State immunity as a tool of foreign policy : the unanswered question of certain Iranian assets

The Foreign Sovereign Immunities Act contains a number of “exceptions” to state immunity that are unique to the US legal system. This issue came before the International Court of Justice in Certain Iranian Assets, where Iran submitted that non-recognition of its sovereign immunity due to alleged sponsorship of terrorism was in breach of international law. In its decision on the preliminary objections, the Court dismissed this aspect of Iran’s claims on jurisdictional grounds. Yet, the question of the legality of the US approach to state immunity lingers on. This article tackles this issue in two parts. The first part shows that “exceptions” to state immunity for state-sponsored terrorism, unlawful expropriations, and certain territorial torts are in breach of well-established principles of state immunity under international law. At the same time, these “exceptions” are conceived as responses to prior wrongful acts of the states whose immunity is denied. The second part argues that non-recognition of state immunity can, on certain conditions, qualify as a lawful countermeasure pursuant to the international legal rules governing the implementation of international responsibility. In order to reach this conclusion, the article proposes a distinction between “executive”, “mixed”, and “judicial” measures. It addresses potential objections to countermeasures affecting state immunity and shows that various measures may comply with the relevant requirements. Construing non-recognition of state immunity as a countermeasure provides the most suitable legal framework to allow the pursuit of certain foreign policy goals while preserving well-established principles of international law.