Exceptions to Sovereign Immunity: Iranian Case

A. Introduction.

The principle of a state’s and a state’s officials’ judicial immunity has long been recognized in international customary and treaty law. Nevertheless, an evolving nature of international law has brought about heated arguments for changes in the principle’s ambit, especially regarding human rights violations. The United States is premier in skirting the principle’s scope by introducing various limitations, such as anti-terrorism exception.

In 1999, the Iranian parliament passed a similar legislation[1] which grants Iranians a right to sue foreign states before Tehran’s Public Courts for damages arising from, among others, foreign states’ actions violating international laws and norms, such as breach of international treaties, a breach of fair trial, extraterritorial application of domestic laws, and excessive enforcement of United Nations Security Council’s sanctions.[2]

The legislation has almost been unnoticed at international level. One possible reason for this has to do with the fact that the Iranian government is probably using the legislation as a legitimacy tool for dealing with internal pressures, especially regarding nuclear deal’s unfruitful outcomes. However, the exacerbation of Iran-US tensions has recently brought the legislation to light, at least, domestically. Due to this exacerbation of Iran-US tensions, the Iranian parliament abolished the original legislation of 1999 and its subsequent amendments, replacing it with a new legislation on March 3, 2012 with some modifications. The modifications are primarily concerned with the expansion of the legislation’s jurisdiction and establishment of an Advisory Committee to increase coordination among various governmental branches.

The legislation is very concise and is meant to be a “countermeasure” against states whose actions violate Iran’s or Iranian officials’ judicial immunity. The Iranian Foreign Ministry is in charge of designating and introducing states that fall within the legislation’s scope.

The scope of the legislation is far-reaching. It not only covers damages arising from states’ actions sponsoring terrorism but also damages arising from violation of international laws and norms. The legislation also makes it possible to execute a judgment against a state’s or a state’s officials’ assets or assets that fall within the state’s control.  In accordance with Tehran’s head of judiciary, 300 cases have been decided against the United States, exceeding 171 billion dollars in value.[3] Unfortunately, the decisions are not publicly available.

The stated purpose of the legislation is to “confront and prevent violation of international laws and norms.” It also appears that Iran uses the legislation as a negotiation tool; Tehran’s head of judiciary has stated that “the decisions played a role in negotiations regarding prisoners’ exchange and the United States’ restitution of some of Iranian properties among others.”[4] Tehran’s head of judiciary has also said that “the nature of the decisions rendered under the Act is such that have particular functions in international scenes.”[5] However, he has not elaborated on the nature of such functions.

Therefore, Iran is apparently using the legislation as a political tool rather than being concerned about violations of international law. The lack of clear and transparent mechanisms for calculation of damages also speaks to this point. In fact, in most cases, the huge amount of compensations seems to have a mere symbolic nature without an actual chance of their enforcement.

I will only address the kind of laws that a court must apply in deciding the cases. Therefore, issues regarding the constitutionality of the legislation and its validity under international law are beyond the scope of this Note.

B. Applicable Law.

 Article 1 of the legislation provides that a judge must decide a dispute in accordance with law, failing to clearly identify the kinds of laws that the judge must apply. The legislation’s Executive Regulation also does not clearly address this concern. Article 2 of the Executive Regulation sets forth that: “Lawsuits, proceedings, judgments, and judgments’ enforcement shall be done in accordance with law, the Civil Procedure Code, and other relevant laws and regulations.” The context apparently speaks to the applicability of the Iranian statutes, because; in accordance with the domestic rules of interpretation, had the legislature wanted to incorporate applicability of international law, it could simply do so.

Some scholars have argued that if Article 2 of the Executive Regulation is construed to mean a conclusive application of Iranian laws, it will give rise to absurd results, because in most cases there will be no connection between Iranian laws and a harmful act;[6] therefore, to avoid such illogical result, Article 2 must be interpreted to mean procedural formalities regarding lawsuits, proceedings, judgments, and judgments’ enforcement. In these scholars’ view, Article 2 deals only with procedural issues regarding proceedings, judgments, and judgments’ enforcement, such as applicable rules to default judgments. Accordingly, because international law has long authorized the application of procedural laws of lex fori to disputes, the application of the Iranian Procedural laws will face no constraint.

Other scholars have argued that because the legislation addresses damages arising from violations of international law, a court must apply international law.[7] And, because the legislation is silent regarding identification of applicable international law, the court must consider international courts’ practices to maintain the court’s impartiality and to avoid fragmentation of international law.

It appears that the legislation’s text and object also confirms this policy argument. The legislation aims at confronting and preventing violation of international laws and norms; thus, it is self-explanatory that Iranian domestic laws cannot speak to the rest of the world by prescribing what constitutes violation of international norms in the first place.

The little available information regarding the legislation’s jurisprudence also confirms the applicability of international law, although the reliability of this information might be challenged, because cases with possible national and international political implications are usually not public so that the available information may not reflect the whole picture.[8] In any event, in accordance with statements of justice Asanlu, a member of Tehran’s Public Court, Branch 55, in drafting judgments, regard has been paid to “principles of justice and equity.”[9] Moreover, in accordance with Asanlu’s statements, the judgments comply with “international standards and use decisions of the International Court of Justice both in terms of format and substance as a model.”[10]

One publically available decision is also in sync with this general claim.[11] On 26 July, 2012, in a dispute brought against Italy for restitution of properties seized by Italy’s police, Tehran’s Public Court, Branch 206, invoking Article 31 of Vienna Convention on Consular Relations, has put forward that the principle of states’ judicial immunity is absolute and the only exception to the principle is the Legislation on the Judiciary’s Jurisdiction to Hear Claims against Foreign States.[12] Because, the Iranian Foreign Ministry had not designated Italy as violating Iran’s or Iranian officials’ judicial immunity, the legislation does not apply to Italy. The Court of Appeal of Tehran, Branch 7 confirmed Tehran’s Public Court’s decision.[13]

The Appeal Court invoked an international treaty to adjudicate the dispute. However, given the far-reaching scope of the legislation which includes violations of international laws and norms, the question then becomes how a court must approach violations of international customary law? The question is really important, because establishment of customary international law will require courts to engage in comparative analysis to identify states’ practice and opinio juris. This may be a challenging task for Iranian courts, because the Iranian courts’ access to international legal scholarship, jurisprudence, and legal databases is limited. This could be particularly daunting regarding definition of terrorist individuals and groups which is one of the main themes of the legislation’s subject matter jurisdiction. Due to the lack of customary and treaty law regarding the issue, it is likely that the term will be open to ambivalent treatment by Iranian courts. It is also likely that the term will be subject to political intrusion, because the authority to designate a list of States sponsoring terrorist individuals’ or groups’ actions has been vested in the Iranian Foreign Ministry. Further, it is not obvious whether a court has authority to review the Foreign Ministry’s determination. Nevertheless, it appears from justice Asanlu’s statements that a court will decide these cases relying on principles of justice or equity, the so called ex aequo et bono. However, the problem with such approach is that deciding cases in accordance with ex aequo et bono is subject to the agreements of disputing parties while it is unlikely that a sued State would ever give consent to such dispute.

C. Conclusion.

Iran is among few states in the world that has taken actions to narrow the scope of the principle of sovereign immunity. However, it deviates from other states by broadening the scope of actions that Iranians may bring against foreign states. It not only covers actions against states sponsoring terrorism but also encompasses states violating international laws and norm. The legislation suffers from various ambiguities; most importantly, regarding the kinds of applicable laws that a judge must apply in resolving cases. Overall, it appears that the judge will apply international law, though it is difficult to say it for sure due to a lack of access to decisions.

[1] The legislation on “The Judiciary’s Jurisdiction To Hear Claims Against Foreign States,” available at http://rc.majlis.ir/fa/law/show/809987.

[2] Hossein Sharifi Tarazkouhi and Sasan Modarres Sabzevari, A Judicial Strategy to Understand ‘Measures Contrary to International Law’ in the Iranian Legal System (Case Study: EconomicSanctions), 57 International Law Review 29, at 30 (2017).

[3] Tehran’s head of judiciary’s recent statement, Mehr News Agency, (9 October, 2017), available at https://www.bahesab.ir/time/conversion/ (last visited on December 10, 2017).

[4] Id.

[5] Id.

[6]  Alireza Mazaheri, The Evolution of the Principle of State’s Immunity: the Effect of Legislation on the Judiciary’s Jurisdiction to Hear Claims against Foreign States and the U.S Anti-terrorism Act, (30) International Law Review 119, at 132 (2004).

[7] See Supra note 2, at 30.

[8] See generally Farshad Rahimi Dizgovin, Enforcement of International Treaties by Domestic Courts of Iran: New Developments, 58(1) Virginia Journal of International Law (forthcoming 2018).

[9] Iranian Judiciary’s Research Center, the Report of Expert Roundtable on Examination of Foundations and Analysis of Tehran’s Public Court Decisions on Claims regarding Material and Moral Damages arising from the United States’ Harmful Acts (27 August, 2016), available at http://www.ijri.ir/showcontent.html?i=aE9mc0VqWEt0UFk9.

[10] Id.

[11] The Court of Appeal of Tehran, Branch 7, Case No. 9109970220700985 (19 December, 2012)

[12] Id.

[13] Id.