عضو هیأت علمی دانشگاه آزاد اسلامی واحد تهران مرکزی
عنوان مقاله [English]
Foreign State immunity from jurisdiction of internal courts of another states as a customary rule of international law has been appeared in states’ practice and also in legislations passed by their parliaments (states like U.S.A, U.K, Australia, Canada, South Africa, Pakistan, etc.,). State immunity as a rule of international law has developed from its beginning (i.e. the Schooner Exchange Case) by many experiences. Here we can refer to the Absolute and Restrictive state immunity theories as its classical examples. But in this paper we just focus on its recent experience, i.e. the anti-terrorism act of U.S.A and Iran’s jurisdictional counter act.
Despite the validity of the state immunity as a customary rule of international law in itself, there is not such a consensus among states’ practice and opinion regarding its limitation and the state immunity rule is on change constantly. However, for the time being, this rule is experiencing the Anti-terrorism act of U.S.A and the Jurisdictional Act of I.R. of Iran’s. These acts, which gave jurisdiction to the national courts of their states, open a new window to the state immunity at present. After considering these acts, and specially Iran’s jurisdictional act, we have to categorize them as a new exception to state immunity rule, or we have to classify them as a new opponent rule of customary international law.
The rise of other exceptions to the rule shows us that what is important in appearance of the exceptions is a positive state practice from one hand and silence of other states in another hand. Recent situation, however, does have resemblances to rising process of other exceptions. At first Iran and U.S.A. legislations as state practice, then silence of other states to the appearance process as second, and finally international atmosphere in the case of terrorism in general. But any final conclusion on the case needs passage of time to deal the jurisdiction based on anti-terrorism attitudes properly.