Lawsuits as the Expression of Politics by Other Means: Iran and the Justice for Victims of Terrorism Act

As has been extensively reported, the Canadian government has released its first list of state sponsors of terrorism stripped of state immunity under Canadian law.  That designation, anticipated by the recently enacted Justice for Victims of Terrorism Act and related amendments to the State Immunity Act, reads: 

Whereas the Governor in Council, on the recommendation of the Minister of Foreign Affairs made after consultation with the Minister of Public Safety and Emergency Preparedness, is satisfied that there are reasonable grounds to believe that each of the foreign states set out on the list established by the annexed Order supported or supports terrorism;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to subsection 6.1(2) of the State Immunity Act, makes the annexed Order Establishing a List of Foreign State Supporters of Terrorism.

The Order apparently then lists Syria and Iran, although the actual list does not appear to be included in the document accessible through PCO's list of orders-in-council at the time of this writing.

I have opined before that the law (in its original, but essentially unmodified iteration) lacks some of the qualities that might render it compliant with public international law.  In its present manifestation, it is vulnerable to the objection that state immunity (in its public international law guise) knows no exception for terrorism.  (Whether it should is, of course, another question).  Since the government of Canada employs some of the best international lawyers on the planet, they those who made this decision are likely aware of this problem. 

In proceeding, therefore, they likely made a conscious choice to favour political optics over legal rules, appreciating all the while that there is no international legal venue that Iran or Syria could employ to challenge the Canadian measure.  The International Court of Justice could not compel Canada's presence, since neither Syria nor Iran have accepted that body's compulsory jurisdiction and there is no other basis of jurisdiction that I can see.

Is it all worth it?  Well, there will certainly be some domestic lawsuits from victims stemming from the designation.  Whether this is mere legal theatre will depend on whether there are any assets to collect.  I suspect Iran and Syria have few assets in Canada.  Iran certainly has a nice embassy building in downtown Ottawa, festooned with barred windows.  But seizing that goes beyond state immunity issues.  Now we would be talking diplomatic immunities and the inviolability of diplomatic premises.  One wonders at whether minds have been busy in the Department of Foreign Affairs asking the question of whether, when a state discontinues diplomatic relations with another government, there comes a point in which diplomatic assets lose their diplomatic inviolability. 

There has, in fact, been a discussion of whether a diplomatic premises can be stripped of that status in the context of the Assange case.  Mr. Assange sought refuge in the Ecuadoran embassy in the United Kingdom.  Much of the debate in that case hinged on whether the termination of diplomatic status is permitted where the premises is still being used for diplomatic purposes.  Where it is not, because diplomatic relations are ruptured, well then that is another question...for someone with more time than I have at present.

Of course, there is a quid pro quo in all this.  If the Iranian embassy in Ottawa is on the asset seizing block, say goodbye to the Canadian embassy in Tehran.