in the United States in connection with a commercial activity carried on in the United States by the foreign state,” or that the property (or exchanged property) is “owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” The second possibility, interestingly, seems to indicate that the agency or instrumentality's commercial activity need not be related to the property at issue. Questions that have arisen about this element include whether exchanged property might be just the foreign state's general assets—in other words, how seriously must traceability be taken? The circuits do not agree on this point.
One additional question also comes up: what are “commercial acts” (jure gestionis), as contrasted with “sovereign or public acts” (jure imperii). This has always been a knotty problem. The FSIA itself defines a “commercial activity” and states that the commercial character is determined “by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d). But questions remain. How would you characterize the use of expropriated art “in connection with cultural propagation, language programs [of the home State], and other programs to expose US citizens to the people, language, culture, and country of the home state of the art, with the ultimate goal of commercial growth through cultural exchange.” The 7th Circuit said that this was not a commercial activity, but instead it was an activity of the type undertaken by sovereigns. See Rukoro v. Fed. Rep. of Germany, 976 F.3d 218 (7th Cir. 2020). A case challenging the retention of that art therefore did not satisfy the nexus requirement of the expropriation exception.
Finally, it is worth nodding to the separate regime under U.S. law for the terrorism exception to a foreign state's jurisdictional immunity, 28 U.S.C. § 1605A. This was added by Congress in 2008 (Pub. L. 110-181), just before the en banc Seventh Circuit decided Boim. But sovereign immunity was not the driver of the Boim decision—rather, as noted earlier, it dealt with the acts of private organizations in support of a quasi-state actor. Others on this panel have much more to offer in this respect. It is enough to say that many countries—not just the United States, as we see from the experience of our neighbor to the North, Canada, have legislation designed to exercise jurisdiction to the fullest when it comes to support for international terrorism.
Professor Craig Scott of the Osgoode Hall Law School at York University offered the following thoughts on “Civil Liability and State Responsibility for Iran's Downing of Ukrainian Airlines Flight PS752: Canada-Related Developments.”
My purpose is modest: to provide an overview of the terrorism-tort statutory framework in Canada and the related Zarei lawsuit brought against Iran by families of victims of the shooting-down over Tehran's airport of Ukrainian Airlines PS752 in January 2020.Footnote 1
At the end, I will connect this Ontario lawsuit with two cases now before the International Court of Justice as of 2023. The first was brought by Iran against Canada for breaches of customary international law for failure to respect Iran's state immunity in Canadian courts.Footnote 2 Canada and three other states instituted the second ICJ case against Iran for various breaches of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation in relation to the PS752 deaths.Footnote 3
Statutory Framework for the PS752 Terrorism-Tort Litigation
Canada's Justice for Victims of Terrorism Act (JVTA) was legislated by Parliament in 2012.Footnote 4 Causes of action are authorized against multiple persons or entities—both non-state and state, both for direct terrorist activity and for supporting terrorism. Causes of action are retroactive to January 1, 1985, six months before the greatest terrorist attack in Canadian history—the bombing of Air India Flight 182 on June 23, 1985.
The substantive content for the causes of action is generated by the JVTA's incorporation by reference of the definitions of terrorist criminality found in Part II.1 of Canada's Criminal Code,Footnote 5 including general terrorist-activity crimes and specific terrorism offenses that implement various international conventions like the Montreal Convention at issue in both Zarei and in Canada et al. v. Iran. States can be sued under the JVTA not only if one of the existing State Immunity Act (SIA) exceptions applies—tort in Canada, waiver, attornment, etc.—but also pursuant to a new SIA section legislated at the same time as the JVTA.Footnote 6
By Section 6.1(1) and (2), the cabinet is authorized to list a foreign state when “satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism” with the result that the listed state “is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism.” Loss of immunity for direct terrorist conduct such as the PS752 downing is oddly placed in separate Subsection 6.1(11)), with two condition precedents: the state must be on the terrorism-supporter list of states and a court (not just the executive, it seems) must have “determined that [the] foreign state . . . has supported terrorism.”
The government went on to list only two states, Iran and Syria. Iran's listing opened the way not only to the Zarei litigation but to proceedings to enforce U.S. terrorism-tort judgments against Iran as JVTA Section 4(5) provides such foreign-judgment enforcement proceedings are permitted as long as they are against a listed state.
Also worthy of note are notice, appeal, and periodic review procedural protections in SIA Sections 6.1.(4)–(10) that allow a state to try to get the listing removed and that require the executive to re-assess whether inclusion on the list remains warranted. These may overlap with procedural requirements under the law of countermeasures, should Canada consider defending itself in Iran v. Canada by invoking countermeasures as an alternative to the argument that custom permits states to make terrorism an exception to state immunity.
Finally on the procedural front, JVTA Section 4(4) authorizes a judge to decline to hear the claim “if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.” This provision is intriguing from the perspective of multi-level subsidiarity, apart from its importance for the structure of the JVTA and SIA. It has potential to be an exhaustion-of-transnational-remedies exemplar that opens the wider field of universal or quasi-universal torts to a dynamic in which inter-institutional complementarity is a prominent feature.
Zarei in Brief: Liability and Damages
The downing of PS752 and the killing of all aboard occurred against the backdrop of armed encounters between Iran and the United States. The United States killed a very senior Iranian general, Qasam Soleimani, inside Iraq through a targeted drone attack. Iran responded with a bombardment of a U.S. military base in Iraq. The Iranian military were on alert for escalation that might continue with a U.S. attack of some sort inside Iran. However, even as military defense was beefed up around Tehran's airport, no closure of airspace to civilian airliners occurred. Into this situation flew PS752, which was shot down by an Iranian Revolutionary Guard missile battery mere minutes after departing that airport.
Given this militarized context, a hurdle for counsel in Zarei was that Section 83.01(1) of the Criminal Code, and thus the JVTA, provides that “terrorist activity . . . does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict.” Because Iran failed to appear, the question of whether an armed conflict existed was decided by Justice Belobaba after argument and expert witness testimony presented by the plaintiffs alone. He ruled that there was not an armed conflict at the time of the PS752 downing.
The requisite mens rea standards under the Criminal Code's terrorist provisions make JVTA terrorism an intentional tort. The judge drew on a range of inferences available from four reports, beginning with the rejection in two major public reports of Iran's claims of “human error,” “technical error,” and “accident.”Footnote 7 He then went on to “rely mainly on the [two] expert reports filed by the plaintiffs [which are] detailed in their analyses and unequivocal in their conclusions,” finding “on a balance of probabilities that the missile attacks on Flight 752 were intentional.”
Having issued his judgment on liability, Justice Belobaba then heard (once again, ex parte) argument on quantum of damages. His next judgment awarded $CDN 107 million. Of that, $CDN 7 million was in compensatory damages and $CDN 100 million in punitive damages. Counsel for the Zarei plaintiffs subsequently instituted new proceedings for a second group of PS752 plaintiffs, resulting in an additional award of $CDN 142 million.Footnote 8
Collecting on the Zarei and Smith Awards
Earlier, I noted Section 4(5) in the JVTA on foreign-judgment enforcement.
Applicable to enforcement generally (whether of foreign awards or in-Canada awards), the SIA's Section 12 was amended to lift a listed state's immunity where “attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism or its terrorist activity and to property other than property that has cultural or historical value” (emphasis added).
Section 12 does not exclude diplomatic premises or assets. However, Canadian courts have ruled that Canada's Minister of Foreign Affairs may immunize foreign-state property—as a matter not of state immunity but diplomatic immunity—by swearing in a certificate, pursuant to s. 11 of the Foreign Missions and International Organizations Act (FMIOA), that a foreign state's property or assets are held for diplomatic purposes.Footnote 9
Similarly, omission of a given property or asset in an FMOIA ministerial certificate is treated by the courts as conclusive that diplomatic immunity does not apply. This was affirmed in Tracy v. Iran by the Ontario Court of Appeal when awardees under several different U.S. judgments sought to enforce up to $US 1.7 billion against Iran's assets in Canada.Footnote 10
By the time of the PS752 downing, the cupboard was bare due to the series of pre-PS752 cases that had come in to enforce U.S. awards against Iran or Iran-backed entities. When the Zarei plaintiffs sought to enforce the Ontario judgment against Iranian assets, they lost out because the only remaining unseized assets were listed as covered by diplomatic immunity in a Section 11 certificate issued by the Minister of Foreign Affairs in March 2022.Footnote 11 On May 30, 2024, the Supreme Court of Canada denied the Zarei plaintiffs leave to appeal the FMOIA immunization of diplomatic assets.Footnote 12
The Downing of PS752 and State Immunity Before the ICJ
The JVTA, SIA amendments, and Zarei case are now Iran's main exhibit at the ICJ in Iran v. Canada. On June 23, 2023, Iran suddenly deposited a declaration accepting ICJ compulsory jurisdiction for two limited categories of disputes, both relating to immunities. The next day, Iran instituted proceedings against Canada, alleging breach of customary international law on state immunity.Footnote 13 A week later, it was Canada's turn: proceedings were instituted in Canada et al. v. Iran for the attack on PS752 under the compromissory clause of the Montreal Convention.
These two ICJ cases will now develop not only each as the other's alter ego but also both in the shadow of the law and geopolitics surrounding the Zarei terrorism-tort litigation.
Professor Obiora Chinedu Okafor, Edward B. Burling Chair in International Law and Institutions, School of Advanced International Studies, Johns Hopkins University, Professor (Part-Time) at the Osgoode Hall Law School of York University, and former United Nations Independent Expert on Human Rights and International Solidarity, presented thoughts on “Evaluating the Suitability of Asserted Exceptions to the Sovereign Immunity Principle: The Necessity for Coloniality Impact Pre-Assessments.”Footnote 14
Introduction
While longstanding efforts to introduce exceptions to the principle of sovereign immunity in customary international law have intensified in recent years,Footnote 15 the multiple developments that constitute this trend will, however, not be recounted in this Article in any detail. This is so as not to unduly repeat their in-depth treatment in other papers on this panel. Departing to an extent from the (understandable) tendency to technical, and seemingly neutral, description/analysis that dominates both international legal scholarship in general, and discussions of the efforts to denude the principle of sovereign immunity, this Article adopts a socio-legal approach.Footnote 16 In doing so, it seeks to much more deeply factor in the global political and socio-economic environment and context in which the law operates; the ways in which the “living international law” (i.e., the law as it is experienced by real people) is significantly shaped by political and socio-economic forces. And it employs this socio-legal optic in tandem with a critical third world approaches to international law (TWAIL) lens.Footnote 17 The main goal here is to shed greater light on how best to assess the acceptability of certain asserted exceptions to sovereign immunity in a world that is significantly driven, riven, and constituted by, too often harmful material and ideational power asymmetries.
The Understandable Impetus for Reform
Overall, most of the exceptions to state immunity that tends to be favored by many alleged victims of human rights from many parts of the globe, and being asserted (almost entirely) by very powerful Global North states, are rooted—albeit not exclusively—in noble and supportable ideas about finding legal ways and means of curtailing state impunity for abuses committed against largely defenseless ordinary people. And, as is widely known, there is strong support in international human rights law for the argument that such alleged victims ought to enjoy access to justice and remedies. Thus, the impetus for many of the proposed exceptions (such as those designed to lift state immunity in cases involving terrorism or the commission of certain torts on the territory of the state in which a suit has been brought), is certainly understandable from the perspective and prism of international human rights law.
Problematizing Some Reform Proposals and Asserted Exceptions
Yet, it is also the case that there are other values at stake in assessing the suitability of such asserted exceptions. Two of these values easily come to mind. The first is that the sovereign immunity principle is a fundamental one that lies at the heart/core of international law and relations. After all, par in parem non habet imperium (an equal has no power over an equal).Footnote 18 Such fundamental (even constitutive) norms are not, and ought not be, easily displaced or even denuded, at least not without global consensus. Yet, the proposed exceptions will contribute significantly to the denudation of this norm, with no such global consensus in sight, let alone in place. Only a handful of very powerful states tend to assert them.
The second such value is the now well-established anti-colonial norm. This norm is engaged because the “coloniality quotient” of the exceptions that have been asserted thus far seems unacceptably high. By this is meant that, by unilaterally and self-referentially allocating to a handful of states from the Global North the exercise of a key form of governance power (in this case, judicial power) over the generally much weaker states of the Global South, the proposed exceptions contribute significantly to the reproduction and intensification of “colonial vestiges” in contemporary global relations. That is, they augment significantly the ways in which colonialism sustains itself even in our time despite the so-called freedoms gained by previously colonized or oppressed peoples after their formal de-colonization.Footnote 19 The term “coloniality” also engages the colonial matrix of power that has grounded the exploitation of the Global South and its resources over the last several centuries and up to this day, ensuing from colonialism and continuing to exert influence even in our own time.Footnote 20 The claim here is that the asserted exceptions to the sovereign immunity principle are likely to contribute to the ways in which global power, too often facilitated by international law, tends to unduly and overly assert (framework) authority to govern the Global South. And yet, this is an undulating, morphing, and yet enduring, praxis that many have long shown to be highly problematic and harm producing.Footnote 21
The Necessity for Coloniality Impact Pre-assessments
If this is, as I argue, tends to be an important feature and effect of the asserted exceptions, the question that arises is whether states and international lawyers ought to, consciously and unconsciously, keep asserting exceptions to the state immunity principle that run such a high risk of reproducing and intensifying coloniality in a time of supposed post-coloniality? My own considered view is that they ought not to. At the very least, they ought to be extremely careful not to keep doing so; not to keep contributing to the production of such effects, even if unintended. There is, of course, a need to balance this anti-coloniality imperative against the international human rights law values that motivate many of those who favor such assertions of exceptions to the state immunity principle. Even still, the anti-coloniality value needs to be taken far more seriously than it has so far been in the decision whether or not to assert these kinds of exceptions.Footnote 22
For, coloniality is alive and well in our time and does not belong to some long-forgotten era. As such, as well intentioned as they are, scholars such as Cedric Ryngaert make a serious mistake when they make excessively strong liberal internationalist claims that certain fundamental principles of international law, including its most well established jurisdictional principles, ought not to stand in the way of advancing “the global common good,” and do so while paying insufficient attention to the coloniality that such claims can and do facilitate.Footnote 23 For example, Ryngaert is of the view that Global North states ought to exercise unilateral jurisdiction over Global South states as long as they use the power thus seized or exercised in favor of what he or these states see as the global common good. Such claims are irreparably faulty on many grounds, none the least for wrongly assuming that the global common good is exogenously given and is a fairly simple notion the contents/orientation of which are usually either obvious, or shared alike by the strongest global powers and the weakest subaltern peoples.Footnote 24
What is more, it should not be all that controversial to note that Global South self-governance is also a key (even peremptory) international law and human rights value. It is true, of course, that human rights is no longer, in general, a matter of exclusive domestic concern. However, at the very least UN General Assembly Resolution 1514 (XV) (now part of customary international law) and the UN Declaration on Friendly Relations (adopted by consensus) strongly establish the point being made here. These are important reasons why the conduct of “coloniality impact pre-assessments” ought to become a routine condition for the acceptance of asserted exceptions to the state immunity principle, even in our time.
The Choice Is Not a Binary One
Those concerned about how the argument advanced here might negatively impact access to justice abroad for victims of human rights violations who wish to seek redress against their home states, should rest assured that the choice is not a binary one. There is no sharp choice between either not further denuding the state immunity norm or advancing its weakening through the assertion of the kinds of exceptions already discussed. For one, the reality is that in the living international law, most powerful states and the countries they work hardest to protect already enjoy a significant measure of de facto state immunity, with almost no exceptions—including in cases of the commission of gross or systematic violations of human rights. And so, the weaker a state and its allies are, the more the state immunity principle is actually sorely needed to enable them to enjoy even the limited measure of self-governance that is possible in an interdependent world. And the more powerful a state and its allies are, the less they need the state immunity principle to achieve the same status in international law and society. It is little wonder then that Global South (read: much weaker) states do not tend to assert exceptions to the state immunity principle—at least not unilaterally and self-referentially.
In any case, it is not as if there are no other measures that concerned states can take to advance human rights values that do not involve the denudation of such a fundamental norm of international law as the state immunity principle. Among others, powerful enough states could, for example, impose countermeasures, especially if obligations erga omnes are engaged. They can then negotiate settlements to compensate any victims of the violated norm of international law. Concerned states could also work to set up a Global Fund controlled by independent actors or through a multilateral system (and not by global power as is the case with the Bretton Woods institutions). States parties could then contribute and be strongly encouraged to contribute to this Fund from which the types of victims that the asserted exceptions to state immunity seek to protect would be compensated. Such compensation could be predicated on a positive decision in a victim's favor by the kind of Global Torts Court proposed by Craig Scott in his talk on the panel on which this record of proceedings is based. Although only bilateral, the Iran-U.S. Claims Tribunal illustrates this kind of approach. However, the point here is not so much about the specific viability of any such specific proposals. Rather, it is that alternative frameworks for meeting the human rights-driven concerns of victims of human rights violations around the world are possible.
