Terrorism Exceptions and International Law on State Immunities. Some Reflections in Light of Alleged Violations of State Immunities (Islamic Republic of Iran v Canada)

di Eloisa M.B. Bellucci

SOMMARIO: 1. Introduction. – 1.1. Recent Practice on Terrorism Exceptions. – 2. Terrorism Exceptions’ Litigation Under the Lens of Customary International Law on Jurisdictional Immunities of the State. – 2.1. Terrorism Exceptions and Adjudicative Jurisdiction. – 2.1.1. Terrorism Exceptions as Humanitarian Exceptions. – 2.1.2. Terrorism Exceptions as Territorial Tort Exceptions. – 2.1.3. Terrorism Exceptions and the Counter-limits Doctrine. – 2.2. Terrorism Exceptions and Enforcement Jurisdiction. – 3. Terrorism Exceptions and the Plea of State Immunity for Non-judicial Acts. – 3.1. Terrorism Exceptions Beyond State Immunities. In Brief. – 4. Conclusion.

This paper investigates the legality of terrorism exceptions to State immunities under customary international law. Building upon the Alleged Violations of State Immunities (Islamic Republic of Iran v. Canada) case, it aims to address two questions: (i) whether terrorism exceptions constitute valid derogations from State immunities in judicial proceedings and (ii) whether immunity may be invoked outside litigation, in response to foreign countries’ legislative or administrative measures, such as the adoption of laws introducing terrorism exceptions and the designation of a State as a sponsor of terrorism. It will be argued that terrorism exception-based litigation lacks sufficient grounding in customary international law. It will be further contended that, while immunities strictly apply to adjudicative jurisdiction and post-judgment measures of constraints, the principle of sovereign equality may nevertheless provide a legal basis for challenging non-judicial measures such as the enactment of terrorism exceptions and the designation of a State as a sponsor of terrorism.