GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Working

Abstract

On June 27, 2023, Iran sued Canada in the International Court of Justice (ICJ), alleging that the exception for state supporters of terrorism in Canada’s State Immunity Act violates customary international law. This article argues that Canada’s terrorism exception is consistent with customary international law. Although it is commonly assumed that state-supported terrorism is a sovereign activity and that a general and consistent practice of states accompanied byopinio juris>is required to create an exception to state immunity, in fact, neither assumption is correct.

Under the restrictive theory of immunity, foreign states are generally immune from suit based on their sovereign activities but are not immune from suit based on their non-sovereign activities. Non-sovereign activities are not limited to commercial activities. They include any activity in which private persons can engage. Terrorism and support for terrorism fall within that definition.

Even if terrorism were considered a sovereign activity, it would not necessarily follow that foreign states are immune from suit based on such activity. This argument depends on the baseline for determining customary international law rules of sovereign immunity. A baseline of immunity presumes that foreign states are immune from suit and requires a general and consistent practice of states to create exceptions. A baseline of jurisdiction, by contrast, presumes that foreign states may be sued and requires a general and consistent practice of states to create immunity. Drawing on evidence from the transition from the absolute to the restrictive theory, this article argues that the proper baseline here is one of jurisdiction and that a general and consistent practice of granting immunity from suits based on terrorism and support for terrorism is required to establish a rule of immunity from such suits. No such practice exists with respect to terrorism.

GW Paper Series

2025-29

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