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60 Va. J. Int'l L. 433 (2019-2020)
State Immunity as a Tool of Foreign Policy: The Unanswered Question of Certain Iranian Assets

handle is hein.journals/vajint60 and id is 445 raw text is: ARTICLE State Immunity as a Tool of Foreign Policy: The Unanswered Question of Certain Iranian Assets DANIEL FRANCHINI* The Foreign Sovereign Immunities Act contains a number of exceptions to state immunity that are unique to the U.S. /egal sstem. 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 internationa! /an. In its decision on the preliminay objections, the Court dismissed this aspect of Iran's claims onjurisdictiona/grounds. Yet, the question of the legalit o the U.S. approach to state immunit lingers on. This article tackles this issue in two parts. The first part shows that excetions to state immunit for state-sponsored terrorism, unlawfu/ expropriations, and certain territorial torts are in breach of well-established principles of state immunity under international Iaw. At the same time, these exceptions are conceived as responses to prior wvrong/u acts of the states whose immunit is denied. The second part argues that non-recognition of state immunity can, on certain conditions, qua/fy as a lawful countermeasurepursuant to the internationa/ega/ ru/es goveiig the implementation of state responsibility. In order to reach this conclusion, the articleproposes a distinction between executive, 'mixed, and j/udicia/ measures. It addresses potentia! objections to countermeasures affecting state immunity and shows that various measures may compy with the relevant requirements. Construing non-recognition o state immunity as a countermeasure provides the most suitab/e /ega/ ramework to a//ow the pursuit of certain oreign po/iy goa/s whi/e preservg we!!-established princip/es o international /aw. * Lecturer m International Law, University of Sheffield; DPhil Candidate, University of Oxford (United Kingdom). An earlier version of this article was presented at the 2017 workshop of the ASIL Interest Group on International Law m Domestic Courts. The author wishes to thank William S. Dodge, Curtis Bradley, Paul Stephan, Julian Davis Mortenson, Maximo Langer, Deborah Pearlstem, Monika HakimiJean Galbraith, Kristina Daugirdas, Russell Buchan, and Nicholas Tsagourias for their helpful comments. The article is partly based on the doctoral research carried out at the University of Oxford under the supervision of Antonios Tzanakopoulos, to whom special thanks are due. All mistakes remain the author's own.