Jean Robert on International Law and State Immunity: Canada Amends Its State Immunity Act to Allow Victims of Terrorism to Sue in Canadian Courts

Last Spring, Canada decided to follow the US and added an exception to its State Immunity Act, removing jurisdictional immunity for states that support terrorism. The government issued a list of foreign states that support terrorism. Iran and Syria were recently included in the Canadian list. Many U.S. victims of Iran-sponsored terrorism have flocked to Canada with U.S. court judgments in hand to have them enforced on Iranian assets in Canada.

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Essentially, the acts state that the courts of those countries have no jurisdiction to handle lawsuits directed against foreign states. The acts usually provide limited exceptions to the immunity rule such as when a foreign state causes bodily injury or material damage in the other country. Then, there is no immunity and the victim can sue the foreign country in the courts of the country where the injury or damage occurred. It is easy to understand why in some situations this would be the best option, as the alternative could sometimes be to go before the subservient courts, if they even exist, of a foreign dictatorship, for example.

Ten years after the United States of America did it, last spring, Canada decided to follow and added a new exception to its State Immunity Act, removing jurisdictional immunity for states that support terrorism. The government sets out a list of foreign states that have supported or support terrorism. The list can be revised to add or remove states from the list.

In Canada, Iran and Syria were recently included in the list. This explains why many U.S. victims of Iran-sponsored terrorist attacks have flocked to Canada with U.S. court judgments in hand to have them recognized by Canadian courts in order to enforce them on assets of Iran in Canada.

Unfortunately, adding this exception to the Canadian State Immunity Act was of no help to the son of a photo-journalist who was suing Iran in a Canadian court for the death of his mother in Iran, allegedly resulting from a severe beating and torture by prison guards in Teheran in 2003. The Canadian courts threw out his lawsuit, on the basis of immunity.

Indeed the new provision of the State Immunity Act -- section 6.1 -- which came into force on March 13, 2012, does not include beatings or torture by state agents.

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