₁ A (FC) & ors v. Secretary of State for the Home Department, [2005] U.K.H.L. 71 at para. 160.

₂ See Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda, <http://wwwi .umn.edu/humanrts/instree/rwandatrib-statute1994.html>; Article 7(2) of the Statute of the International Criminal Tribunal for the Former Yugoslavia <http://wwwi.umn.edu/humanrts/icty/statute.html>; Article 27 of the Statute of the International Criminal Court, <http://untreaty.un.org/cod/icc/statute/romefra.htm>; Article 6(2) of the Statute of the Special Court for Sierra Leone, Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138, annex: Statute of the Special Court; and Article 29(2) of the Law on the Establishment of Extraordinary Chambers in the Court of Cambodia, <http://www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf>.

₃ See R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3), [2000] 1 A.C. I47 (House of Lords) [Pinochet].

₄ Al-Adsani v. UK, (2002) 34 E.H.R.R. 11, <http://www.worldlii.org/eu/cases/ECHR/2001/761.html> [Al-Adsani].

₅ Bouzariv. Iran, (2004), 243 D.L.R. (4th) 406 (Ont. C.A) [Bouzari].

₆ Jones v. Saudi Arabia, [2006] U.K.H.L. 26 [Jones].

₇ UK State Immunity Act, 1978, c. 33

₈ European Convention on Human Rights, (1950) E.T.S. 5 [ECHR].

₉ Al-Adsani, supra note 4 at para. 54.

₁₀ Canadian State Immunity Act, R.S.C. 1985, c. S-18

₁₁ Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

₁₂ Jones, supra note 6 at paras. 1, 22, 45, 46, 60, 61,

₁₃ Bouzari, supra note 5 at para. 60.

₁₄ The exceptions are contained in the Canadian State Immunity Act, supra note 10 at ss. 4–8. Section 4 concerns waiver of immunity; section 5 deals with the com-mercial activity exception; section 6 deals with death or personal or bodily injury and property damage that occurred in Canada; section 7 deals with actions in rem and in personam regarding ships and their cargo, and section 8 deals with interest in property arising by way of succession, gift, or bona vacantia.

₁₅ As the court put it, “Section 3 of the SIA accords complete state immunity except as provided by the SIA. And, as we have seen, none of the relevant exceptions in the SIA permits a civil claim against a foreign state for torture committed abroad. Canada has clearly legislated so as not to create this exception to state immunity whether it has an international law obligation to do so or not.” Bouzari, supra note 5 at para. 67.

₁₆ For a discussion to the contrary, see the discussion later in this article under the heading “A Peculiar Canadian Angle to the Question: The Canadian Bill of Rights.”

₁₇ Ian Brownlie puts the point succinctly as follows: “The dominant principle, normally characterized as the doctrine of incorporation, is that customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as not inconsistent with Acts of Parliament or prior judicial decisions of final authority.” Brownlie, Ian, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 41 Google Scholar; and Malanczuk, Peter, Akehurst’s Modern Introduction to International Law, 7th ed. (London: Routledge, 1997) at 69.Google Scholar

₁₈ Chiefly, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, G.A. res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984).

₁₉ Section 7 of the Canadian Charter of Rights and Freedoms, supra note 11, provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

₂₀ Bouzari, supra note 5 at paras. 96–103.

₂₁ Canadian Bill of Rights, S.C. 1960, c. 44.

₂₂ Article 6(1) of the ECHR, supra note 8, provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

₂₃ Lord Bingham, notably, questioned the correctness of the view of the European Court of Human Rights (ECtHR) in this regard, although he did eventually concede the point. Jones, supra note 6 at para. 14. See also Lord Hoffman’s speech at para. 64.

₂₄ Macmillan, Lord, “Law and Other Things,” in Paton, G. and Derham, D., A Textbook of Jurisprudence (Oxford: Clarendon Press, 1972), 48 at 229.Google Scholar

₂₅ Bouzari, supra note 5 at para. 68.

₂₆ As the court put it, “[h]owever, as Professors Brunnée and Toope have written, whether Canada’s obligations arise pursuant to treaty or to customary international law, it is open to Canada to legislate contrary to them. Such legislation would determine Canada’s domestic law although it would put Canada in breach of its international obligations” (ibid. at para. 66). The court’s reference to Brunnée and Toope is to Brunnée, Jutta and Toope, Stephen J., “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Can. Y.B. Int’l L. 3, <http://www.nji.ca/cciawj/papersE1.htm>.Google Scholar

₂₇ See Bouzari, supra note 5 at para. 95.

₂₈ Australian Law Reform Commission, Report No. 24: State Immunity (Canberra: Australian Government Publishing Service, 1984) at 7, para. 8.

₂₉ Ibid; see also United Nations, Report of the Working Group on Jurisdictional Immunities of States and Their Property,’ annexed to the Report of the International Law Commission to the General Assembly on the Work of Its Thirtieth Session, in Yearbook of the International Law Commission, 1978, vol. II, Part Two, 154, Doc. A/CN.4/SER. A/ 1978/Add.1 (Part 2) (1978) at para. 26; Bankas, Ernest, The State Immunity Controversy in International Law (Berlin: Springer, 2005) at 14 Google Scholar; Lauterpacht, H., “The Problem of Jurisdictional Immunities of Foreign States” (1951) 28 Br. Y.B. Int’l L. 220 at 229Google Scholar; and Caplan, Lee, “State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory” (2003) 97 Am. J. Int’l L. 741 at 745.CrossRefGoogle Scholar The Schooner Exchangev. McFaddon, (1812) 7 Cranch 116 (United States Supreme Court) [Schooner Exchange].

₃₀ As the chiefjustice put it, “[t]his full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extra territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, has given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation." Schooner Exchange, supra note 29 at 137.

₃₁ See Australian Law Reform Commission, supra note 28; and Lauterpacht, supra note 29.

₃₂ Fox, Hazel, “International Law and Restraints on the Exercise of Jurisdiction by National Courts of States,” in Evans, Malcolm, ed., International Law (Oxford: Oxford University Press, 2003), 358 at 360.Google Scholar See also The Parlement Belge (1880), 5 P.D. 197 (C.A., England); and Porto Alexandre, [1920] P. 30; and Berizzi Brothers Co. v. The SS Pesaro (1926), 271 U.S. 562 (US S.C.).

₃₃ In Dralle v. Republic of Czechoslovakia, (1950), 17 I.L.R. 127, the Supreme Court of Austria conducted a comprehensive survey of practice and concluded that in light of increased activity of states in the field of commerce, the traditional doctrine of absolute immunity was no longer tenable in international law. This case was cited with approval by the Supreme Constitutional Court of the Federal Republic of Germany in The Empire of Iran Case, (1963) 45 I.L.R. 57. See Shaw, Malcolm, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997) at 497.Google Scholar In 1972, the Council of Europe adopted the European Convention on State Immunity, ETS No. 74, which is colloquially known as “the Basel Convention.” It entered into force on 11 June 1976 following ratification by three states. It has now been ratified by eight states (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland, and the United Kingdom) and signed by one other state (Portugal). See Al-Adsani, supra note 4 at para. 22.

₃₄ Malanczuk, supra note 17 at 119. See generally Allen, Eleanor Wyllys, The Position of Foreign States before National Courts: Chiefly in Continental Europe (New York: Macmillan Company, 1933).Google Scholar

₃₅ Allen, supra note 34 at 301.

₃₆ See Garnett, R., “State Immunity in Employment Matters” (1997) 46 Int’l & Comp. L. Q. 81 at 82.CrossRefGoogle Scholar

₃₇ See Playa Laga (Owners of cargo lately laden on board) v. 1 Congresodel Partido, [1983] 1 A.C. 244 at 266 (House of Lords, per Lord Wilberforce). See also Controller and Auditor-General v. Sir Ronald Davidson, [1996] 2 N.Z.L.R. 278 (C.A., NZ) [Sir Ronald Davidson].

₃₈ Article 53 of the Vienna Convention on the Law of Treaties, <http://sedac.ciesin.org/pidb/texts-menu.html>, defines the concept as follows: “[A] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

₃₉ Ibid. at Article 53.

₄₀ Shaw, Malcolm, International Law, 4th ed. (Cambridge: Cambridge University Press, 1997) at 97.Google Scholar For a critical review of jus cogens in international criminal law, see Bassiouni, C., “International Crimes, Jus Cogens and Obligatio Erga Omnes” (1996) 59 L. & Cont. Problems 63.CrossRefGoogle Scholar

₄₁ Prosecutor v. Kupreski & ors (Judgment), 14 January 2000, para. 520 (ICTY Trial Chamber), <http://www.un.org/icty/kupreskic/trialc2/judgement/index.htm>; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Provisional Measures), (1993) I.C.J. Rep. 325 at 440–41, paras. 100 and 104 (Separate Opinion ofJudge Lauterpacht); and Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections), (1996) I.C.J. Rep. 595 at 765 (Dissenting Opinion of Judge ad hoc Kreca).

₄₂ See Malanczuk, supra note 17 at 58.

₄₃ Ibid. at 58.

₄₄ See Prosecutor v. Delali (Judgment), 16 November 1998 at para. 454 (ICTY Trial Chamber), <http://www.un.org/icty/celebici/trialc2/judgement/index.htm>. See also Prosecutor v. Kunarac (Judgment), 22 February 2001 at para. 466 (ICTY Trial Chamber), <http://www.un.org/icty/kunarac/trialc2/judgement/index.htm>.

₄₅ Ferrini v. Federal Republic of Germany, Judgment no. 5044 of 11 March 2004. Carlo Focarelli of Italy’s University of Perugia and LUISS University of Rome has provided a summary of this case under the title “Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision” (2005) 54 Int’l & Comp. L. Q. 951. He advises that the Italian text of the judgment is available at (2004) 87 Rivista di diritto internazionale 540–51. See also Andrea Bianchi’s case comment at (2005) 99 Am. J. Int’l L. 242.

₄₆ Italian judges and lawyers have traditionally accepted this provision as requiring their courts to apply international law automatically and directly as if it were Italian law. See Focarelli, supra note 45 at 951–52. Indeed, Italy has neither signed nor ratified the European Convention on State Immunity, supra note 33.

₄₇ See Focarelli, supra note 45 at 953–54.

₄₈ Ibid. at 954.

₄₉ In the words of his lordship, “[t]he decision has been praised by some distinguished commentators (among them Andrea Bianchi in a case note in ( 2005) 99 Am. J. Int’l L. 242), but another ( Gattini, Andrea, “War Crimes and State Immunity in the Ferrini Decision” (2005) 3 J. Int’l Crim. J. 224 at 231 CrossRefGoogle Scholar) has accused the court of ‘deplorable superficiality’” (ibid.) See also Fox, Hazel, QC, “State Immunity and the International Crime of Torture” (2006) 2 E.H.R.L. Rev 142.Google Scholar The Ferrini decision cannot in my opinion be treated as an accurate statement of international law as generally understood and one swallow does not make a rule of international law. The more closely reasoned decisions in Bouzari v. Islamic Republic of Iran, (2002) 124 I.L.R. 427, (2004) 71 O.R. (3d) 675, are to the contrary effect.” Jones, supra note 6 at para. 22. To the same effect, see also Lord Bingham’s indication that he would consider cases from national courts “only to the extent that they express principles widely shared and observed among other nations” (ibid. at para. 20).

₅₀ In the words of Lord Hoffman, “[t]hat leaves the Italian Ferrini case, Ferrini v. Federal Republic of Germany, which exhibits the same bare syllogistic reasoning as the judgment of the minority in Al-Adsani. In a thoughtful comment on the case by De Sena, Pasquale and De Vittor, Francesca (“State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case” (2005) 16 E.J. Int’l L. 89)CrossRefGoogle Scholar the authors acknowledge these shortcomings and accept that a jus cogens prohibition of torture does not entail a corresponding exception to state immunity. But they say that the Ferrini case should be seen rather as giving priority to the values embodied in the prohibition of torture over the values and policies of the rules of state immunity. I think that this is a fair interpretation of what the court was doing and, if the case had been concerned with domestic law, might have been regarded by some as ‘activist’ but would have been well within the judicial function. As Professor Dworkin demonstrated in Law’s Empire (1986), the ordering of competing principles according to the importance of the values which they embody is a basic technique of adjudication. But the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to ‘develop’ international law by unilaterally adopting a version ofthat law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states. (See Al-Adsani 34 EHRR 273, 297, para. O-II9 in the concurring opinion of judges Pellonpää and Bratza).” Jones, supra note 6 at para. 65 [emphasis added], as were the words “entail” and “values,” which were emphasized in Lord Hoffman’s speech.

₅₁ Jones, supra note 6 at para. 101.

₅₂ Lauterpacht, supra note 29 at 228.

₅₃ United Nations, Preliminary Report on Jurisdictional Immunities of States and Their Property, by Mr Sampong Sucharitkul, Special Rapporteur, Doc. A/CN.4/323, in Documents of the Thirty-First Session (excluding the report of the Commission to the General Assembly), Yearbook of the International Law Commission, 1979, vol. II, Part One, Doc. A/CN.4/SER.A/1979/Add.1 (Part 1) at 231, para. 23. In their report of the preceding year, the ILC Working Group on Jurisdictional Immunities of States and Their Properties had also observed as follows: “Customary law in this connexion appears to have grown largely out of the judicial practice of States, since the question of extent of jurisdiction of a municipal court is invariably determined by the court itself … The practice of States, both judicial and governmental, will therefore have to be consulted as primary evidence of the existence of rules of international law, and also as indications of the direction in which international law is progressively developing.” United Nations, supra note 29 at para. 18.

₅₄ Fox, Hazel, The Law of State Immunity (Oxford: Oxford University Press, 2002) at 17.Google Scholar

₅₅ According to the chiefjustice, “This case involves the very delicate and important inquiry, whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States.

The question has been considered with an earnest solicitude, that the decision may conform to those principles of national and municipal law by which it ought to be regulated.

In exploring an unbeaten path, with few, if any, aids from precedents or written law, the court has found it necessary to rely much on general principles, and on a train of reasoning, founded on cases in some degree analogous to this.” Schooner Exchange, supra note 29 at 135–36 [emphasis added].

₅₆ As the ILC Working Group on Jurisdictional Immunities observed, “[e]vidence of rules of international law on State immunities appears to be eminently available primarily in the judicial and governmental practice of States, in the judicial decisions of national courts, in the opinions of legal advisers to governments, and partially in the rules embodied in national legislation as well as international conventions of universal or regional character within the limits of the subject-matter concerned.” United Nations, supra note 29 at para. 17.

₅₇ Ibid. at para. 27.

₅₈ Rahimtoola v. Nizam of Hyderabad, [1958] A.C. 379.

₅₉ Trendtex Trading Corporation v. Central Bank of Nigeria, [1977] 2 W.L.R. 356 [Trendtex].

₆₀ See Lauterpacht, supra note 29, generally, especially at 250 et seq.

₆₁ According to the working group, “the Pinochet case has emphasized the limits of immunity in respect of gross human rights violations by State officials.

Although the judgement of the House of Lords in that case only holds that a former head of State is not entitled to immunity in respect of acts of torture committed in his own State and expressly states that it does not affect the correctness of decisions upholding the plea of sovereign immunity in respect of civil claims, as it was concerned with a criminal prosecution, there can be no doubt that this case, and the widespread publicity it received, has generated support for the view that State officials should not be entitled to plead immunity for acts of torture committed in their own territories in both civil and criminal actions.” United Nations, Report of the Working Group on Jurisdictional Immunities of States and Their Property,’ appendix, annexed to the Report of the International Law Commission on the Work of Its Fifty-First Session, 3 May–23 July 1999,A/54/10, Yearbook of the International Law Commission, 1999, vol. II, Part Two, 172, Doc. A/CN.4/SER. A/1999/Add.1 (Part 2).

₆₂ In this connection, one notes the following authoritative commentary: “The practice of states in this context embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic dispatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.” Jennings, R. and Watts, A., Oppenheim’s International Law, 9th ed., vol. 1 (Peace) (London and New York: Longman, 1996) at 26.Google Scholar See also Brownlie, supra note 17 at 6; and Shaw, supra note 40 at 65. Statute of the International Court of Justice 3 Bevans 1179, 59 Stat. 1031 T.S. 993, 39 A.J.I.L. Supp. 215 (1945).

₆₃ In Oppenheim’s International Law, the following commentary is made regarding judicial decisions in general: “[J]udicial decision has become a most important factor in the development of international law, and the authority and persuasive power ofjudicial decisions may sometimes give them greater significance than they enjoy formally.” Jennings and Watts, supra note 62 at 41. And specifically regarding the role of domestic decisions in the development of international law, the editors of Oppenheim’s observed as follows: “Decisions of municipal courts represent the most frequent form in which judicial consideration is given to international law. Such decisions are not a source of law in the sense that they directly bind the state from whose courts they emanate. But the cumulative effect of uniform decisions of national courts is to afford evidence of international custom (although the weight to be attached to that evidence will vary with the status of the courts and the intrinsic merits of the decisions)” (ibid. at 41–42). See also Brownlie, supra note 17 at 22; and Shaw, supra note 40 at 87–88.

₆₄ Trendtex, supra note 59 at 367 [emphasis added].

₆₅ See Pinochet, supra note 3 at 278.

₆₆ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51 ) at 197, UN Doc. A/39/51 (1984)

₆₇ Jones, supra note 6 at para. 46.

₆₈ Case of the S.S. “Lotus” (1927) P.C.I.J. (Ser. A) No. 10, <http://www.worldcourts.com/pcij/eng/decisions/ 1927.09.07_lotus/>.

₆₉ Ibid. at 28.

₇₀ Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (1986), I.C.J. Rep. 14 and 109.

₇₁ Jones, supra note 6 at para. 14. There are a number of reasons to reassure his Lordship about the correctness of the view that the intendment of the UK State Immunity Act was to prevent the court from exercising jurisdiction already existing in the court, rather than to grant new jurisdiction for purposes of the exceptions made in the act. First, the noun “immunity” has been legally defined as “Exemption, as from serving in an office, or performing duties which the law generally requires other citizens to perform; eg exemption from paying taxes. Freedom or exemption from penalty, burden, or duty. Special privilege.” Black’s Law Dictionary (St. Paul, MN: West Publishing, 1990) at 751. Immunity is thus an exemption from that which would otherwise encumber the person enjoying the immunity. This sense of “immunity” is preserved by section 1 (1) of the UK State Immunity Act, which provides: “A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act” [emphasis added]. Clearly then, the provision is more easily seen as saying that foreign states are exempt from the ordinary “jurisdiction” of UK courts. It is more difficult to read these words as saying that the UK courts did not have the jurisdiction in the first place, as Lord Bingham suggests. Furthermore, the act contemplates certain exceptions to immunity using the formulation “a state is not immune” rather than by the formulation the court “has jurisdiction.” If it is accepted that there never was jurisdiction to begin with, it may well mean that the UK courts may never exercise jurisdiction in cases falling within the exception, since the denial of immunity from a vacuum cannot convert the vacuum into an object. Indeed, the foregoing is amply consistent with the dictum of the International Court of Justice that “rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.” Case Concerning the Arrest Warrant of 11 April 2000, (2002) 14 February 2002, General List No. 121, para. 59. That is to say, both jurisdiction and immunity can co-exist, just as they can both be absent, at the same time.

₇₂ Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 (1992) (US Court of Appeal, 9th Circuit).

₇₃ Ibid. at 719 [emphasis added]. This conclusion follows the ruling of the US Supreme Court in Argentine Republicv. Amerada Hess Shipping Corp., 488 U.S. 428 at 434 (1989), that the Foreign Sovereign Immunities Act afforded “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Foreign Sovereign Immunities Act, title 28, paras. 1602–11 of the United States Code.

₇₄ Shaw, supra note 40 at 491 and 493. See also Victory Transports, Inc v. Comisaria General de Abastecimientos y. Transportes, 336 F.2d 354 at 360 (1964) (US Court of Appeal for the Second Circuit), certification denied to appeal 381 U.S. 934, 14 L Ed. 698, 85 S. Ct 1763 (US SC). Indeed, in Schooner Exchange, supra note 29 at 136, Marshall C.J. had commenced his discussion of the immunity of foreign sovereigns with the observation that the jurisdiction of a nation within its own territory “is susceptible of no limitation not imposed by itself.”

₇₅ See Canadian Encyclopedic Digest (Ontario), 3rd ed., vol. 6 (Scarborough: Carswell, 1973), title 38, para. 4.

₇₆ See Ibid. at note 75; Pyx Granite Co Ltd v. Ministry of Housing and Local Government, [1960] A.C. 260 at 286 (House of Lords) [Pyx Granite]; and In re Vexatious Actions Act 1896, [1915] 1 K.B. 21 at 36 (Court of Appeal, England) [In re Vexatious Action].

₇₇ Per Viscount Simonds in Pyx Granite, supra note 76 at 286.

₇₈ Section 2(e) of the Canadian Bill of Rights, supra note 21, which provides: “Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to … deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations.”

₇₉ See Canadian Encyclopedic Digest, supra note 75 at note 75; and Pyx Granite, supra note 76.

₈₀ However, upon an analysis that may not conveniently be made in the present article, it is submitted that in preventing Canadians from suing foreign states who torture Canadians abroad, the Canadian State Immunity Act is in conflict with the right to a fair hearing in accordance with the principles of justice for the determination of rights, as provided for in the Canadian Bill of Rights. To that extent, the State Immunity Act would be inoperative, given that the Canadian Bill of Rights is a quasi-constitutional document that has that effect upon any ordinary legislation that is expressed as operating notwithstanding the effect of the Canadian Bill of Rights.

₈₁ Such as a writ of summons or statement of claim.

₈₂ Shaw, supra note 29 at 457–58. See also In re Vexatious Actions Act 1896, supra note 76 at 37.

₈₃ As Marshall C.J. put the proposition, “[t]he jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.” Schooner Exchange, supra note 29 at 136.

₈₄ See Lauterpacht, supra note 29 at 229; Sir Ian Sinclair, “The Law of Sovereign Immunity: Recent Developments” (1980-II) 167 Rec. des Cours 113 at 215; and SirJennings, Robert, The Place of the Jurisdictional Immunity of States in International and Municipal Law, vol. 19, no. 108 (Institut der Universität des Saarlandes, 1987). Sinclair and Jennings, cited by Caplan, supra note 29 at 750.Google Scholar

₈₅ Schooner Exchange, supra note 29 at 137 [emphasis added].

₈₆ For instance, in a recent case, the US Court of Appeal for the District of Columbia Circuit, upheld the decision of the lower court to the effect that although the US Foreign Sovereign Immunities Act has now been amended to permit civil suits against foreign states, such amendments in themselves did not give anyone a cause of action against a foreign State. Cicippio-Puleo v. Islamic Republic of Iran and Iranian Ministry of Information and Security, 353 F. 3d 1024 (2004) (US Court of Appeal for DC Circuit).

₈₇ With the possible exception of the decision of the Ontario Court of Appeal in Bouzari, supra note 5.

₈₈ See United Nations, supra note 29 at para. 11 ; Australian Law Reform Commission, supra note 24 at para. 37; and Fox, supra note 54 at 30.

₈₉ Al-Adsani, supra note 4 at para. 54: “The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State.” Jones, supra note 6 at para. 14.

₉₀ Black’s Law Dictionary, 6th ed. (St. Paul, MN: West Publishing, 1990) at 1115.

₉₁ Caplan, supra note 29, citing Badr, G., State Immunity: An Analytical and Prognostic View (The Hague: Martinus Nijhoff, 1984) at 89.CrossRefGoogle Scholar

₉₂ As he put it, “I must confess to some difficulty in accepting this. Based on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give.” Jones, supra note 6 at para. 14.

₉₃ See Schooner Exchange, supra note 29 at 137, note 24. See also Australian Law Reform Commission, supra note 24 at para. 37; and Fox, supra note 54 at 30.

₉₄ Dickinson, E., The Equality of States in International Law (Cambridge: Harvard University Press, 1920) at 3–4.CrossRefGoogle Scholar

₉₅ Ibid. at 3.

₉₆ Ibid. at 4.

₉₇ Ibid.

₉₈ Ibid. at 5.

₉₉ See Caplan, supra note 29 at 751–52.

₁₀₀ See Fox, supra note 54 at 42.

₁₀₁ See Lauterpacht, supra note 29 at 230–36. In particular, Lauterpacht correctly notes as follows: “A closer examination of the origin and of the development of the doctrine of immunity of foreign states from jurisdiction shows that it is perhaps not so much the principles of independence and equality which have nurtured the soil in which that doctrine has flourished, but factors of a different kind. These have been: (a) considerations of the dignity of the sovereign state and (b) the traditional claim, transposed into the international arena, of the sovereign state to be above the law and to claim, before its own courts, a privileged position compared with that enjoyed by the subject” (at 230).

₁₀₂ Pollock and Maitland cite Bracton to this effect: “Who, asks Bracton, ought to be judge in temporal causes? The king; no one else: — this is the meaning of the kingship, that the king should do justice to all. It is mere want of time and strength that authorizes and compels him to depute his duties to others. All temporaljudges are his delegates.” SirPollock, Frederick and Maitland, Frederic, The History of English Law, vol. 1 (Cambridge: Cambridge University Press, 1895) at 513.Google Scholar

₁₀₃ In the United States, for instance, the rule of local sovereign immunity began in the modest obiter dictum of Jay C.J. in 1793 when he stated in Chisholm v. Georgia that a suit may not lie against the United States because “there is no power which the courts can call to their aid.” Chisholm v. Georgia, 2 Dall (2 US) 419 at 478 (1793) (US S.C.). But by 1907, the rationale for the rule had taken the more robust tone stated by Justice Holmes in Kawananakoa v. Polybank, where he stated that “there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polybank, 205 U.S. 349 at 353 (1907) (US S.C.). See also The Western Maid, 257 US 419 (1921) (US S.C.). In the United Kingdom, some of the classic statements of local sovereign immunity include the dictum of Cockburn C.J. in Featther v. R, (1865) 6 B. & S. 257 at 259, that “a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done to a subject by the authority of the Sovereign. For from the maxim that the King can do no wrong it follows, as a necessary consequence, that the King cannot authorize a wrong … As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise.”

₁₀₄ Rahimtoola v. Nizam of Hyderabad, [1958] A.C. 379 at 418.

₁₀₅ According to him, “[t]he jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not.” As Hazel Fox, supra note 54 at 525, has said, “[s]tate immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite.” To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule that, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged.

₁₀₆ See also paragraph 24 for Lord Bingham’s similar reliance on the same passage from Fox, supra note 54.

₁₀₇ Fox, supra note 54 at 524–25.

₁₀₈ Maxwell v. Murphy, [1957] 96 C.L.R. 261 at p 267.

₁₀₉ Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 1994 Can. LII 44 (S.C.C.).

₁₁₀ Ibid. at 57–58.

₁₁₁ See note 105 in this article.

₁₁₂ International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171.

₁₁₃ See Brownlie, supra note 17 at 497–98. See also Garnett, supra note 36.

₁₁₄ Bouzari, supra note 5 at paras. 91–93.

₁₁₅ Pinochet, supra note 3.

₁₁₆ Ibid. at 254 and 264.

₁₁₇ Ibid. at 278.

₁₁₈ Ibid. at 280.

₁₁₉ Ibid. at 254.

₁₂₀ Ibid. [emphasis added].

₁₂₁ Bouzari, supra note 5 at paras. 91–93.

₁₂₂ Having noted that “jurisdiction in civil matters is enforced in the last resort by the application of the sanctions of criminal law,” he continued as follows: “In general it is fair to say that the exercise of civil jurisdiction has been claimed by states upon far wider grounds than has been the case in criminal matters, and the resultant reaction by other states much more muted. This is partly due to the fact that public opinion is far more easily roused where a person is tried abroad for criminal offences than if a person is involved in a civil case” Shaw, supra note 29 at 457 [emphasis added].

₁₂₃ Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), 762 (US S.C.).

₁₂₄ Al-Adsani, supra note 4 at para. O-III4.

₁₂₅ Sosa v. Alvarez-Machain, 542 US 692 at 762-63 (2004) (per Breyer J., US S.C.).

₁₂₆ Verlinden bv v. Central Bank of Nigeria, 461 U.S. 480 at 486 (1983).

₁₂₇ Malanczuk, supra note 17 at 73.

₁₂₈ As he put it, “[t]orture cannot be justified by any rule of domestic or international law. But the question is whether such a norm conflicts with a rule which accords state immunity.” The syllogistic reasoning of the minority in Al-Adsani, supra note 4 at 298–99, simply assumes that it does: “The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a state allegedly violating it cannot invoke hierarchically lower rules (in this case, those on state immunity) to avoid the consequences of the illegality of its actions.” Jones, supra note 6 at para. 43.

₁₂₉ Barcelona Traction, Light and Power Co., (1970) I.C.J. Rep. 32.

₁₃₀ Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (US S.C.). Canadian passports, for example, contain this request in the following formulation: “The Secretary of State for External Affairs of Canada requests, in the name of Her Majesty the Queen, all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”

₁₃₁ In US v. Laub, 385 U.S. 475 (1967) (US S.C.) at 481, Fortas J. observed as follows: “A passport is a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular offices.

₁₃₂ Pinochet, supra note 3 at 278. As he put it, “we have come a long way from what I earlier described as the classical theory of international law — a long way in a relatively short time. But as the Privy Council pointed out in In re Piracy Jure Gentium … international law has not become a crystallised code at any time, but a living and expanding branch of the law.” Glueck observed: “[U]nless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has its right to institute customs.” Gluek, 59 Harv. L. Rev. 396 at 398. In a footnote to this passage he added: “Much of the law of nations has its roots in custom. Custom must have a beginning; and customary usages of states in the matter of national and personal liability for resort to prohibited methods of warfare and to wholesale criminalism have not been petrified for all time.”

₁₃₃ Other exceptions were also recognized.

₁₃₄ See dissenting opinion of Wald J. in Princz v. Federal Republic of Germany, 26 F. 3d 1166 at 1176-85 (1994) (US C.A. for DC Circuit), certification denied, 513 U.S. 1121 (1995) (US S.C.).

₁₃₅ See the opinion of Lord Wilberforce in I Congreso, and the judgment of the Court of Appeal of New Zealand in Sir Ronald Davidson, supra note 37.