De-immunizing Torture: Reconciling Human
Rights and State Immunity
Craig Forcese*
In May 2005, the United Nations Committee
Against Torture expressed its concern at … the absence
of effective measures to provide civil compensation [in
Canada] to victims of torture in all cases. The
committee was responding to a ruling of the Ontario
Court of Appeal holding that the federal State Immunity
Act barred the plaintiff from bringing a civil suit in
Ontario for torture inflicted upon him by, and in, Iran.
The committees views place Canada on the horns of a
dilemma: If Canada relaxes its state immunity law to
allow such lawsuits in order to comply with the
Committee Against Tortures recommendations, it may
run afoul of the international law of state immunity. Yet,
if it persists with its current understanding of state
immunity rules, it will fail to take the steps the
committee views as necessary to comply with the
Torture Convention. This article concludes that state
torturers are not necessarily invulnerable to civil
remedies in the courts of other states. First, while courts
have resisted efforts to de-immunize states themselves,
courts may be able to limit state immunity for officials
engaging in acts of torture. Second, the international
law of countermeasures offers an avenue out of
Canadas dilemma. So long as the prerequisites for
countermeasures are met, international law permits
Canada to limit state immunity for acts of torture. The
to Canadas State
article suggests amendments
Immunity Act that would accomplish exactly this
objective.
En mai 2005, le Comit contre la torture des
Nations Unies exprimait son inquitude vis vis de
labsence au Canada de mesures adquates visant
pourvoir une compensation civile aux victimes de la
torture dans toutes les instances. Le comit ragissait
une dcision de la Cour dAppel de lOntario qui avait
dtermin que, selon les termes de la Loi sur lImmunit
des tats, le requrant ne pouvait entamer une action au
civil en Ontario la suite de tortures subites en Iran.
Lavis du comit met le Canada devant un dilemme :
si le Canada assouplit ses lois sur limmunit de
ltat afin de permettre de telles actions, il se heurtera
peut-tre aux principes de limmunit de ltat en
droit international. Or, si le Canada maintient sa
conception actuelle des rgles de limmunit de
ltat, il narrivera pas prendre les mesures que le
comit juge ncessaires afin de se conformer avec la
Convention contre la torture. Lauteur en conclut
que les tortionnaires la solde dtats ne sont pas
ncessairement labri de sanctions civiles imposes
par les tribunaux trangers. De prime abord, quoique
les tribunaux aient rsist aux atteintes limmunit de
ltat, ils seraient peut-tre en mesure de limiter
limmunit des fonctionnaires ayant pris part la
torture. En second lieu, les rgles de droit international
portant sur les contre-mesures offrent au Canada une
solution possible au dilemme. Lorsque les conditions
des contre-mesures sont satisfaites, le droit international
permettrait au Canada de limiter limmunit tatique en
ce qui a trait la torture. En vue de cet objectif, lauteur
propose certains amendements la Loi sur lImmunit
des tats du Canada.
* Assistant Professor, Faculty of Law, University of Ottawa, Canada. B.A. (McGill), M.A.
(Carleton), LL.B. (Ottawa), LL.M. (Yale); of the bars of New York, the District of Columbia, and
Ontario. The author would like to thank the Social Science Humanities and Research Council and the
Law Foundation of Ontario for their support of his research. The author also expresses his sincere
thanks to the editorial team at the McGill Law Journal for their careful work in finalizing this article
for publication.
Craig Forcese 2007
To be cited as: (2007) 52 McGill L.J. 127
Mode de rfrence : (2007) 52 R.D. McGill 127
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Introduction
I. The Concept of State Immunity
A. Sovereignty and Jurisdiction
B. Overview of State Immunity
1. Definition
2. Justifications
II. Scope of State Immunity
A. Immunity Ratione Personae
B. Immunity Ratione Materiae
1. Definition
2. Scope of Agency
a. Strict Application
b. Tempered Application
c. Tempered Application in Response to Competing
International Norms
III. Exceptions to State Immunity
A. Waiver
B. Broadly Accepted Subject-Matter Exceptions
C. Human Rights Exceptions to State Immunity
1. Right to Civil Redress Under the Torture Convention
2. Civil Redress for Torture and State Immunity
3. Bouzari v. Iran
4. The UN Committee Against Torture
D. Reconciling Human Rights and State Immunity
1. The Obstacles
2. A Possible Solution
Conclusion
2007]
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Introduction
In May 2005, the United Nations Committee Against Torture placed Canada on
the horns of a dilemma. In its fifth report on Canadas compliance with the UN
Torture Convention,1 the committee expressed its concern at … [t]he absence of
effective measures to provide civil compensation to victims of torture in all cases,2
an obligation under article 14 of the treaty. While the committee did not expressly
identify the case in its report, it was clearly responding to Bouzari v. Iran,3 a recent
ruling of the Ontario Court of Appeal. In that case, the appeal court held that the
federal State Immunity Act4 barred the plaintiff from bringing a civil suit in Ontario
for torture inflicted upon him by, and in, Iran.
The State Immunity Act codifies the international legal doctrine of the same name.
At international law, the courts of one sovereign state have no competence to judge
the actions of another sovereign state. This doctrine was recently affirmed by the
International Court of Justice (ICJ) in Congo v. Belgium.5 In that matter, the ICJ
held that state immunity barred prosecution in one countrys courts of a high official
of another country, even when the charges concerned crimes against humanity. Yet, in
its assessment of Canadas compliance with the Torture Convention, the Committee
Against Torture manifested no sympathy for state immunity. The concept went
unmentioned in its conclusions in its report, which stated that Canada should review
its position under article 14 of the Convention to ensure the provision of
compensation through its civil jurisdiction to all victims of torture.6
This wording is opaque. The committee does not squarely call upon the
government of Canada to relax state immunity in cases of alleged torture. The
implications of its conclusions are obvious, however, given the context in which they
were issued. Insofar as the committee is concerned, Canadas obligations under the
Torture Convention include the provision of civil remedies against torturers, even
foreign torturing states.
1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, 1465 U.N.T.S. 113, U.K.T.S. 1991 No. 117 (entered into force 26 June 1987)
[Torture Convention].
2 Conclusions and recommendations of the Committee against Torture: Canada, UN CAT, 34th
Sess., UN Doc. CAT/C/CR/34/CAN (July 2005) at 2-3 [mimeo.] [Committee Against Torture
Conclusions].
3 (2004), 71 O.R. (3d) 675, 243 D.L.R. (4th) 406 (C.A.) [Bouzari (C.A.) cited to O.R.], affg [2002]
O.J. No. 1624 (QL), 114 A.C.W.S. (3d) 57 (Sup. Ct.) [Bouzari (Sup. Ct.)], leave to appeal to S.C.C.
refused, [2005] 1 S.C.R. vi [Bouzari (S.C.C.)].
4 R.S.C. 1985, c. S-18.
5 Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), [2002] I.C.J. Rep. 3 at para. 51, 41 I.L.M. 536 [Congo v. Belgium cited to I.C.J. Rep.].
6 Supra note 2 at 4.
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Canadas dilemma is as follows: If it relaxes its state immunity law to allow such
lawsuits in order to comply with the Committee Against Tortures recommendations,
it may run afoul of the international law of state immunity. Yet, if it persists with its
current understanding of state immunity rules, it will fail to take the steps the
committee views as necessary to comply with the Torture Convention. This is no
small conundrum. On the one hand, torture is a horrific, unprincipled practice for
which recompense should be extracted. On the other hand, state immunity is the oil
that lubricates international relations. If national courts were empowered to judge
other states (and seize their local assets), the resulting tit-for-tat could impair
diplomatic relations and exacerbate international tensions. For this reason, state
immunity is a robust principle of international law, binding on Canada.
This article addresses Canadas dilemma. Part I briefly defines state immunity,
situating it within the concept of state sovereignty and identifying popular
justifications for its existence. Part II examines the scope of state immunity, focusing
on its two subcategories: immunity ratione personae (immunity by reason of the
person) and immunity ratione materiae (immunity by reason of the matter). In
relation to the latter category, this part focuses particular attention on the question of
state agency and human rights abuses. Finally, Part III examines exceptions to state
immunity, both those that have received ready acceptance and, more controversially, a
putative exception for human rights violations. This part pays particular attention to
Bouzari (C.A.) and similar cases, and to the Committee Against Tortures position.
This article concludes that international courts examining the issue and courts in
Canada, the United Kingdom, and the United States asked to apply state immunity
have been unwilling to limit state immunity on a human rights theory. Most notably,
they have rejected arguments that the Torture Convention compels such a limitation.
From this conclusion, however, it does not follow that state torturers are necessarily
invulnerable to civil remedies in the courts of other states. Specifically, the
international law of countermeasures offers an avenue out of the dilemma posed by the
Committee Against Tortures criticism of Canada. So long as the prerequisites for
countermeasures are met, international law permits Canada to limit state immunity for
acts of torture that violate obligations owed to Canada as a member of the international
community and as a party to the Torture Convention. This article suggests amendments
to Canadas State Immunity Act that would accomplish exactly this objective.
I. The Concept of State Immunity
A. Sovereignty and Jurisdiction
State sovereignty is the cornerstone of international law.7 In simple terms, it is the
right to exercise in relation to a states territory the functions of a state, independently
7 See e.g. Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, art. 2(1), 59 Stat. 1031
(the United Nations is based on the principle of the sovereign equality of all its Members).
131
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of any other state.8 The principle of non-intervention in the sovereign affairs of states
is a concept reflected in the UN General Assemblys influential Declaration on
Principles of International Law concerning Friendly Relations and Co-operation.
This instrument declares that [e]very State has an inalienable right to choose its
political, economic, social and cultural systems, without interference in any form by
another State, and that [n]o State or group of States has the right to intervene,
directly or indirectly, for any reason whatever, in the internal or external affairs of any
other State.9
Sovereignty is a meaningless concept if it does not include the right to exercise
independent legislative, judicial, and executive authority over state territory. A
necessary expression of sovereignty is thus the exercise of jurisdiction over people,
events, and things found or occurring within the territory of the state. The scope of
this jurisdiction and the manner in which state power may be exercised even within
state territories are matters constrained by other doctrines of international law.
Modern international human rights law, for instance, precludes acts by states that
violate human rights guarantees, even acts on the states own territory and in relation
to its own nationals.10
Other considerations closely tied to the concept of sovereignty also limit state
jurisdiction. The modern world is not a checkerboard of hermetically sealed states.
States, for instance, send diplomats and consular officials abroad, facilitating peaceful
international relations. Since the early days of international law, these emissaries have
enjoyed immunity from the jurisdiction of the states to which they are accredited, a
principle now codified in the Vienna Convention on Diplomatic Relations11 and the
Vienna Convention on Consular Relations.12
Further, diplomats and consuls do not constitute the only state presence in other
states. To facilitate diplomatic exchanges or for other reasons, state agencies and
branches often conduct affairs or own property in the territory of another state.
Meanwhile, heads of state and governments, foreign and other ministers, and more
9 Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN
GAOR, 25th Sess., Supp. No. 28, UN Doc. A/RES/2625 (XXV) 121 at 123 [Declaration on Friendly
Relations]. While not binding in its own right, the declaration elaborates the major principles of
international law in the UN Charter, particularly on use of force, dispute settlement, nonintervention in
domestic affairs, self-determination, duties of cooperation and observance of obligations, and
sovereign equality. … [I]t has become the international lawyers favorite example of an authoritative
UN resolution (Oscar Schachter, United Nations Law (1994) 88 A.J.I.L. 1 at 3).
10 See especially International Covenant on Civil and Political Rights, 19 December 1966, 999
U.N.T.S. 171, art. 2, Can. T.S. 1976 No. 47 (entered into force 23 March 1976).
11 18 April 1961, 500 U.N.T.S. 95, arts. 29, 23, U.S.T. 3227 (entered into force 24 April 1964).
12 24 April 1963, 596 U.N.T.S. 261, art. 41, Can. T.S. 1974 No. 25 (entered into force 19 March
8 See Island of Palmas Case (Netherlands v. United States) (1928), 2 R.I.A.A. 829 at 838
(Permanent Court of Arbitration).
1967).
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junior officials regularly interact with their counterparts in the territory of another
state. They do so confident that they are generally not amenable to judicial
proceedings in the courts of that state by virtue of another doctrine of international
law: state immunity.
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B. Overview of State Immunity
1. Definition
State immunity prevents a foreign State being made party to a suit … and thereby
prevents the subjection of an independent State to proceedings in another country
relating to a dispute about its exercise of governmental power.13 As Lord Browne-
Wilkinson observed in his speech in the U.K. House of Lords Pinochet decision, It
is a basic principle of international law that one sovereign state (the forum state) does
not adjudicate on the conduct of a foreign state. The foreign state is entitled to
procedural immunity from the processes of the forum state. This immunity extends to
both criminal and civil liability.14
While state immunity flows from customary international law,15 it has recently
been the subject of codification efforts. In 1977, the UN General Assembly charged
the International Law Commission (ILC)the UNs international law codification
bodywith compiling draft articles of the law of state immunity.16 The product of
this work was a draft Convention on Jurisdictional Immunities of States and Their
Property, which was adopted by the General Assembly in 200417 and opened for
signature by states in 2005. The Immunities Convention will come into force when
ratified by thirty states.
Subject to certain exceptions discussed below, the Immunities Convention
extends immunity to a State and its property from the jurisdiction of the courts of
another State.18 For this reason, each state must refrain from exercising jurisdiction
in a proceeding before its courts against another State and to that end shall ensure that
13 Hazel Fox, The Law of State Immunity (Oxford: Oxford University Press, 2002) at 11.
14 R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3) (1999),
[2000] 1 A.C. 147, [1999] 2 All E.R. 97 at 111, [1999] 2 W.L.R. 827 (H.L.) [Pinochet cited to All
E.R.].
15 See Report of the International Law Commission on the work of its thirty-second session, UN
GAOR, 35th Sess., Supp. No. 10, UN Doc. A/35/10 (1980) (in the general practice of States as
evidence of customary law, there is little doubt that a general rule of State immunity has been firmly
established as a norm of customary international law at 344).
16 Report of the International Law Commission, GA Res. 32/151, UN GAOR, 32d Sess., Supp. No.
45, UN Doc. A/RES/32/151 (1977) 214.
17 United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res.
59/38, UN Doc. A/RES/59/38 (December 2004) [mimeo.] [Immunities Convention].
18 Ibid., art. 2.
C. FORCESE DE-IMMUNIZING TORTURE
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its courts determine on their own initiative that the immunity of that other State … is
respected.19
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2. Justifications
Several justifications exist for state immunity. Among the most important is the
principle of sovereign equality. Sovereign equality means that whatever its military or
economic power, no state has legal primacy over another.20 In this universe of equally
sovereign entities, the courts of one state are in no position to adjudicate the liabilities
of another state. As the Supreme Court of Canada has observed, An equal has no
authority over an equal in public international law.21 An early expression of this
doctrine was articulated by the U.S. Supreme Court in The Schooner Exchange v.
McFaddon: One sovereign being in no respect amenable to another … by placing
himself or its sovereign rights within the jurisdiction of another, can be supposed to
enter a foreign territory only … in the confidence that the immunities belonging to his
independent sovereign station … are reserved … and will be extended to him.22
State immunity is sometimes defended on a more prosaic basis. Commentators
have suggested that the practical impossibility of enforcing judgments against foreign
states justifies state immunity.23 After all, the foreign states assets are generally
located outside the forum state. That said, there are instances where the foreign states
agents and assets are within the physical jurisdiction of the forum state. For this
reason, it is now a regular practice for a state imposing economic sanctions on
another state to freeze the latters assets located within the territory or jurisdiction of
the sanctioning state.
The occasional prospect of attachment of foreign state assets, however, is usually
tempered by political considerations.24 For one state to impose economic sanctions on
19 Ibid., art. 6.
20 See e.g. Declaration on Friendly Relations, supra note 9 (sovereign equality includes the
following elements: … States are juridically equal at 124).
21 Schreiber v. Canada, 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 13, 216 D.L.R. (4th) 513
[Schreiber].
22 11 U.S. (7 Cranch) 116 at 136 (1812). See also Athabasca Chipewyan First Nation v. Canada
(Minister of Indian Affairs and Northern Development), 2001 ABCA 112, 281 A.R. 38, 199 D.L.R.
(4th) 452 (The rationale for sovereign immunity is that, since states are equal, one cannot exercise
jurisdiction over another at para. 45). Some courts have also invoked international comity as a
justification for immunity. See e.g. Dole Food v. Patrickson, where the U.S. Supreme Court held that
[f]oreign sovereign immunity … is not meant to avoid chilling foreign states or their instrumentalities
in the conduct of their business but to give foreign states and their instrumentalities some protection
from the inconvenience of suit as a gesture of comity between the United States and other sovereigns
(538 U.S. 468 at 479 (2003)).
23 See discussion in Fox, supra note 13 at 28ff.
24 The United States, for example, has urged its allies to respond to Irans nuclear ambitions by
imposing economic sanctions, including freezing Iranian assets held in U.S. and European financial
accounts. Such a move, however, would mark a shift toward economic coercion and away from
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another is a significant rupture of normal international relations and a matter of high
politics. States are generally loath to see de facto sanctions imposed via domestic
execution of judgments issued by their courts. Sensitivity on this point has prompted
the evolution in common law jurisdictions of the act-of-state doctrine. Closely related
to the international state immunity concept, the act-of-state doctrine extends
deference to the executive branch in the conduct of foreign affairs by discouraging, if
not outright precluding, courts from adjudicating the legitimacy of a foreign act.25
[Vol. 52
diplomatic efforts to persuade Iran to abandon its nuclear program. It could also jeopardize the
willingness of Iran to sell oil to sanctioning nations. These political considerations have muted the
enthusiasm among other states for the U.S. plan. See e.g. Dafna Linzer, U.S. Urges Financial
Sanctions on Iran Washington Post (29 May 2006) A01.
25 See e.g. Underhill v. Hernandez, in which the U.S. Supreme Court described the act-of-state
doctrine as follows:
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 (168 U.S. 250 at 252 (1897)).
The act-of-state doctrine is not a jurisdictional limitation so much as a prudential doctrine designed to
avoid judicial action in sensitive areas (International Association of Machinists and Aerospace
Workers v. Organization of the Petroleum Exporting Countries, 649 F.2d 1354 at 1359 (9th Cir. 1981),
cert. denied, 454 U.S. 1163 (1982)). In the United States, the doctrine has a constitutional dimension,
stemming from separation of powers considerations and judicial deference to the primary role of the
President and Congress in [the] resolution of political conflict and the adoption of foreign policy
(ibid.). See also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 at 423 (1964). Courts in the
United Kingdom have adopted a similar principle, sometimes labelled non-justiciability. See
Malcolm Shaw, International Law, 5th ed. (Cambridge, U.K.: Cambridge University Press, 2003) at
162ff. See also Kuwait Airways v. Iraqi Airways, [2002] UKHL 19, [2002] 2 A.C. 883, [2002] 3 All
E.R. 209 [Kuwait Airways cited to All E.R.], in which Lord Hope of Craighead noted that
[t]here 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. The rule gives effect to a policy of judicial restraint or abstention
(ibid. at para. 135).
For a critique of the act-of-state jurisprudence, with a particular eye to the torture issue, see Martin
Bhler, The Emperors New Clothes: Defabricating the Myth of Act of State in Anglo-Canadian
Law in Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of
Transnational Human Rights Litigation (Oxford: Hart, 2001) 343. Bhler concludes from a review of
the case law that Anglo-Canadian courts can and should examine … foreign laws and actions for
formal validity within the foreign legal system and be alert to the possibility that public policy,
informed by the norms and principles of public international law, may require that no effect be given
to certain foreign laws and actions (ibid. at 370). The House of Lords came to exactly this conclusion
in Kuwait Airways v. Iraqi Airways, [1995] 3 All E.R. 694, [1995] 1 W.L.R. 1147, [1995] 2 Lloyds
L.R. 317 (H.L.) [Iraqi Airways cited to All E.R.].
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A related practical justification for state immunity is simple reciprocity. Were a
state to ignore the dictates of state immunity, it might precipitate a like response from
other states, placing its own overseas assets and officials at risk of seizure. Tit-for-tat
retaliation of this sort would obviously impair international diplomacy.26
Read together, these justifications support a strong doctrine of state immunity that
countenances few, if any, exceptions. Yet, exceptions and limitations do exist, in part
as a function of the difficulty in defining the state that is subject to state immunity.
135
II. Scope of State Immunity
The definition of State in the Immunities Convention includes the State and its
various organs of government, constituent units of a federal State or political
subdivisions of the State, and its agencies.27 The state as corporate entity is therefore
prima facie entitled to immunity. This interpretation was affirmed by the ILCs
commentaries to the draft convention.28
In addition, the Immunities Convention is not intended to replace fully customary
international rules of state immunity, including certain customary immunities
accorded to certain state officials. In drafting the convention, the ILC clearly
conflated State with senior state officials.29 Moreover, by its own terms the
convention is without prejudice to privileges and immunities accorded under
international law to heads of State ratione personae.30
26 The political justification for state immunity has been noted by several courts. See e.g. Al-Adsani
v. The United Kingdom [GC], no. 35763/97, [2001] XI E.C.H.R. 79, 34 E.H.R.R. 273 [Al-Adsani
(E.C.H.R.) cited to E.C.H.R.] (the grant of sovereign immunity to a State in civil proceedings pursues
the legitimate aim of complying with international law to promote comity and good relations between
States through the respect of another States sovereignty at para. 54 [emphasis added]); Controller
and Auditor-General v. Davison, [1996] 2 N.Z.L.R. 278, [1996] N.Z.A.R. 145 (C.A.) [Controller and
Auditor-General cited to N.Z.L.R.] (Public policy justifications for allowing a degree of immunity
for foreign states and their agencies from the jurisdiction of domestic Courts derive from general
principles of territorial sovereignty, the equality and independence of states, notions of comity and
reciprocity and an assessment of the risk to foreign relations of excessive claims to jurisdiction at
300, Richardson J. [emphasis added]).
27 Supra note 17, art. 2(1)(b).
28 Report of the International Law Commission on the work of its forty-third session, UN GAOR,
46th Sess., Supp. No. 10, UN Doc. A/46/10 (1991) [ILC Commentary on Draft Articles] (State
includes the State itself, acting in its own name and through its various organs of government,
however designated … at 15).
29 [S]overeigns and heads of State in their public capacity and [o]ther representatives includ[ing]
heads of Government, heads of ministerial departments, ambassadors, heads of mission, diplomatic
agents and consular officers, in their representative capacity fall within the definition of State (ibid.
at 18).
30 Supra note 17, art. 3(2). The ILC envisaged this reservation as preserving customary international
law that extends immunity to sovereigns or other heads of state acting in their private capacity (ILC
Commentary on Draft Articles, supra note 28 at 22).
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A. Immunity Ratione Personae
The precise scope of customary immunity ratione personae was at issue in a
recent ICJ decision, Congo v. Belgium.31 There, the ICJ declared that efforts by
Belgium to secure the arrest of the Congolese foreign minister for crimes against
humanity transgressed the immunity accorded him by virtue of his high office in
another state. The court noted that in international law it is firmly established that, as
also diplomatic and consular agents, certain holders of high-ranking office in a State,
such as the Head of State, Head of Government and Minister for Foreign Affairs,
enjoy immunities from jurisdiction in other States, both civil and criminal.32
Discussing foreign ministers specifically, the court reasoned that this immunity
protects the official against any act of authority of another State which would hinder
him or her in the performance of his or her duties, including criminal proceedings.33
The scope of the immunity is sweeping:
[N]o distinction can be drawn between acts performed by a Minister for
Foreign Affairs in an official capacity, and those claimed to have been
performed in a private capacity, or, for that matter, between acts performed
before the person concerned assumed office as Minister for Foreign Affairs and
acts committed during the period of office.34
The court concluded that immunity of this sort ceases once the foreign minister leaves
office; it is time limited, in other words.35 However, where a current foreign minister
is sought for acts undertaken while (or even before becoming) a minister, his or her
functions as a high representative of a state (often requiring international travel)
would be impeded unless he or she is protected by an absolute immunity that extends
to alleged war crimes and crimes against humanity.36
31 Supra note 5.
32 Ibid. at para. 51. Note, however, the narrower interpretation of state immunity ratione personae
offered by Lord Millett in Pinochet, which limits personal immunity to heads of state: It is not
available to serving heads of government who are not also heads of state, military commanders and
those in charge of the security forces, or their subordinates. It would have been available to Hitler but
not to Mussolini or Tojo (supra note 14 at 171).
33 Congo v. Belgium, ibid. at para. 54.
34 Ibid. at para. 55.
35 Ibid. at para. 61. See also Jurisdictional Immunities of States and Their Property, which noted
that with immunity ratione personae, immunities follow the person of the head of State only so long
as he remains in office. Once he is divested of that office and becomes an ex-sovereign or ex-head of
State, he may be sued like any ex-ambassador for all the personal acts performed during his office that
were unconnected with the official functions … ((UN Doc. A/CN.4/388) in Yearbook of the
International Law Commission 1985, vol. 2, part 1 (New York: UN, 1987) at 44 (UN Doc.
A/CN.4/SER.A/1985/Add.1 (Part 1)) [ILC 1985]). As this passage suggests, high officials will
continue to enjoy immunity in relation to acts committed during their tenure in their official capacity,
a result necessarily flowing from the immunity ratione materiae discussed in Part II.B, below.
36 Congo v. Belgium, ibid. at para. 55ff. Notably, the ICJs approach to immunity ratione personae
built on customary lawis more sweeping than that discussed by the ILC in developing the
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The functional reason for state immunity ratione personae echoes the
justification for diplomatic and consular immunity: [T]he purpose of such privileges
and immunities is not to benefit individuals but to ensure the efficient performance of
the functions of diplomatic missions as representing States.37 This rationale provides,
however, an uncertain limit on the concepts scope. Heads of state, heads of
government, and foreign ministers have a presumptive capacity to bind their states in
international law, justifying their immunity.38 In modern international relations,
however, other high state officials, such as ministers of finance, may enter into
international negotiations and may, in certain venues, speak for their states. Whether
these officials are also accorded immunity ratione personae appears unsettled in
customary law.39
Immunities Convention. The ILCs early analysis of immunity ratione personae emphasized that a
head of states immunity for personal actions was not absolute and did not extend to a proceeding
relating to private immovable property situated in the territory of the State of the forum or to a
proceeding relating to any professional or commercial activity outside his sovereign or governmental
functions (ILC 1985, ibid. at 45).
37 Vienna Convention on Diplomatic Relations, supra note 11 at 96. See also Vienna Convention on
Consular Relations, which contains nearly identical language in relation to consular officials: [T]he
purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of their respective States (supra note 12 at
262).
38 See Fox, supra note 13 (The recognition of a head of State as the prime representative of his
State in international law provides the justification for affording the holder of that office immunities
before the national courts of other States at 426-27). The power to bind the state is readily recognized
in international law. See e.g. Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) [1996] I.C.J. Rep. 595 (According to
international law, there is no doubt that every Head of State is presumed to be able to act on behalf of
the State in its international relations at para. 44); Vienna Convention on the Law of Treaties, which
reads:
7(2) In virtue of their functions and without having to produce full powers [i.e.,
official documents according them powers to represent the state], the following are
considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs,
for the purpose of performing all acts relating to the conclusion of a treaty (23 May
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980)).
39 See Fox, ibid. (It remains to be seen whether other ministers, by reason of representing and
committing their States in respect of major international obligations, will also be recognized as
enjoying such a privileged status at 423). The Immunities Convention, supra note 17, speaks of
ratione personae only in relation to heads of state. The ILC, in its commentaries on the draft
convention, acknowledged that such immunity could extend beyond heads of state, but declined to list
the other high officials entitled to this privilege, largely because of the difficulty in doing so (ILC
Commentary on Draft Articles, supra note 28 at 22). In a 2001 resolution, the Institut de droit
international left open this question, specifying that provisions in the resolution endorsing state
immunity for heads of government were without prejudice to such immunities to which other
members of the government may be entitled on account of their official functions (Immunities from
Jurisdiction and Execution of Heads of State and of Government in International Law (2000-2001) 69
Ann. inst. dr. int. 742, art. 15(2)).
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B. Immunity Ratione Materiae
In practice, uncertainty over the scope of immunity ratione personae may have
little significance. All ministers, like all government officials, may be insulated from
judicial process in a foreign state by a second species of immunity: immunity ratione
materiae.
1. Definition
While immunity ratione personae protects an individual personifying [the]
state from being impleaded in a foreign lawsuit,40 immunity ratione materiae allows
the state to extend the cloak of its own immunity to lesser officials sued for
conducting its affairs.41
Immunity ratione materiae was scrutinized most famously in the U.K. House of
Lords Pinochet decision. At issue was whether Chiles former dictator, Augusto
Pinochet, enjoyed state immunity from prosecution for, inter alia, torture committed
during his tenure as head of state. The Law Lords concluded that though a former
head of state enjoys no immunity ratione personae, he or she may continue to enjoy
immunity ratione materiae (i.e., immunity in relation to acts done as part of his
official functions when head of state).42 This subject-matter immunity applies not
only to ex-heads of state … but to all state officials who have been involved in
carrying out the functions of the state.43
This immunity ratione materiae of government officials before at least civil
courts is anticipated by the Immunities Convention. The definition of State in that
instrument supplements the list of corporate state entities with representatives of the
State acting in that capacity.44 Notably, domestic enactments of state immunity are
less extensive. Canadas State Immunity Act extends to a foreign state, defined as
any sovereign or other head of the foreign state … while acting as such in a public
capacity, that states government, or any political subdivision of the state.45 Lower
officials are not explicitly identified as attracting immunity. Nevertheless, in Jaffe v.
40 Jones v. Ministry of Interior of Saudi Arabia, [2004] EWCA Civ 1394, [2005] Q.B. 699 at para.
104 [Jones (C.A.)], revd [2006] UKHL 26, [2006] 2 W.L.R. 1424 [Jones (H.L.)].
41 Jones (C.A.), ibid. at para. 105.
42 Supra note 14 at 113, Lord Browne-Wilkinson. In another relevant section, Lord Goff of
Chieveley noted that a head of state will, … at international law, enjoy state immunity ratione
personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant
immunity ratione materiae in respect of acts performed [by him] in the exercise of his functions [as
head of state] (ibid. at 119), citing Sir Arthur Watts, The Legal Position in International Law of
Heads of States, Heads of Governments and Foreign Ministers (1994) 247 Rec. des Cours 8 at 56.
43 Ibid. at 114.
44 Supra note 17, art. 2(1)(b)(iv). The ILC regarded the reference to representative capacity as
intended to clarify that such immunities are accorded … ratione materiae (ILC Commentary on
Draft Articles, supra note 28 at 18).
45 Supra note 4, s. 2.
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Miller, the Ontario Court of Appeal interpreted the State Immunity Act as extending
immunity to officials acting within the scope of their duties as functionaries of the
State.46 To conclude otherwise would vitiate the protections offered the state itself:
[A] plaintiff would have only to sue the functionaries who performed the acts. In the
event that the plaintiff recovered judgment, the foreign state would have to respond to
it by indemnifying its functionaries, thus, through this indirect route, losing the
immunity conferred on it by the Act.47
139
2. Scope of Agency
Both Jaffe and the language in the Immunities Convention limit the scope of
immunity for individual state agents to circumstances where they are acting in an
official capacity or scope. This approach was echoed in Pinochet. For Lord Millett,
immunity ratione materiae is immunity available to any state official from the civil
and criminal jurisdiction of foreign national courts, but only in respect of
governmental or official acts.48 Language from some of the other Law Lords in that
46 (1993), 13 O.R. (3d) 745 at 759, 103 D.L.R. (4th) 315 (C.A.) [Jaffe cited to O.R.].
47 Ibid. The English Court of Appeal followed Jaffe in relation to the State Immunity Act 1978
(U.K.), 1978, c. 33 in Propend Finance Pty Ltd. v. Sing, where it noted that
[t]he protection afforded by the Act of 1978 to States would be undermined if
employees, officers (or as one authority puts it, functionaries) could be sued as
individuals for matters of State conduct in respect of which the State they were serving
had immunity. Section 14(1) [which defines the scope of immunity in the U.K. act]
must be read as affording to individual employees or officers of a foreign State
protection under the same cloak as protects the State itself ((1997), 111 I.L.R. 611 at
669 (C.A.)).
The American jurisprudence under the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. 1602
(2000) [FSIA] is more divided. Many courts have extended sovereign immunity to officials. See e.g.
Herbage v. Meese, 747 F. Supp. 60 (D.C. 1990) [Herbage] (holding that [n]owhere does the FSIA
discuss the liability or role of natural persons, whether governmental officials or private citizens.
Nonetheless, … the sovereign immunity granted in the FSIA does extend to natural persons acting as
agents of the sovereign at 66); Chuidian v. Philippine National Bank, 912 F.2d 1095 at 1100-103 (9th
Cir. 1990) [Chuidian] (holding that the FSIA grants immunity to lower foreign government officials
for acts committed in their official capacity); Re Estate of Ferdinand E. Marcos Human Rights
Litigation, 978 F.2d 493 at 496 (9th Cir. 1992), cert. denied, Marcos-Manotoc v. Trajano, 508 U.S.
972 (1993); El-Fadl v. Central Bank of Jordan, 75 F.3d 668 at 671 (D.C. Cir. 1996); Byrd v.
Corporacion Forestal y Industrial de Olancho S. A., 182 F.3d 380 at 388 (5th Cir. 1999) [Byrd]. But
see Tachiona v. United States, 386 F.3d 205, 221 (2d Cir. 2004) (suggesting, without holding, that
perhaps the U.S. law does not extend to individuals). In Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004), the
court concluded that as the FSIA did not emphatically mention heads of state, any head-of-state
immunity had to flow from a source other than the act (at 625). The court in Enahoro v. Abubakar,
408 F.3d 877 (7th Cir. 2005) concluded that as the FSIA did not expressly mention heads of state and
thus included no head of state immunity, logically it could not extend such to lesser officials (at 881).
48 Supra note 14 at 171 [emphasis added].
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case suggests that the focus should be on whether the officials conduct was engaged
in under colour of or in ostensible exercise of the [officials] public authority.49
This approach creates an inevitable paradox. The purpose of sovereign immunity
is to preclude the courts of one state from adjudicating the legality of actions taken by
officials of another state. And yet the parameters of state immunity ratione materiae
are established with reference to whether that foreign official acted officially. The
only way this analysis can be completed is by considering the scope of the foreign
officials legal mandate, most logically under the law of the foreign state. A close
review of the case law of the United Kingdom, Canada, and the United States reveals
a jurisprudence that weaves an uncertain path in its approach to immunity ratione
materiae, perhaps reflecting an unconscious response to this paradox.
a. Strict Application
Some jurists have urged that in assessing the scope of immunity ratione materiae,
even illegality under the law of the foreign officials state is irrelevant. As Lord
Millett put it in his speech in Pinochet, The immunity is available whether the acts
in question are illegal or unconstitutional or otherwise unauthorised under the
internal law of the state, since the whole purpose of state immunity is to prevent the
legality of such acts from being adjudicated upon in the municipal courts of a foreign
state.50
Lord Milletts position honours the ultimate rationale of state immunity, but does
so at the expense of a clear understanding of the reach of immunity ratione materiae.
It is not immediately clear how a willingness to extend immunity even to acts that are
illegal under the foreign states laws can be reconciled with the very definition of
state immunity ratione materiae: immunity where state agents act in their official
capacity or scope. Certainly, there are instances where an official clearly acts in a
private capacity, such as while driving home from work or while on vacation. Other
than these and similar off-duty scenarios, however, it is difficult to imagine an act
by an official that would not attract immunity if Lord Millett is correct. Since even
domestic illegality is no bar to immunity, an act an official is able to accomplish
because of his or her official position, no matter how perverse and no matter how
ultra vires his or her domestic legal authority, putatively attracts immunity. An official
in the finance ministry with official access to state funds, for example, acts in an
49 Ibid. at 119, Lord Goff of Chieveley, dissenting, citing Watts, supra note 42.
50 Ibid. at 172 [emphasis added]. In the same case, Lord Phillips of Worth Matravers noted that
[i]t is contended on behalf of the respondent that the question of whether an official is
acting in a public capacity does not depend upon whether he is acting within the law of
the state on whose behalf he purports to act, or even within the limits of international
law. His conduct in an official capacity will, whether lawful or unlawful, be conduct of
the state and the state will be entitled to assert immunity in respect of it. In the field of
civil litigation these propositions are supported by authority (ibid. at 187).
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official capacity in ordering those funds to be placed in a Swiss bank account even if
the officials objective is to defraud his or her government in violation of domestic
law.51
Despite its evident difficulties, this strict position finds some support in the
jurisprudence. In Jaffe, the Ontario Court of Appeal concluded that functionaries of a
foreign state, whether acting legally or illegally [under the law of their state,] …
attract immunity in the same way as the state itself.52 Applying the U.S. Foreign
Sovereign Immunities Act,53 the U.S. District Court for the District of Columbia
asserted a similar rule: where the activity complained of is governmental in nature
and performed by officials of that government, this Court does not have jurisdiction
over a foreign sovereign … no matter how heinous the alleged illegalities.54
More recently, the strict approach was adopted in 2006 by the House of Lords in
Jones (H.L.): International law does not require, as a condition of a states
entitlement to claim immunity for the conduct of its servant or agent, that the latter
should have been acting in accordance with his instructions or authority.55 The
House of Lords was content to extend immunity so long as there was a sufficient
connection between the functionarys action and the state: functionaries must act in
discharge or purported discharge of their public duties.56 The Law Lords saw
nothing in the particular facts of the caseacts of torture in violation of international
lawthat would change their view. Indeed, they pointed to the definition of torture in
the Torture Convention to bolster their conclusion that the torturing individuals were
wrapped in the blanket of state immunity. That definition depends on the acts of pain
or suffering being inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.57
Claimants were therefore confronted with a paradox: [T]o bring themselves within
the Torture Convention they must show that the torture was … official; yet they argue
that the conduct was not official in order to defeat the claim to immunity.58
51 See e.g. Jones (C.A.), supra note 40 (Where a state official infringes the law of the state in the
course of carrying out the business of the state, the state is not thereby precluded from claiming
immunity ratione materiae at para. 106).
52 Supra note 46 at 760.
53 Supra note 47.
54 Herbage, supra note 47 at 67.
55 Supra note 40 at para. 12.
56 Ibid. at para. 11.
57 Torture Convention, supra note 1, art. 1.
58 Jones (H.L.), supra note 40 at para. 19. Of course, that same paradox existed in Pinochet,
discussed below at Part II.B.2.c, where the House of Lords rejected the extension of ratione materiae
immunity to torturing officials in the criminal context. Lord Hoffman concluded in Jones (H.L.),
however, that the paradox was immaterial in Pinochet because the Torture Convention had, by
necessary implication, removed immunity for criminal proceedings by criminalizing official torture
(ibid. at paras. 80-81). See also Lord Bingham, ibid. at para. 32, who also notes the important
distinction between criminal and civil proceedings.
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However, this paradox exists only where one applies the strict approach of
extending immunity to functionaries for any acts in discharge or purported discharge
of their public duties,59 no matter how ultra vires. A more tempered approach that
denies state immunity where the officials acts lie beyond his or her legal mandate
obviates the paradox: the acts are still those of a public official, and thus torture
within the meaning of the Torture Convention, but they are so far outside the
permissible limit of the officials agency that they are denied immunity. The Torture
Convention does not demand that the officials actions be intra vires or duly and
legally authorized to constitute torture. Indeed, if it did, torture would be defined out
of existence, since few are the states that unabashedly authorize torture. Under a
tempered approach to immunity ratione materiae, therefore, few would be the
officials cloaked in immunity for acts of torture. As the following section outlines,
such a tempered approach has been applied in some cases.
b. Tempered Application
Several U.S. federal courts of appeals have repeatedly refused to extend the
protections of the FSIA where a foreign government official transgresses limits on his
or her power imposed by a foreign statute. To this end, the Ninth Circuit has applied
earlier Supreme Court language to the context of the FSIA: [W]here the officers
powers are limited by statute, his actions beyond those limitations are considered
individual and not sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do … 60 At first blush, this ultra vires analysis is
simply the inverse of the Jones (H.L.) doctrine: it provides certainty on the scope of
immunity ratione materiae, but only by empowering courts to probe foreign
illegalities. Nevertheless, several justifications exist for the U.S. approach. First, and
most evidently, any doctrine of state immunity that by definition extends only to
officials acting officially must include rules on what it means to act officially.
Second, U.S. courts have noted that officials per se are not named as immunity-
bearing entities in the FSIA (an omission replicated in the Canadian and U.K.
statutes). The extension of immunity to these actors is therefore a piece of federal
common lawmaking.61 What the common law gives, the common law may
circumscribe and take away.
U.S. courts are, however, alive to the paradox of querying foreign illegalities in
the name of preserving state immunity. The U.S. jurisprudence distinguishes between
the officials motives and actions. Several U.S. courts have held that it is immaterial
59 Ibid. at para. 11.
60 Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 at 689 (1949) (determining
whether the actions of a U.S. government official were those of the government), cited in Chuidian,
supra note 47 at 1106 (concerning the application of the FSIA).
61 See Velasco v. Indonesia, 370 F.3d 392 (4th Cir. 2004) (This narrow, judicially-created expansion
of foreign sovereign immunity [under the FSIA] models federal common law relating to derivative
U.S. sovereign immunity at 399).
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whether an official acted for improper motives. Rather, the question of entitlement to
immunity turns on whether the physical acts committed lay within the officials legal
mandate.62
143
c. Tempered Application in Response to Competing International
Norms
In Pinochet, a majority of the House of Lords also pursued a tempered approach
to state immunity. There, they held that torture could not attract immunity ratione
materiae. Of this total majority, a minority of the Law Lords accepted that torturea
customary international crime with jus cogens status in international law63is per se
incapable of being an official act of state. The remaining judges (constituting a
majority of the court) based their decision on immunity on Chiles ratification of the
Torture Convention. That ratification constituted an acknowledgement that torture
was incompatible with the legitimate official exercise of public authority. After all,
the Torture Convention is explicitly directed at barring torture by government
officials.64 For both of these sets of Law Lords, it was the international illegality of
torture that determined the outcome.
Recent state immunity jurisprudence grappling with grave and heinous abuses by
government officials also focuses on international illegality. As noted above, the ICJs
judgment in Congo v. Belgium hinged on an analysis of immunity ratione personae.
62 See Chuidian, where the plaintiff
contend[ed] that [the government officials] personal motive renders his actions ultra
vires even though the actions themselves were fully authorized. Under [the plaintiffs]
view, every otherwise proper sovereign action would be subject to judicial examination
to ensure that the acting officer did not derive some personal satisfaction from the
commission of his official duty. There is no authority to support such a radical
expansion of the exceptions to sovereign immunity (supra note 47 at 1107).
See also Byrd, supra note 47 at 389.
63 A jus cogens, or peremptory, norm is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character (Vienna
Convention on the Law of Treaties, supra note 38, art. 53). For a discussion of the jus cogens nature of
the prohibition on torture, see e.g. Report of the International Law Commission, which noted:
Although not specifically listed in the Commissions commentary to article 53 of
the Vienna Convention, the peremptory character of certain other norms seems also to
be generally accepted. This applies to the prohibition against torture as defined in
article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of 10 December 1984. The peremptory character of this
prohibition has been confirmed by decisions of international and national bodies (UN
GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001) at 284 [ILC 2001]).
64 Supra note 1, art. 1 ([T]orture means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for certain enumerated purposes when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity [emphasis added]).
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For this reason, the majority opinion in that case did not explore the confines of
immunity ratione materiae. However, Judges Higgens, Kooijmans, and Buergenthal,
concurring, observed that immunity ratione materiae extends only to official acts.
They then qualified this term by noting that serious international crimes cannot be
regarded as official acts because they are neither normal State functions nor functions
that a State alone (in contrast to an individual) can perform.65
Applying a very similar distinction, the English Court of Appeal in Jones (C.A.)66
concluded that individual Saudi government officials possessed no immunity ratione
materiae in the courts of the United Kingdom for alleged acts of torture committed on
the plaintiff overseas. Extending Pinochets logic to the civil context, the Court of
Appeal held that systematic torture, a clear violation of international law, could not be
an act of government clothed in immunity ratione materiae.67
Several points recommend the English Court of Appeals conclusions in Jones
(C.A.). First, as a matter of simple logic, a states breach of its international
commitments cannot lie within a state agents official functions for immunity
purposes. An official acting ultra vires an international commitment is a very different
creature than an official acting outside the scope of his or her domestic jurisdiction.
This is most acutely the case where the international rule either is erga omnesand
thus is a matter of concern for the entire international community68or gives rise to
65 Supra note 5 at para. 85 [emphasis added].
66 Supra note 40.
67 Mance L.J. noted that it can no longer be appropriate to give blanket effect to a foreign states
claim to state immunity ratione materiae in respect of a state official alleged to have committed acts of
systematic torture (ibid. at para. 92). Whether this would be true even if the foreign statein this
case Saudi Arabiahad not ratified the Torture Convention is unclear from the Court of Appeal
decision. Mance L.J. did not appear to limit his holding to circumstances where the foreign state was a
party to the treaty. Phillips L.J. was equivocal on the point:
It was held [in Hatch v. Baez, 7 Hun. 596 (1876)] that under international law the courts
of one country were bound to abstain from sitting in judgment on the acts of another
government done within its own territory. I would now comment that this principle
loses its relevance once it is held that torture cannot constitute an act of government. I
would add that, were torture to be treated as an act of government, the principle would,
so far as torture is concerned, be abrogated by the Torture Convention (ibid. at para.
129).
Neuberger L.J. simply concurred with both judgments, without adding his own views.
68 An obligation erga omnes is a duty that all States can be held to have a legal interest in
[protecting] (Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium
v. Spain), [1970] I.C.J. Rep. 3 at para. 33, 9 I.L.M. 227 [Barcelona Traction cited to I.C.J. Rep.]). In
dicta in Barcelona Traction, the ICJ listed two examples of obligations erga omnes: the bars on
aggression and genocide, and rules concerning basic rights of human beings, including the
prohibition on slavery and racial discrimination (ibid. at para. 34). See also Maurizo Ragazzi, The
Concept of International Obligations Erga Omnes (Oxford: Clarendon Press, 1997) at 139. The
Restatement (Third) of the Foreign Relations Law of the United States 702 (1987) lists the following
as additional erga omnes obligations: murder or disappearing of individuals; torture or other cruel,
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an obligation owed particularly to the forum state. In either instance, the international
transgression engages the forum states interests in a fashion utterly unlike a claim of
domestic illegality would.69 A functionarys internationally illicit actions create a
situation roughly analogous to that arising where a foreign state causes an injury to a
person in the forum state itself: it constitutes an international delict that may properly
prompt a countermeasure from the offended state. Denying immunity ratione
materiae in these circumstances is a modest form of countermeasure.70
Second, whether a state agent complies with his or her states international
obligations is a matter that does not require a forum state to delve into foreign law. It
is entirely a question of international law, a body of principles that any forum states
courts might reasonably be expected to apply authoritatively.71
Third, there is no reason to conclude that a lawsuit directed against a torturing
individual is simply a proxy attack on a sovereign state. As noted above, the Ontario
Court of Appeal worried in Jaffe that a lawsuit against state agents would necessarily
prompt a defence mounted by the state itself and, if that were unsuccessful,
indemnification by the state. Jaffe did not concern, however, an egregious violation of
human rights such as
latter situation presents very different
considerations, as noted by Lord Justice Mance in Jones (C.A.):
torture. The
I am not impressed, in the context of claims for systematic torture, by
suggestions that the relevant state would have to indemnify its officers. A state
may well feel obliged to investigate for itself any allegations of torture. But this
inhuman, or degrading treatment or punishment; prolonged arbitrary detention; and a consistent
pattern of gross violations of internationally recognized human rights.
69 In a different procedural context involving the act-of-state/non-justiciability concept and not state
immunity per se, the House of Lords made a similar point. At issue in Kuwait Airways was whether
the House of Lords should recognize the legitimacy of an Iraqi decree expropriating Kuwaiti aircraft
during the 1990 invasion of Iraq. The majority of the Law Lords concluded that it should not because
Iraqs invasion of Kuwait and seizure of its assets were a gross violation of established rules of
international law of fundamental importance. A breach of international law of this seriousness is a
matter of deep concern to the worldwide community of nations. … Enforcement or recognition of this
law would be manifestly contrary to the public policy of English law (supra note 25 at para. 29, Lord
Nicholls of Birkenhead).
70 These issues are addressed more fully in Part III.D, below.
71 Some courts, in at least the common law tradition, treat international law as a fact to be pleaded,
rather than simply taking judicial notice of international law. It is the case, however, that in countries
like Canada, customary international law, at least, is considered part of the common law and thus of
direct effect like any other doctrine of common law. See e.g. Jose Pereira E Hijos, S.A. v. Canada
(A.G.), in which the court observed:
The principles concerning the application of international law in our courts are well
settled … One may sum those up in the following terms: accepted principles of
customary international law are recognized and are applied in Canadian courts, as part
of the domestic law unless, of course, they are in conflict with domestic law. In
construing domestic law, whether statutory or common law, the courts will seek to
avoid construction or application that would conflict with the accepted principles of
international law ((1996), [1997] 2 F.C. 84 at para. 20, 126 F.T.R. 167 (F.C.T.D.)).
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it should in any event do pursuant to the Torture Convention. A state is of
course also always free to fund the defence of any claim. It is implausible to
suppose that it would do so on the basis that it had authorised or condoned
systematic torture. And if torture by one of its officials was confirmed it would
presumably disown the officials conduct. There is no basis on which the state
could be made liable to indemnify one of its officials proved to have committed
systematic torture.72
Fourth, as Lord Justice Mance also observed, lawsuits against individual
functionaries do not have the same implications for execution against foreign-state
property as do lawsuits against states themselves.73 The monetary risk is borne by the
official, not the state.74 Of course, in many instances that official will not have assets
in the forum state. Any judgment in favour of the plaintiff would not, therefore, be
amenable to enforcement, creating the prospect of moral rather than pecuniary
victories. That fact is not, however, material to the question of whether state
immunity is warranted or not. At any rate, the importance of moral victories in the
progressive development of international law should not be underestimated.
It is also possible that the foreign official would not be present in the forum
jurisdiction and is thus potentially not amenable to service in the lawsuit. Again, this
hurdle for plaintiffs is inconsequential to the immunity issue. As discussed further
below, if anything, it answers the objection that a relaxation of immunity rules would
produce a flood of cases with no connection to forum states.
The English Court of Appeal in Jones (C.A.) invoked many of these reasons in
deciding to strip the cloak of state immunity from the individual defendants. Its
reasoning proved unpersuasive, however, to the House of Lords on appeal. There, as
discussed above, the Law Lords preferred the strict-application approach to state
immunity and functionaries in the civil (as opposed to Pinochets criminal) context;
they looked only at whether the foreign official was discharging or purporting to
discharge a public duty.
The House of Lords also concluded, as had the Court of Appeal, that immunity
extended to Saudi Arabia itself. Key to this holding were the express provisions of the
U.K. State Immunity Act 1978 that accord immunity to states and incorporate only
limited exceptions. A full explanation of this portion of the Jones (H.L.) holding must
72 Supra note 40 at para. 76.
73 Ibid. at para. 77.
74 Indeed, if actions against state functionaries were used as a proxy to extract damages from states,
article 6(2)(b) of the new Immunities Convention might be offended. It reads:
A proceeding before a court of a State shall be considered to have been instituted
against another State if that other State:
…
(b) is not named as a party to the proceeding but the proceeding in effect
seeks to affect the property, rights, interests or activities of that other State (supra
note 17).
C. FORCESE DE-IMMUNIZING TORTURE
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therefore be prefaced with a detailed discussion of common exceptions to state
immunity in both public international and domestic statutory law.
147
III. Exceptions to State Immunity
As noted above, state immunity extends to states qua states, plain and simple. In
its application to states, it is best viewed as a form of immunity ratione personae75
and thus not dependent on the complicated questions of scope of agency raised by
immunity ratione materiae. Even so, there are recognized exceptions to a states
immunity.
A. Waiver
Most significantly, waiver by the foreign state itself negates state immunity. This
waiver may be implied or express. Thus, in the Immunities Convention, no immunity
is available where a state instituted the proceeding or, generally speaking, intervened
in the matter.76 In a similar vein, state counterclaims in a proceeding brought against
the state also extinguish state immunity in relation to the principal claim.77 Waiver
also exists where a state expressly consents to jurisdiction via a declaration before
the court or by a written communication in a specific proceeding, in a written
contract, or by international agreement.78
Notably, a pre-existing treaty is an international agreement, and if consent [to
the exercise of jurisdiction] is expressed in a provision of a treaty, jurisdiction may
be exercised by other state parties to the convention.79 How express this waiver via
treaty must be has been a matter of contention. In a different procedural context in
Pinochet, a majority of the House of Lords viewed Chiles ratification of the Torture
Convention as negating any claims to immunity ratione materiae. The theory
justifying that position was not clearly articulated. For some Law Lords, the
convention simply trumped inconsistent immunity principles.80 For at least one other,
Chiles ratification of the Torture Convention was an act of waiver.81
75 See Jones (C.A.), in which Mance L.J. describes a states own immunity ratione personae
(supra note 40 at para. 91).
76 Supra note 17, art. 8. An intervention does not waive immunity if undertaken for the
sole purpose of:
8(2)).
(a) invoking immunity; or
(b) asserting a right or interest in property at issue in the proceeding (ibid., art.
77 Ibid., art. 9.
78 Ibid., art. 7(1).
79 ILC Commentary on Draft Articles, supra note 28 at 27.
80 Lord Hope of Craighead, for example, noted that
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B. Broadly Accepted Subject-Matter Exceptions
Certain subject-matter exceptions to state immunity also exist. At some level,
these subject-matter exceptions stem from similar considerations to those that arise
with immunity ratione materiae: they constitute circumstances where a state is not
viewed as acting in a state capacity. At common law, the state capacity issue has most
often been discussed as the difference between, on the one hand, jure imperii and, on
the other, jure gestionis. Activities undertaken by a state jure imperii are those done
in the exercise of sovereign authority.82 Examples include virtually any assertion of
a states coercive police power.83 In comparison, activities jure gestionis are those
involving transactions of the kind which might appropriately be undertaken by
private individuals instead of sovereign states.84 The obvious intent is to single out
commercial activities by states or, in the words of the U.S. Supreme Court, actions
undertaken in the manner of a private player within the market.85 Adjudication of
as a matter of general customary international law a head of state will personally be
liable to be called to account if there is sufficient evidence that he authorised or
perpetrated such serious international crimes. …
I would not regard this as a case of waiver. Nor would I accept that it was an
implied term of the Torture Convention that former heads of state were to be deprived
of their immunity ratione materiae with respect to all acts of official torture as defined
in art 1. It is just that the obligations which were recognised by customary international
law in the case of such serious international crimes by the date when Chile ratified the
convention are so strong as to override any objection by it on the ground of immunity
ratione materiae to the exercise of the jurisdiction over crimes committed after that date
which the United Kingdom had made available (supra note 14 at 152).
81 Lord Saville of Newdigate remarked:
It is also said that any waiver by states of immunities must be express, or at
least unequivocal. I would not dissent from this as a general proposition, but it seems to
me that the express and unequivocal terms of the Torture Convention fulfil any such
requirement. To my mind these terms demonstrate that the states who have become
parties have clearly and unambiguously agreed that official torture should now be dealt
with in a way which would otherwise amount to an interference in their sovereignty
(ibid. at 170).
Note also the fierce reaction to this approach by Lord Goff of Chieveley, dissenting, who argued that
waiver by treaty must be express, a standard not met by the Torture Convention.
82 Alcom Ltd. v. Columbia, [1984] A.C. 580 at 597, [1984] 2 Lloyds L.R. 31 (H.L.).
83 See e.g. Saudi Arabia v. Nelson, where the U.S. Supreme Court noted that [t]he conduct
[complained of in the case] boils down to abuse of the power of its police by the Saudi Government,
and however monstrous such abuse undoubtedly may be, a foreign states exercise of the power of its
police has long been understood for purposes of the restrictive theory as peculiarly sovereign in
nature (507 U.S. 349 at 361 (1993)). See also H. Lauterpacht, The Problem of Jurisdictional
Immunities of Foreign States (1951) 28 Brit. Y.B. Intl L. 220. The author notes that actions jure
imperii must include executive and administrative acts of the foreign state within its territory, such as
alleged unjustified expulsion or exaction of dues or wrongful imprisonment or, generally, denial of
justice (ibid. at 237).
84 Alcom Ltd. v. Columbia, supra note 82 at 598, Lord Diplock.
85 Saudi Arabia v. Nelson, supra note 83 at 360 [citations omitted].
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such matters is neither a threat to the dignity of that state, nor any interference with
its sovereign functions.86
The distinction between these two functions obtained growing recognition in
European countries as sovereign states began increasingly to engage, either directly
or through separate entities that were emanations of the executive government of the
state, in commercial and trading transactions with private citizens of other states.87
This change in state behaviour precipitated the so-called restrictive theory of state
immunity, pursuant to which national courts could exercise jurisdiction over foreign
states in claims against them that arose out of commercial or trading transactions into
which they had entered with private individuals.88
The restrictive approach, applied by the common law of England,89 Canada,90
and, to a lesser extent, the United States,91 was codified in the state immunity
legislation of all of these jurisdictions by the late twentieth century. It also now
figures prominently in the Immunities Convention. Under the convention, state
immunity does not attach to a proceeding involving a commercial transaction
between a state and a natural or juridical person, a contract of employment between
the state and an individual for work performed in the forum state, or immovable
property situated in the forum state.92 Each of these examples, which have an evident
86 Playa Larga v. I Congreso del Partido (1981), [1983] 1 A.C. 244 at 262, [1981] 2 All E.R. 1064
(H.L.), Lord Wilberforce.
87 Alcom Ltd. v. Columbia, supra note 82 at 598.
88 Ibid. See also Saudi Arabia v. Nelson, in which Souter J. wrote that [u]nder the restrictive, as
opposed to the absolute, theory of foreign sovereign immunity, a state is immune from the
jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those that are
private or commercial in character (jure gestionis) (supra note 83 at 359-60). In Iraqi Airways, Lord
Mustill wrote:
The rationale of the common law doctrine of the restricted immunity … is that where
the sovereign chooses to doff his robes and descend into the marketplace he must take
the rough with the smooth and having condescended to engage in mundane commercial
activities he must also condescend to submit himself to an adjudication in a foreign
court on whether he has in the course of those activities undertaken obligations which
he has failed to fulfil (supra note 25 at 718).
89 See e.g. Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, [1977] Q.B. 529, [1977] 1
All E.R. 881, [1977] 2 W.L.R. 356, [1977] 1 Lloyds L.R. 581 (C.A.).
90 See e.g. Lorac Transport Ltd. v. The Atra, [1987] 1 F.C. 108, 28 D.L.R. (4th) 309 (F.C.A.)
(endorsing the restrictive immunity approach even prior to the State Immunity Act). But see Congo v.
Venne, [1971] S.C.R. 997, 22 D.L.R. (3d) 669 (showing little sympathy for the restrictive immunity
doctrine at common law).
91 Prior to the FSIA, the U.S. courts applied restrictive immunity, but almost always at the behest of
the U.S. State Department and not through the independent application of judicial discretion. See
discussion in Chuidian, supra note 47 at 1099ff.
92 Supra note 17, arts. 10-11, 13.
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commercial nexus, is addressed in the state immunity laws of Canada, the United
Kingdom, and the United States.93
Another notable exception to immunity is set out in article 12 of the Immunities
Convention: there is no state immunity in proceedings for pecuniary compensation
for death or injury to the person or damage to tangible property.94 However, before
this exception applies, several additional criteria must be met. First, the act or
omission by the defendant state that occasioned the proceeding must have occurred
in whole or in part in the territory95 of the forum state. Second, the author of the act
or omissionstate agents or officials acting in their official capacity96must have
been present in that territory at the time of the act or omission.97 Put another way,
the personal injury exception requires a strong territorial nexus between the wrongful
act and the forum state. In the ILCs view, article 12 does not apply to transboundary
injuries or trans-frontier torts or damage or to shooting or firing across a
boundary.98
Article 12 would not therefore extend to a lingering tort (i.e., a tort whose
elements are completed overseas, but whose deleterious effects continue to be felt by
the victim residing at some future point in the forum state).99 Such an approach was
essentially ruled out for Canadas State Immunity Act by the Supreme Court of
Canada in Schreiber100 and its lower-court progeny. The Canadian statute limits state
immunity in matters concerning any death or personal injury … that occurs in
Canada.101 Interpreting this provision, the Court reasoned that it was restricted to a
class of claims arising out of a physical breach of personal integrity … 102 The Court
acknowledged that [t]his type of breach could conceivably cover an overlapping
area between physical harm and mental injury, such as nervous stress.103 However,
subsequent lower-court decisions have pointed to Schreiber in requiring that the
physical breach of personal integrity giving rise to the claim take place in Canada.104
This approach is consistent with Hersch Lauterpachts admonishment in a
seminal 1952 article on restrictive immunity: [N]o action should lie with regard to
torts committed by foreign states and their organs in their own territory. These must
93 See State Immunity Act, supra note 4, ss. 5, 8; State Immunity Act 1978 (U.K.), supra note 47, ss.
3, 4, 6; FSIA, supra note 47 1605.
94 Ibid.
95 Ibid.
96 ILC Commentary on Draft Articles, supra note 28 at 46.
97 Ibid.
98 Ibid. at 45.
99 Other observers have reached the same conclusion. See e.g. David P. Stewart, The UN
Convention on Jurisdictional Immunities of States and their Property (2005) 99 A.J.I.L. 194 at 202.
100 Supra note 21.
101 Supra note 4, s. 6(a).
102 Supra note 21 at para. 80.
103 Ibid.
104 Bouzari (C.A.), supra note 3 at para. 47.
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be left either to judicial remedies within that foreign state or to appropriate diplomatic
action in accordance with the accepted practice of diplomatic protection of citizens
abroad.105 It is also in keeping with the state immunity laws of such countries as the
United Kingdom106 and the United States.107
For the ILC, the rationale for this exception is simple: since the injuries covered
by the exception occur within the forum state, that state is the most convenient forum,
and foreign courtsincluding those of the injuring statemight therefore decline
jurisdiction over the matter on a theory of forum non conveniens. The injured
individual would then be without recourse to justice had the [injuring] State been
entitled to invoke its jurisdictional immunity in the forum state.108
An even more compelling reason for the exception is suggested by James
Crawford:
Deliberately to cause such harm or damage on the territory of another State by
an act of public power is, in the absence of some special exception, a plain
violation of international law … The exercise of local jurisdiction in such cases
is an assertion of the forums right, acknowledged by international law, to deal
with the consequences of unlawful acts on its territory.109
Put another way, the courts of the forum state need not pull any jurisdictional punches
when foreign states commit torts on the forum states soil.
105 Supra note 83 at 237-38.
106 See State Immunity Act 1978 (U.K.), supra note 47:
5. A State is not immune as respects proceedings in respect of
(a) death or personal injury; or
(b) damage to or loss of tangible property, caused by an act or omission in the
United Kingdom [emphasis added].
107 See 28 U.S.C. 1605(a)(5) (2000) (denying immunity in certain circumstances where money
damages are sought against a foreign state for personal injury or death, or damage to or loss of
property, occurring in the United States … ); Olsen (Guardian ad litem of) v. Mexico, 729 F.2d 641 at
646 (9th Cir. 1984) (it is not enough that injury is experienced in the United States for the exception to
apply; at least one entire tort must occur within the United States); Persinger v. Iran, 729 F.2d 835 at
842 (D.C. Cir. 1984).
108 ILC Commentary on Draft Articles, supra note 28 at 44.
109 International Law and Foreign Sovereigns: Distinguishing Immune Transactions (1983) 54
Brit. Y.B. Intl L. 75 at 111. For similar language, see Controller and Auditor-General, supra note 26,
in which the court determined that state immunity should be refused in circumstances where a state
had acted to impede the tax collection activities of New Zealand. Richardson J. asserted that immunity
would not apply where the alleged conduct of the foreign state is directed in a real sense against the
forum state or so directly affects it and is so outrageous that the protection international law would
otherwise give to the foreign state in matters properly within the jurisdiction of the forum state should
not be allowed (ibid. at 306).
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A variation on this theme arose in Ferrini v. Germany,110 a 2004 decision of the
Italian Court of Cassation. At issue was a lawsuit brought by an Italian citizen against
Germany for deportation and forced labour during the Second World War. The court
declined to extend state immunity to Germany, not only because the events occurred
at least in part in Italy, but also because of the international criminal nature of the
acts. With respect to the latter issue, the court placed substantial emphasis on the fact
that the acts in question breached jus cogens rules of international law (i.e.,
peremptory norms of such significance as to trump all competing international laws
of lesser status).
Ferrini followed a similar decision of the Hellenic Supreme Court in Voiotia v.
Germany.111 At issue was Germanys liability for atrocities committed by Nazi
occupiers during the Second World War in Greece, here the forum state. Reasoning
that the acts in question were jus cogens violations, the court held that Germany was
not entitled to state immunity.
The reasoning of these two courts was clearly influenced by the internationally
egregious nature of the German actions. Given their facts, however, these decisions
leave open an important question: does a separate exception to state immunity tied to
a jus cogens human rights violation exist, even absent a territorial nexus between the
forum state and the wrongdoing? This is a question to which the next section turns.
C. Human Rights Exceptions to State Immunity
Neither the Immunities Convention nor the domestic state immunity laws of
countries like Canada, the United Kingdom, and the United States include an express
exception for human rights violations. Accordingly, substantial judicial ink has been
spilled recently over whether a human rights limitation on state immunity can be
derived either from a sweeping read of existing exceptions or, impliedly, as part of
treaty or customary international law. Most of these cases involve lawsuits brought in
response to acts of torture, and many turn on an understanding of the Torture
Convention. A full discussion of the jurisprudence must therefore be prefaced by an
overview of that conventions provisions on civil remedies.
1. Right to Civil Redress Under the Torture Convention
Article 14(1) of the Torture Convention reads, in part, Each State Party shall
ensure in its legal system that the victim of an act of torture obtains redress and has an
110 The treatment of this case that follows in this article relies on the translated summary found in
Andrea Bianchi, Case Comment on Ferrini v. Germany, (2005) 99 A.J.I.L. 242 [Ferrini]. For the
original judgment in Italian, see Cass., sez. un., 11 March 2004, 87 Revista di Diritto Internazionale
539.
111 The treatment of this case that follows in this article relies on the translated summary found in
Maria Gavouneli & Ilias Bantekas, Case Comment on Voiotia v. Germany (2001) 95 A.J.I.L. 198
[Voiotia]. For the original judgment in Greek, see Areios Pagos [Supreme Court] 11/2000 (Greece).
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enforceable right to fair and adequate compensation … 112 Article 14(2) adds a
caveat: Nothing in this article shall affect any right of the victim or other persons to
compensation which may exist under national law.113
The precise jurisdictional scope of article 14 is not set out expressly. Early drafts
of the provision specified that compensation was owed by a state in relation to
treatment committed by or at the instigation of its public officials.114 Later versions
indicated that compensation was owed by states for torture committed in any
territory under its jurisdiction.115 Both of these limiters were omitted in the final
version, creating uncertainty as to whether the right to compensation was available in
states other than those whose agents had performed torture and/or on whose territory
the torture had occurred.
In recent submissions to the Committee Against Torture, the International
Coalition against Torture (INCat), a non-governmental organization based in
Canada, argued that the absence of limiting language in the final article 14 was
intentional, reflecting a change of heart as to the scope of the compensation principle.
In INCats words, [T]he negotiating states must have intended, by dropping an
express geographical limitation which they had considered, to intend no geographical
limitation.116
This view is not shared by others. The United States, for its part, has taken the
view that article 14 was intended to have territorial limitations. At the time that the
Reagan administration submitted the Torture Convention for ratification by the U.S.
Senate, the State Departments summary and analysis of the treaty noted the
following:
The negotiating history of the Convention indicates that Article 14 requires
a State Party to provide a private right of action for damages only for acts of
torture committed in its territory, not for acts of torture occurring abroad.
Article 14 was in fact adopted with express reference to the victim of an act of
112 Supra note 1.
113 Ibid.
114 UN ESC, Commission on Human Rights, Draft International Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted by Sweden, UN. Doc.
E/CN.4/1285 (January 1978) [mimeo.], art. 12, cited in J. Herman Burgers & Hans Danelius, The
United Nations Convention Against Torture: A Handbook on the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (The Hague: Martinus Nijhoff, 1988)
at 68 [emphasis added].
115 Ibid. at 74.
116 David Matas, InCAT Submission on Canada to the UN Committee against Torture
(9 April 2005) at para. 23, on file with author. For other discussions of the reach of article 14, see
Wendy Adams, In Search of a Defence of the Transnational Human Rights Paradigm: May Jus
Cogens Norms be Invoked to Create Implied Exceptions in Domestic State Immunity Statutes? in
Scott, supra note 25, 247 at 260ff; Andrew Byrnes, Civil Remedies for Torture Committed Abroad:
An Obligation under the Convention against Torture? in Scott, ibid., 537.
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torture committed in any territory under its jurisdiction. The italicized wording
appears to have been deleted by mistake [in the final Convention].117
The State Department urged that its interpretation was the only plausible explanation
as there had been no discussion during the treatys negotiations of a universal right
to sue, and such a right would have been hotly contested by the participants.118 To
underscore its view, the United States entered a declaration upon ratification of the
treaty: [I]t is the understanding of the United States that Article 14 requires a State
Party to provide a private right of action for damages only for acts of torture
committed in territory under the jurisdiction of that State Party.119
2. Civil Redress for Torture and State Immunity
On the whole, courts that have addressed the issue have shared the U.S. view on
the scope of the Torture Convention. The most widely cited case to date is Al-Adsani
v. The United Kingdom,120 a decision of the European Court of Human Rights. A joint
Kuwaiti/U.K. national brought suit against Kuwait in a U.K. court for torture suffered
at the hands of senior Kuwaiti officials. The English Court of Appeal dismissed the
case, concluding that Kuwait was protected by state immunity.121 The plaintiff
complained that this denial of civil remedies for torture on a state immunity theory
violated the United Kingdoms obligations under the European Convention on
Human Rights.122
This question was adjudicated by the European Court of Human Rights. The
majority held for the United Kingdom on the basis that state immunity was a valid,
persisting international rule, even where torture was alleged. In the majoritys words,
[T]he grant of sovereign immunity to a State in civil proceedings pursues the
117 Reagan Administration Summary and Analysis of the Convention, reproduced in U.S., Senate
Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (S. Exec. Rep. No. 30) (1990) at 23-24 [emphasis in original].
The Reagan Administration Summary and Analysis was relied upon, with some amendments in
relation to other provisions of the Torture Convention, by the elder Bush administration when the
treaty was finally ratified.
118 Ibid. at 24. See also Byrnes, who reviews the drafting history of the Torture Convention and
notes that it is difficult to argue unequivocally that article 14 of the CAT must be interpreted as
requiring States parties to provide the same civil right to redress for torture which occurs outside its
jurisdiction as it is obliged to provide for torture which is alleged to have occurred within its territorial
and other jurisdiction (supra note 116 at 549).
119 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Ratification and Accession, United States, 21 October 1994, 1830 U.N.T.S. 320, para. II(3), 136 Cong.
Rec. S17486-01 (daily ed. 27 October 1990) (effective from 20 November 1994).
120 Supra note 26 at para. 66.
121 Al-Adsani v. Kuwait (1996), 107 I.L.R. 536 (Eng. C.A.) [Al-Adsani (C.A.)].
122 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,
213 U.N.T.S. 221, Eur. T.S. 5 (entered into force 3 September 1953) [European Convention on
Human Rights].
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legitimate aim of complying with international law to promote comity and good
relations between States through the respect of another States sovereignty.123 While
the prohibition on torture itself was especially robust in international lawreaching
jus cogens status and thus trumping lesser principlesthe court was unable to
discern in the international instruments, judicial authorities or other materials before it
any firm basis for concluding that, as a matter of international law, a State no longer
enjoys immunity from civil suit in the courts of another State where acts of torture are
alleged.124 The court distinguished Pinochet on two grounds: first, Pinochet
concerned a criminal matter; second, Pinochet dealt with the immunity ratione
materiae of a former head of state, not the immunity ratione personae of the state
itself.125
Neither of these considerations persuaded the dissenting judges. In a dissenting
opinion joined by four others, Judges Rozakis and Caflisch underscored the jus
cogens nature of the prohibition of torture. By definition, a jus cogens norm is
hierarchically higher than any other rule of international law, be it general or
particular, customary or conventional, with the exception … of other jus cogens
norms.126 Logically, therefore, the prohibition of torture entails that a State allegedly
violating it cannot invoke hierarchically lower rules (in this case, those on State
immunity) to avoid the consequences of the illegality of its actions.127 Because the
jus cogens quality of the prohibition on torture acts in the international sphere and
deprives the rule of sovereign immunity of all its legal effects in that sphere, the
criminal or civil nature of the domestic proceedings is immaterial.128 Put another
way, for the dissent, a violation of a human rights obligation having jus cogens
applicability robs a state of its special jurisdictional protections, whatever the venue
in which they are claimed.
123 Al-Adsani (E.C.H.R.), supra note 26 at para. 54.
124 Ibid. at para. 61. The ECHR repeated this same point in relation to crimes against humanity in
Kalogeropoulou v. Greece and Germany (dec.), no. 59021/00, [2002] X E.C.H.R. 415 at 428-29.
Here, the plaintiffs in Voiotia, supra note 111, were refused enforcement of the Hellenic Supreme
Court award in their favour in Germany. They appealed this decision to the ECHR as a violation of the
European Convention on Human Rights, supra note 122. In dismissing their case, the ECHR made
these comments:
[T]he applicants appeared to be asserting that international law on crimes against
humanity was so fundamental that it amounted to a rule of jus cogens that took
precedence over all other principles of international law, including the principle of
sovereign immunity. The Court does not find it established, however, that there is yet
acceptance in international law of the proposition that States are not entitled to
immunity in respect of civil claims for damages brought against them in another State
for crimes against humanity (Kalogeropoulou v. Greece and Germany, ibid. at 428-29).
125 Al-Adsani (E.C.H.R.), ibid. at para. 61ff.
126 Ibid., Joint Dissenting Opinion of Judges Rozakis and Caflisch Joined By Judges Wildhaber,
Costa, Cabral Barreto and Vajc at para. 1.
127 Ibid. at para. 3.
128 Ibid. at para. 4.
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The dissents approach has an obvious appeal. Significantly, it resolves a moral
incongruity in the current law of state immunity: state immunity does not attach to
state commercial activities, but it does apply to state barbarity. If state immunity can
be limited in the interests of wronged contractors, surely the physical and dignity
interests of victims of human rights violations are equally deserving.
The dissents approach also puts courts in the business of adjudicating the
propriety of foreign state activities, not as measured against that courts own law or
even the law of the foreign state itself, but according to international law (which, in
this case, is both binding on all states as customary international law and elevated to
peremptory, jus cogens status). Admittedly, the concept of jus cogens is uncertain, and
the list of international infractions constituting a violation of jus cogens norms
contested.129 Nevertheless, it is a finite list, and not an open invitation to national
courts to adjudicate every banal wrong committed by states in conducting their
affairs.
At first blush, the dissents approach appears to deputize national courts as
venues in which the international wrongs of foreign sovereigns are remedied. It is
exactly this possibility that animates objections to eroded state immunity voiced by
the English Court of Appeal in Al-Adsani (C.A.):
A vast number of people come to this country [the United Kingdom] each year
seeking refuge and asylum, and many of these allege that they have been
tortured in the country whence they came. Some of these claims are no doubt
justified, others are more doubtful. Those who are presently charged with the
responsibility for deciding whether applicants are genuine refugees have a
difficult enough task, but at least they know much of the background and
surrounding circumstances against which the claim is made. The court would
be in no such position. The foreign State would be unlikely to submit to the
jurisdiction of the United Kingdom court, and in its absence the court would
have no means of testing the claim or making a just determination.130
jurisdiction over
This view, however, ignores other legal and prudential limitations on national
court
foreign sovereigns.
Incorporating a jus cogens, human rights exception to state immunity would not
automatically permit court jurisdiction over the dispute. Not least, conflict of law
rules would persist, governing the territorial nexus that must exist between an alleged
harm and the national courts.131 Also pertinent would be common law doctrines such
lawsuits against
transnational
129 See e.g. Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3, 208 D.L.R. (4th) 1 (Peremptory norms develop over time and by general consensus of the
international community. This is the difficulty in interpreting international law; it is often impossible
to pinpoint when a norm is generally accepted and to identify who makes up the international
community at para. 61).
130 Supra note 121 at 544.
131 Most notable of these in Canada is the real and substantial connection requirement. See e.g.
Uninet Technologies v. Communication Services, which summarized the rule as follows:
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as forum non conveniens. This doctrine would enable courts, at their discretion, to
dismiss suits in exactly the circumstances described by the English Court of Appeal in
Al-Adsani (C.A.): where the subject matter of the lawsuit is better heard somewhere
else.132
157
Since the enunciation and evolution of the real and substantial connection principle
by the Supreme Court of Canada in the seminal cases of (inter alia) Moran v. Pyle
National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393 (S.C.C.), Morguard Investments
Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 (S.C.C.), and Tolofson v. Jensen, [1994] 3
S.C.R. 1022 (S.C.C.), the only test for jurisdiction simpliciter is … whether the plaintiff
has established there is a real and substantial connection between the court and either
the defendant or the subject-matter of the litigation (2005 BCCA 114, 38 B.C.L.R.
(4th) 366 at para. 20 [references omitted]).
In Bouzari (Sup. Ct.), supra note 3, the Ontario Superior Court of Justice named this test as a potential
impediment to the plaintiffs tort-for-torture lawsuit, but suggested that since it seemed likely that the
plaintiff would not have a fair trial in Iran, the test should probably be relaxed (at paras. 15-17). In
Bouzari (C.A.), supra note 3, the Ontario Court of Appeal suggested that the plaintiffs inability to
obtain relief in Iran might have a bearing on the test, but declined to answer the question since the case
could be decided on state immunity grounds (at para. 23ff).Further discussion of the Bouzari case will
be found at Part III.C.3, below.
132 The forum non conveniens test has been summarized by the Supreme Court of Canada as
follows: the court must determine whether there is another forum that is clearly more appropriate. …
[W]here there is no one forum that is the most appropriate, the domestic forum wins out by default
and refuses a stay, provided it is an appropriate forum (Amchem Products v. British Columbia, [1993]
1 S.C.R. 897 at 931, 102 D.L.R. (4th) 96). In Frymer v. Brettschneider, Arbour J.A., as she then was,
writing for the majority of the Court of Appeal, summarized this test as follows: In all cases, the test
is whether there clearly is a more appropriate jurisdiction than the domestic forum chosen by the
plaintiff in which the case should be tried. The choice of the appropriate forum is designed to ensure
that the action is tried in the jurisdiction that has the closest connection with the action and the parties.
All factors pertinent to making this determination must be considered ((1994), 19 O.R. (3d) 60 at 79
(C.A.)). For a discussion of forum non conveniens in the context of torture, see Anne C. McConville,
Taking Jurisdiction in Transnational Human Rights Tort Litigation: Universality Jurisdictions
Relationship to Ex Juris Servico, Forum Non Conveniens and the Presumption of Territoriality in
Scott, supra note 25, 157. It is also noteworthy that even where actions are not accorded state
immunity, courts may still decline to exercise jurisdiction over a dispute on act-of-state (or the related
non-justiciability) grounds. It is unlikely, however, that non-justiciability concepts would apply to a
flagrant violation of international human rights law. In Kuwait Airways, Lord Nicholls of Birkenhead
noted that
[w]hen deciding an issue by reference to foreign law, the courts of this country must
have a residual power, to be exercised exceptionally and with the greatest
circumspection, to disregard a provision in the foreign law when to do otherwise would
affront basic principles of justice and fairness which the courts seek to apply in the
administration of justice in this country. Gross infringements of human rights are one
instance, and an important instance, of such a provision (supra note 25 at para. 18).
Lord Nicholls further claimed that the non-justiciable principle [does not] mean that the judiciary
must shut their eyes to a breach of an established principle of international law committed by one state
against another when the breach is plain and, indeed, acknowledged (ibid. at para. 26).
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The minority position in Al-Adsani (E.C.H.R.) proved persuasive to the Italian
Court of Cassation in its 2004 decision in Ferrini, discussed above.133 The dissents
logic has not, however, found fertile ground in other cases either before or since. In a
1999 report, the ILCs working group on state immunity noted the importance of the
issue, but, pointing to cases like Al-Adsani (E.C.H.R.), it concluded that most claims
advancing a jus cogens exception to state immunity had failed.134 As noted above, the
final Immunities Convention is silent on a human rights exception to state immunity.
More heed was paid to jus cogens norms by the U.S. Court of Appeals for the
Ninth Circuit in Siderman de Blake v. Argentina.135 At issue was whether plaintiffs
could bring suit in U.S. federal court against Argentina for torture suffered in that
country. The Ninth Circuit observed that
the right to be free from official torture is fundamental and universal, a right
deserving of the highest status under international law, a norm of jus cogens.
The crack of the whip, the clamp of the thumb screw, the crush of the iron
maiden, and, in these more efficient modern times, the shock of the electric
cattle prod are forms of torture that the international order will not tolerate. To
subject a person to such horrors is to commit one of the most egregious
violations of the personal security and dignity of a human being. That states
engage in official torture cannot be doubted, but all states believe it is wrong,
all that engage in torture deny it, and no state claims a sovereign right to torture
its own citizens.136
Nevertheless, the court was bound by the express terms of the FSIA. Noting that the
act does not specifically provide for an exception to sovereign immunity based on
jus cogens, it held that if violations of jus cogens committed outside the United
States are to be exceptions to immunity, Congress must make them so. The fact that
there has been a violation of jus cogens does not confer jurisdiction under the
FSIA.137
The difficulty confronted by the U.S. federal court in Siderman is slightly
different than that at issue in other common law jurisdictions: U.S. federal courts are
courts of limited, rather than inherent, jurisdiction, and must almost always find a
statutory basis for their subject-matter jurisdiction. Where, as here, no such basis
existed in the FSIA, the court was robbed of jurisdiction. In comparison, it is
conceivable that common law courts with inherent jurisdiction might find creative
ways to embellish state immunity statutes that are silent on human rights and jus
cogens issues. This possibility has not, however, come to pass.
133 Supra note 110 at 246.
134 International Law Commission, Report on the work of its fifty-first session (3 May23 July
1999), UN GAOR, 54th Sess., Supp. No. 10, UN Doc. A/54/10 at 415.
135 965 F.2d 699 (9th Cir. 1992) [Siderman].
136 Ibid. at 717.
137 Ibid. at 718-19. Siderman predates legislative changes to the FSIA in 1996. These amendments,
discussed in greater detail in Part III.D.1, below, opened the door to civil lawsuits in U.S. federal
courts against state sponsors of terrorism for acts that include torture.
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In Iraqi Airways,138 the U.K. House of Lords extended state immunity to Iraqi
Airways in relation to its seizure (at the direction of the Iraqi government) of Kuwaiti
civil aircraft during the 1990 Iraqi invasion. It was apparently immaterial to the Law
Lords that Iraq was engaged in an act of international aggression in flagrant violation
of (probably jus cogens) international law. Indeed, the very fact that the seizure
comprised part of an act of aggression was cited by one Law Lord as evidence that it
did not fall within the commercial exception under the U.K. State Immunity Act
1978.139
As noted above, the English Court of Appeal in Jones (C.A.) and then the House
of Lords in Jones (H.L.) declined to roll back the cloak of immunity for Saudi Arabia
in a lawsuit alleging torture in that country. Pointing to Kuwait Airways and relying
on the European Court of Human Rights position in Al-Adsani (E.C.H.R.), Lord
Justice Mance at the Court of Appeal reasoned that a jus cogens prohibition on torture
and the availability of civil relief before the courts of another state were quite
different things:
The recognition under general principles of international law of civil immunity
on the part of a state from civil suit in a state other than that of the alleged
torture does not sanction the torture or qualify the prohibition upon it. It
qualifies the jurisdictions in which and means by which the peremptory norm
may be enforced. There is a distinction between principles of substantive
international law and other issues, such as jurisdiction and immunity in civil
proceedings in any particular jurisdiction.140
Lord Justice Mance carefully parsed the Torture Convention, focusing particular
attention on article 14 of that treaty. Observing that this language says nothing about
the jurisdictional competence of courts to offer redress for torture committed in other
states, he concluded that
article 14(1) is dealing with (no more than) a right of redress in the legal system
of the state (state A) by whose official … the alleged act of torture was
committed … State A is, in short, the responsible state, and it must ensure proper
civil redress. Article 14(1) is not designed to require every other state (state B)
to provide redress in its civil legal system for acts of torture committed in state
A, although under article 14(2) it remains permissible for state B to provide
redress in state B for acts of torture committed … by officials … of state A.141
The Court of Appeals conclusions on the immunity of states themselves were
upheld on appeal by the House of Lords. The Law Lords agreed that article 14 of the
Torture Convention does not provide for universal civil jurisdiction.142 The Law
Lords were fortified in their views by three facts: the unwillingness of the ICJ in
Congo v. Belgium to limit immunity (there in relation to senior officials), even with
138 Supra note 25.
139 Ibid. at 722, Lord Slynn.
140 Supra note 40 at para. 17.
141 Ibid. at para. 21 [emphasis added].
142 Supra note 40 at para. 25, Lord Bingham. See also ibid. at para. 46, Lord Hoffman.
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respect to jus cogens violations; the failure of the new Immunities Convention to offer
up such an exception; and the dearth of state practice accepting a jus cogens
constraint on immunity.143
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3. Bouzari v. Iran
The question of jus cogens and the exact scope of the Torture Convention was
also taken up recently by the Ontario Court of Appeal in Bouzari (C.A.).144 At issue in
that case was the maltreatment of the plaintiff Bouzari while an Iranian citizen and
resident by the Iranian government. Bouzari alleged that his torture at the hands of
Iranian government agents was designed to blackmail him for payments drawn
against a commission he was earning from Irans state oil company. He launched his
lawsuit against Iran in Ontario court, having arrived in Canada as a refugee several
years after the torture. At the Ontario Superior Court of Justice and the Ontario Court
of Appeal, his case foundered on state immunity grounds.
In both courts, Bouzari argued unsuccessfully that his case fell within either the
tort or commercial activity exceptions found in Canadas 1982 State Immunity Act.
Both courts disagreed, concluding that the tort exception applied only where the
physical breach of personal integrity giving rise to the claim take[s] place in
Canada.145 In relation to the commercial activity exception, the Court of Appeal
reasoned that
apart from their purpose, the acts of torture underpinning the appellants action
cannot be said to have anything to do with commerce. They are nothing more
than unilaterally imposed acts of brutality. The appellant believes that they were
committed with a purpose of affecting his involvement in the commercial
activity of the South Pars [oil] project. Even if this is taken to include an
intention to affect the commercial activity of Iran, that is not enough to turn the
acts of torture themselves into the commercial activity of Iran.146
Bouzari also mounted an assault on the State Immunity Act itself, on a public
international law theory. Specifically, he argued that Canadas treaty obligations
under article 14 of the Torture Convention oblige access to a civil remedy in
Canadian courts for torture, wherever it is committed. Both courts rejected this
position. In so doing, both noted that article 14 and its negotiating history provide no
definitive guidance on the issue, but pointed to expert testimony in concluding that no
state has interpreted Article 14 to require it to take civil jurisdiction over a foreign
state for acts committed outside the forum state.147
143 Ibid. at paras. 25-27, Lord Bingham. For a similar list of considerations, see ibid. at para. 47ff.
144 Supra note 3.
145 Ibid. at para. 47.
146 Ibid. at para. 53.
147 Ibid. at para. 78.
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Further, neither court was persuaded by the plaintiffs argument that the
prohibition on torture is a jus cogens principle and thus trumps any inconsistent,
lesser rule of international law, including state immunity. Neither court disagreed that
the prohibition on torture was a jus cogens norm. They were not persuaded, however,
that there existed a jus cogens obligation to remedy an act of torture civilly,
irrespective of where the torture took place.148
Bouzari (C.A.) was appealed to the Supreme Court of Canada, but leave was
refused.149 For at least the time being, the Ontario Court of Appeals decision will be
the final Canadian word on lawsuits against foreign states for extraterritorial torture.
For instance, a lawsuit brought by Maher Arar against Syria alleging overseas torture
was dismissed by the Ontario Superior Court of Justice in 2005.150 Noting the holding
in Bouzari, the court in Arar v. Syria made pointed comments about the proper role of
the courts in immunity cases:
Should Parliament determine that current public policy requires that state
sponsored torture should no longer be accorded immunity in Canadian civil
courts, undoubtedly the S.I.A. [State Immunity Act] will be amended
accordingly. To read into the S.I.A. a previously unstated exclusion, would be
an unmerited and inappropriate expression of judicial activism.151
The court also warned that it would put Canada out of step with the international
order at this time.152
4. The UN Committee Against Torture
The courts admonishment of Canadas compliance with international law proved
prescient, though not in the way intended. The Ontario courts judgments in Bouzari
and Arar do toe the same firm line as other courts on the question of human rights
and state immunity. Nevertheless, their interpretation of article 14 of the Torture
Convention has sparked a reaction from the Committee Against Torture, the
international body tasked with monitoring implementation of the treaty. As a state
party to the convention, Canada is obliged to submit periodic reports on its
performance under the treaty. In May 2005, its most recent reports were scrutinized
148 Ibid. at para. 84ff. The plaintiff also argued that the state immunity principle, as enacted in the
State Immunity Act, violated s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 by constituting a
deprivation of life, liberty, or security of the person not in accordance with the principles of
fundamental justice. This position was rejected by both levels of court. No causal link could be
established between the state immunity rule and the deprivation via torture (Jones (C.A.), ibid at para.
96ff).
149 Bouzari (S.C.C.), supra note 3.
150 Arar v. Syria (2005), 127 C.R.R. (2d) 252, 28 C.R. (6th) 187 (Ont. Sup. Ct.) [Arar].
151 Ibid. at para. 31.
152 Ibid.
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by the Committee Against Torture. Addressing the question of state immunity during
these proceedings, the Canadian representative urged that
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article 14 established an obligation to ensure redress where an act of torture
took place within the States own jurisdiction but did not modify the well-
established principles of State immunity.
… It did not require States to assert jurisdiction in their domestic courts over
acts occurring outside the forum State. …
… The States participating in the drafting would have indicated the fact had
there been any intention to modify or override the fundamental principle of
State immunity. In the absence of any such indication, the provision must be
interpreted in a manner which permitted States to comply with that principle.153
At least some committee members expressed dissatisfaction with this reasoning,
noting, [G]iven that there was an exception to State immunity in legislation for
business deals, it seemed unclear why an exception could not be considered for
torture.154 Further, committee members urged that as a countermeasure permitted
under international public law, a State could remove immunity from another Statea
permitted action to respond to torture carried out by that State.155 The merits of this
countermeasures observation are discussed more fully below.
In its concluding observations, the Committee Against Torture as a whole
appeared unmoved by Canadas position. It listed as a matter of concern [t]he
absence of effective measures to provide civil compensation to victims of torture in
all cases, and recommended that Canada review its position under article 14 of the
Convention to ensure the provision of compensation through its civil jurisdiction to
all victims of torture.156
These observations do not compel a response from Canada. They do, however,
raise the prospect that Canada may continue to be criticized during subsequent
reviews of its performance, which could be a matter of embarrassment to the
government. The Committee Against Tortures findings therefore raise an important
question: what response to the torturestate immunity conundrum is available to
Canada?
153 UN CAT, Summary Record of The Second Part (Public) Of The 646th Meeting, UN Doc.
CAT/C/SR.646/Add.1 (May 2005) at paras. 41-43 [mimeo.].
154 Ibid. at para. 63.
155 Ibid. at para. 67.
156 Committee Against Torture Conclusions, supra note 2 at 3-4.
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D. Reconciling Human Rights and State Immunity
1. The Obstacles
As this article has suggested, courts and international tribunals have resisted
efforts to craft a human rights or even a jus cogens violation exception to a states
own immunity before the courts of another state. As the contending views at the
European Court of Human Rights in Al-Adsani (E.C.H.R.) and the Committee
Against Tortures comments to Canada suggest, there are different opinions on this
issue. Nevertheless, there is no incontrovertible legal reason to reject the ultimate
conclusion of most courts: the Torture Convention does not compel civil remedies
against torturing states in the courts of other states. A fortiori, there is no compelling
evidence that the availability of civil remedies for torture in that second state is itself
a jus cogens obligation. An act of torture in violation of a jus cogens prohibition
should not, as a matter of common sense, be entitled to immunity in civil court.
However, the Torture Convention itself does not codify that common sense.
The Immunities Convention and the domestic state immunities statutes of
Canada, the United Kingdom, and the United States are equally silent.157 Indeed, the
very failure of the Immunities Convention to grapple with the issue has prompted
some commentators to call for a human rights protocol to the treaty.158 Moreover, no
general state practice suggests a jus cogens exception to state immunity, recent soft-
law developments concerning reparations for human rights abuses notwithstanding.159
Those injured by a states human rights abuses may therefore be left to the tender
mercies of the courts of torturing nations or (non-existent) international tribunals
competent to adjudicate such matters and award compensation.160 In such
157 Nor is there a compelling argument to be made that art. 14 of the Torture Convention constitutes
a waiver of such immunity by ratifying states, permitting other states to assert civil jurisdiction. On its
face, art. 14 instructs each state party to ensure in its legal system that the victim of an act of torture
obtains redress and has an enforceable right to fair and adequate compensation … (supra note 1
[emphasis added]). To extract from this passage a waiver of immunity in the courts of another state
would reach too far.
158 See e.g. Christopher Keith Hall, UN Convention on State Immunity: The Need for a Human
Rights Protocol (2006) 55 I.C.L.Q. 411; Lorna McGregor, State Immunity and Jus Cogens (2006)
55 I.C.L.Q. 437.
159 See e.g. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, GA Res. 60/147, UN GAOR, 60th Sess., Supp. No. 49, UN Doc. A/RES/60/147
(2006). However, these instruments do not directly address the state immunity doctrine.
160 The Committee Against Torture, established by the Torture Convention, may be empowered to
issue views in response to individual complaints where the state party being scrutinized has agreed
to let it do so (supra note 1, art. 22(7)). These views are merely recommendations, however, and not at
all analogous to binding court judgments. Similar comments apply to the UN Human Rights
Committee, established by the International Covenant on Civil and Political Rights, supra note 10,
and entitled to hear individual complaints in relation to states that have ratified that treatys first
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circumstances, a violation of rights is quite likely without a remedy. As Amnesty
Internationals Christopher Keith Hall has lamented, Civil suits in foreign national
courts against states and their officials and agents are often the only effective
alternative to the fundamentally flawed classical international law methods which
have largely failed to provide full or, indeed, any reparations to victims of crimes
under international law.161 This difficult reality lies at the heart of state immunity. As
Justice LaForest noted for the Supreme Court of Canada in Re Canada Labour Code,
the fact that a plaintiff might be denied rights otherwise available to them is a
necessary consequence of Canadas commitment to policies of international comity
and reciprocity. Any time sovereign immunity is asserted, the inevitable result is that
certain domestic parties will be left without legal recourse. This is a policy choice
implicit in the Act itself.162
Some states have made slightly different policy choices. The U.S. FSIA was
amended in 1996 to give U.S. federal courts jurisdiction over foreign states in claims
in which money damages are sought against a foreign state for personal injury or
death that was caused by an act of torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or resources … for such an act
where done by an official, employee, or agent of such foreign state while acting
within the scope of his or her office, employment, or agency.163 This apparently
sweeping exemption for immunity is confined to only those states designated by the
U.S. government as state sponsors of terrorism, and to circumstances in which the
claimant or victim was a U.S. national when injured.164 It is, therefore, a limited
exemption that is best viewed as an extra penalty or sanctioning mechanism directed
against state sponsors of terrorism. Even so, according to expert testimony heard by
the Ontario Superior Court in Bouzari (Sup. Ct.), it remains the closest thing to a
statutory human rights exception to state immunity in existence.165
optional protocol, Optional Protocol to the International Covenant on Civil and Political Rights, 19
December 1966, 999 U.N.T.S. 302, Can. T.S. 1976 No. 47 (entered into force 23 March 1976). For a
determination by a Canadian court that a view rendered by the UN Human Rights Committee is not
binding, see Ahani v. Canada (2002), 58 O.R. (3d) 107 (C.A.). Meanwhile, if the torture victim is a
national of another state, that second state is competent to step into the shoes of its national and extend
diplomatic protection, up to and including an espousal of claims before an international tribunal.
Such a claim depends, of course, on that second state being willing to do so and there existing an
international tribunal with jurisdiction over the defendant state. The ICJ often lacks this jurisdiction.
For a discussion of diplomatic protection and espousal of claims, see Craig Forcese, Shelter from the
Storm: Rethinking Diplomatic Protection of Dual Nationals in Modern International Law (2005) 37
Geo. Wash. Intl L. Rev. 469.
161 Supra note 156 at 415.
162 [1992] 2 S.C.R. 50 at para. 67, 91 D.L.R. (4th) 449.
163 28 U.S.C. 1605(a)(7) (2000).
164 Ibid.
165 Swinton J. summarized the testimony heard in Bouzari (Sup. Ct.) as follows:
Mr. Greenwood [of the London School of Economics] provided a survey of
legislation on state immunity which shows that no state has enacted legislation which
includes an exception for human rights or jus cogens violations occurring outside the
165
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The U.S. law has provoked efforts at imitation in Canada. In the 38th Parliament,
then-opposition Member of Parliament Stockwell Day introduced a private members
bill amending the State Immunity Act to preclude immunity in any proceedings that
relate to any terrorist activity that the foreign state conducted on or after January 1,
1985.166 This law project died on the order paper in 2005. It remains to be seen
whether it will be resuscitated by the Conservative government with Day as the
minister of public safety. If it is, it will necessarily raise issues of public international
lawnot least, the fact that, like jus cogens exceptions for torture, no express
terrorism exception to state immunity appears to be part of customary international
law.
2. A Possible Solution
The final focus on this section is therefore on the gauntlet thrown down by the
Ontario Superior Court in Arar: if state immunity in relation to torture is too limiting,
it is for Parliament to respond with an amended State Immunity Act. In the real world,
however, Parliaments enthusiasm for such a law project would depend on the
international consequences it might precipitate. Not least, would a response from
Parliament that broadened the exceptions to state immunity to include torture be
consistent with international law?
The answer to this question is, quite possibly, provided it is done carefully.
Comments made by the Committee Against Torture in its questioning of Canadas
policy and the anti-terrorism amendments to the FSIA point the way. A state
committing an act of torture violates a jus cogens principle of international law.
Moreover, because the bar on torture is best viewed as an obligation erga omnes,167
forum. … The closest example to an assertion of jurisdiction over acts outside the forum
state is [the 1996 amendment to the U.S. FISA]. … [T]his is not directed broadly at acts
of torture, but rather terrorism. It does not support the proposition that there is general
or even emerging state practice accepting a departure from the principle of state
immunity from civil action for acts of torture outside the forum (supra note 3 at para.
72).
166 Bill C-394, An Act to Amend the State Immunity Act and the Criminal Code (terrorist activity),
1st Sess., 38th Parl., 2005, cl. 1. A parallel private members bill was introduced in the Senate (Bill S-
35, 1st Sess., 38th Parl., 2004-2005).
167 See Restatement (Third) of the Foreign Relations Law of the United States 702(o) (1987). See
also UN ESC, Commission on Human Rights, Report of the Special Rapporteur, Mr. P. Kooijmans,
pursuant to Commission on Human Rights resolution 1992/32, which noted:
The Special Rapporteurs mandate is a reflection of the fact that the international
community has come to the conclusion that the prohibition of torture is an obligation
for all States, whether or not they have ratified a treaty which explicitly contains this
prohibition. This conclusion is based, inter alia, upon the view of the International
Court of Justice which in 1970 stated that the obligation to respect the basic human
rights, to which the right not to be tortured belongs beyond any doubt, is an obligation
erga omnes for each and every State, an obligation which a State has vis-a-vis the
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this breach infringes obligations owed to the entire international community.
Alternatively, the act of torture constitutes a violation owed by a state party to the
Torture Convention to other state parties. Either way, the violation sparks
international rules of state responsibility. State responsibility is, loosely speaking,
international laws general remedy law.168 Among other things, the rules of state
responsibility authorize countermeasures by states wronged by a breach of
international obligations.
Countermeasures are steps taken by one state to induce compliance with
international law by another state that would otherwise be contrary to the
international obligations of an injured State vis–vis the responsible State.169 They
are a feature of a decentralized system by which injured States may seek to vindicate
their rights and to restore the legal relationship with the responsible State which has
been ruptured by the internationally wrongful act.170
Countermeasures are not limited to suspending performance of the same or a
closely related obligation to that breached.171 They are, however, subject to certain
prerequisites. The ICJ listed these preconditions in Gabkovo-Nagymaros Project:
In order to be justifiable, a countermeasure must meet certain conditions …
In the first place it must be taken in response to a previous international
wrongful act of another State and must be directed against that State. …
Secondly, the injured State must have called upon the State committing the
wrongful act to discontinue its wrongful conduct or to make reparation for it. …
In the view of the Court, an important consideration is that the effects of a
countermeasure must be commensurate with the injury suffered, taking account
of the rights in question.172
This approach was adopted by the ILCs draft articles on state responsibility.173
Under the draft articles, countermeasures are permissible so long as they are
proportional to the original breach, are limited in time until the target state again
community of States as a whole (UN Doc. E/CN.4/1993/26 (December 1992) at para.
10 [mimeo.]).
168 See I.A. Shearers definition of state responsibility: Frequently action taken by one state results
in injury to, or outrage on, the dignity or prestige of another state. The rules of international law as to
state responsibility concern the circumstances in which, and the principle whereby, the injured state
becomes entitled to redress for the damage suffered (I.A. Shearer, ed., Starkes International Law,
11th ed. (London: Butterworths, 1994) at 264).
169 ILC 2001, supra note 63 at 324.
170 Ibid.
171 Ibid. at 326.
172 (Hungary/Slovakia), [1997] I.C.J. Rep. 7 at paras. 83-85.
173 With regard to countermeasures, these draft articles likely codify existing customary
international law. See Daniel Bodansky & John R. Crook, The ILCs State Responsibility Articles
(2002) 96 A.J.I.L. 773 (noting that the ILC draft articles accept the lawfulness of countermeasures
but make them subject to significant substantive and procedural qualifications that seem largely to
reflect existing customary law at 786).
167
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conforms to its obligations, and do not themselves violate certain listed, core
principles of international law.174 While diplomatic and consular immunity are
included among the latter, state immunity is not.175 Certain procedural requirements
concerning notice must also be met. Specifically, the state imposing countermeasures
must [c]all on the responsible State … to fulfil its obligations [that are being
breached] and must [n]otify the responsible State of any decision to take
countermeasures and offer to negotiate with that State.176
It follows that Canada would be free to relax state immunity rules in response to a
violation of the prohibition on torture by another state for so long as those violations
persist. Opening the door to lawsuits seeking compensation for acts of torture would
be a step clearly directed at deterring the violation, and would be more than
proportional to the offence. Civil liability is, after all, largely about compensation for
injury done.
Of course, in order to comply with rules on countermeasures, Canada would have
to call upon the violating state to meet its obligations, and then give notice of its
intent to introduce the countermeasure. A blanket waiver of rules of state immunity
for torture in Canadas State Immunity Act would not satisfy these requirements.
However, Canada could adopt an approach analogous to the FSIA rules allowing
litigation against state sponsors of terrorism. As noted above, this FSIA exception to
immunity is triggered only when the state is designated by the U.S. government as a
supporter of terrorism. Put another way, the abrogation of state immunity is
dependent on executive branch approval. Likewise, Canadian rules allowing lawsuits
against states for torture could condition the removal of state immunity on
certification by the Canadian government.
This proposed system walks a thin line between Canadas international
obligations. Most notably, this certificate prerequisite would enable the government
to ensure that the removal of state immunity in individual cases complied with
international countermeasures notice rules. It would also answer objections that
erosion of state immunity might complicate Canadas diplomatic relations by
prompting courts to meddle in areas attracting retaliation from other states. Where
diplomatic sensitivities are particularly acute, the government might choose not to
issue the requisite certificate.
Of course, there is an obvious political flaw to this proposed system. Obtaining
the blessing of a reluctant Canadian foreign service for lawsuits against foreign states
might be difficult, even when permissible under the law of countermeasures and
desirable for assorted other reasons. If this is a real concern, nothing precludes
Parliament from limiting the governments discretion to reject certification
174 ILC 2001, supra note 63 at 341, 345.
175 Ibid. at 333. For a discussion of countermeasures and state immunity, see Adams, supra note 116
at 272-74.
176 ILC 2001, ibid. at 345.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
168
applications under an amended State Immunity Act by, for example, imposing clear
decision-making criteria and transparency requirements. With clear criteria, decisions
by the government to extend (or not) the required certification would then be
amenable to potentially searching judicial review under standard Canadian
administrative law doctrines.
[Vol. 52
Conclusion
Sometime before Canada submits its sixth periodic report to the Committee
Against Torture in 2008, it will have to consider how best to respond to the
committees position on civil remedies for torture victims. Ideally, its response should
amount to more than a simple reassertion of its present position on state immunity.
This article suggests that while the government is right that state immunity remains
an important consideration in domestic litigation concerning foreign acts of torture, it
is far from an absolute barrier. There is a compromise position lying between the
horns of the dilemma presented by the Committee Against Torture in its criticisms of
Canada.
First, this article urges that not all forms of state immunity are equal and that the
scope of immunity ratione materiae should not be confused with that of its ratione
personae counterpart. Specifically, immunity ratione materiae is, by definition,
limited to matters sufficiently affiliated with a state as to merit immunity as official
acts. This definitional prerequisite creates room for a human rights exception to
immunity where lawsuits are brought against individuals, as opposed to states
themselves. Put simply, state agents violating fundamental international human rights
norms do not act within the scope of their agency, not only where the state itself has
ratified the treaty giving rise to the norm, but also where that norm has customary
status in international law. In these circumstances, there should be no question of state
immunity. This is a conclusion supported by the House of Lords Pinochet holding
and the English Court of Appeals decision in Jones (C.A.), but one that did not
attract the support of the House of Lords on appeal in Jones (H.L.). The matter has
not clearly been addressed in Canada to date.
Second, the international law of countermeasures opens the door to a modest
rethinking of Canadas existing State Immunity Act in relation to the immunity of
states themselves. So long as the prerequisites for countermeasures are met,
international law permits Canada to limit state immunity for acts of torture that
violate obligations owed to Canada as a member of the international community and
as a party to the Torture Convention.
Generally speaking, Canada is not obligated to level these countermeasures. If
the Committee Against Torture is correct, however, Canada must do something to
give article 14 of the convention full form, even in relation to foreign torture by
foreign states. The countermeasure option strikes a compromise between an
aggressive interpretation of article 14 and an unflagging commitment to state
immunity. By requiring certification by the government, Canada could relax state
immunity for violations of the ban on torture without placing its foreign policy in the
hands of courts. Nor would relaxation under these terms open the floodgates. Left
C. FORCESE DE-IMMUNIZING TORTURE
2007]
intact would be conventional jurisdictional limitations on Canadas courts and the
forum non conveniens doctrine.
In summary, the countermeasure option would deploy Canadas courts in
denouncing torture without undermining the essence of state immunity. It is a
plausible route out of an otherwise impossible dilemma.
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