State immunity and the violation of human rights brill. State immunity and the violation of human rights book. Abstract this article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful illtreatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates. State immunity upheld against human rights challenges in. The restrictive doctrine of immunity 17 a general overview 17 b early developments of a torts exception to immunity 19 4. State immunity or how does a victim of a human rights violation claim compensation ii ii. States cannot be sued for serious human rights violations before the municipal courts of another state. For most of american history, sovereign immunity almost universally protected federal and state governments and their employees from being sued without their consent.
State immunity act, which grants to heads of states the same privileges and immunities as. State practice and the 1961 vienna convention clearly indicate that some immunity provisions are absolute, providing evidence that the rules are, in fact, regarded as jus cogens. State immunity and the violation of human rights jurgen. Country reports on human rights practices for 2018 united states department of state bureau of democracy, human rights and labor the government did not comprehensively investigate allegations of human rights abuses, including most incidents of violence by security forces, contributing to an environment of impunity. The scope of this thesis is to analyze the emergence of a new exception to the rule of state immunity in the case of human rights violations. Greece intervening definitively draws the line under the question whether states enjoy jur isdictional immunity in. If states are bound by human rights and if the rule of law has any meaning in international law, why are states exempted. Apart from the conflict between state immunity and human rights protection, the judgment raises further theoretical questions concerning the relationship between international law and national constitutional law, the role of domestic courts in the formation and change of international customary law, as well as the separation of powers in a. However, at the inception of another broad movement to restrict state immunity, now predicated on human rights protection, it is useful to revisit the topic and to attempt to determine which rationale should control. Basing its decision on article 11 of the european convention, the greek court in no way asserted the existence of a sort of universal civil jurisdiction with regard to viola tions of peremptory norms of international law. As to the argument that state immunity did not apply where there had been an alleged violation of fundamental norms of international law, the court acknowledged that there my have been a trend in international and domestic law towards limiting state immunity in respect of human rights abuses, but this practice was by no means universal. Can serious human rights violations justify a breach of state. State immunity and human rights, journal of international.
Incompatibility of the state immunity act with the human rights act and the right to a remedy under international and european law after benkharbouche june 12, 2016. The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a. Jun 07, 2017 when human rights are framed as more inviolable than state sovereignty, the human rights regime can claim humanitarian grounds to impinge on state sovereignty and put the states treatment of. State immunity or how does a victim of a human rights violation claim compensation iv kalogeropoulou and others v. Sep 18, 2007 the most obvious example excludes foreign state conduct that does significant harm to the vital interests of the forum state, such as the commission of human rights abuses against the forum states nationals. State immunity and human rights journal of international criminal. Federal republic of germany, a minority on the hellenic supreme court criticized the theory. Human rights violations in the united states a report on u. Unfortunately, the international law commissions work on codifying the law of foreign state. Heads and walls, hearts and minds, 44 vanderbilt journal of transnational law 2011 9991045, arguing that the primary focus of human rights advocates should be to secure remedies in the state allegedly responsible for the violations concerned.
On the basis of an exhaustive analysis of judicial decisions, international treaties, national legislation, government statements, deliberations in international organisations as well as scholarly opinion, xiaodong yang traces the historical. State immunity from jurisdiction and the violation of. Under the normative hierarchy theory, a states jurisdictional immunity is abrogated when the state violates human rights protections that are considered peremptory international law norms, known as jus cogens. State immunity or how does a victim of a human rights.
Nygh, peter state immunity and the violation of human rights. Challenges to accountability for human rights violations in sri lanka 1 introduction sri lanka has an obligation to provide justice, including effective redress, and ensure accountability to victims of human rights abuses. Crawford noted back in 1984 that in orthodox terms, it state immunity is an immunity ratione personae, not ratione materiae though the shift to restrictive immunity is tending to obscure the distinction. State immunity is not an absolute state right under the international legal order. A critique of the normative hierarchy theory by lee m. It is shown that the granting of immunity may contradict the procedural guarantees of the european convention of human rights. A number of ngos, human rights workers, and trade unionists reported threats, violence, and intimidation. State immunity and human rights european journal of. Jurgen, brohmer, state immunity and the violation of human rights 191 1997. In the recent times there has been an unfortunate tendency on the part of diplomats to disregard the law of the receiving state and invoke immunity to escape liability leading to the abuse of these privileges. Human rights is a legitimate subject for international law, and international scrutinyiii law enforcement officials are obliged to know, and to apply, international standards for human rightsiv ethical and legal conduct human rights derive from the inherent dignity of the human personv. Human rights are the bedrock principles which underpin all societies where there is rule of law and democracy. History and development of sovereign immunity 14 1.
Bibliography and abbreviations books born, gary, international arbitration, cases and materials, new york 2011 born. At the same time the law of state immunity, albeit less prominent, has also been subjected to a process of dynamic change. International law in the posthuman rights era texas law. As international law currently stands, there are insuperable obstacles to an ideally unhampered exercise of jurisdiction and denial of immunity over human rights. Human rights violations in certain countries in 2012. The concept of human rights and their extralegal justification, in. State immunity or state impunity in cases of violations of human. The ngo also reported 361 attacks against human rights defenders in the same period, compared with 392 attacks in all of 2018. Head of state immunity in the case of grave violations of. The italian supreme court decision on the ferrini case 97. Can serious human rights violations justify a breach of state immunity the current legal provisions of international law on why serious human rights violations cannot be brought to domestic courts. Human rights, historically being the area of relations between the society and the government, an element of a purely internal policies, have started to play a role of a tool for foreign politics in the modern world.
The aim of this thesis is to examine the question of whether there is an emerging exception in international law to the principle of foreign state immunity in respect of violations of jus cogens norms. Since the end of world war ii, the core importance of human rights has been universally acknowledged. The italian supreme court decision on the ferrini case 91 instance the princz case. Bouzari appealed, and the ontario court of appeal confirmed the decision of the trial court. Today, against a backdrop of multiple conflicts, humanitarian emergencies and severe violations of international. While the ecthr is the only international human rights tribunal to have been seized of the question of the relationship between human rights and state immunity to date, 58 a similar result may emerge from other international human rights bodies with provisions on access to a court or an effective procedural remedy, 59 if presented with such cases. After world war ii, but especially since the 1980s, human rights expanded to almost every corner of international law. Dellapenna and others published the law of state immunity find, read and cite all the research you need on researchgate. Although domestic courts, the european court of human rights and the international court of justice have quite consistently upheld state immunity, their case law has come a long way in terms of clarifying the problematic liaison between state immunity and human rights law. The judgment of the italian constitutional court on state immunity in cases of serious violations of human rights or humanitarian law. For these reasons, the granting of immunities to the state may lead to impunity from jurisdiction in cases in which certain human rights recognised as peremptory.
Is there immunity from civil liability for torture neth int law rev 50, 1. The judgment of the italian constitutional court on state. Given the current international law of state immunity, it seems that the only possible way to. Orakhelashvili, state immunity and hierarchy of norms. The field of international human rights has been one of the most prominent and dynamic areas of public international law in recent decades. International human rights standards for law enforcement. Nonrecognition of state immunity as a judicial countermeasure 811 violated the convention against torture.
Though there are number of states still following the doctrine of absolute state immunity, it is recognised, inter alia, in international treaties. The immunity or exemption enjoyed by states from legal proceedings before foreign national courts is a crucial area of international law. Pdf an emerging exception to foreign state immunity. Challenges to accountability for human rights violations. On the other hand, law on state immunity is a wellestablished part of public international law.
State immunity and human rights state immunity and human rights mcgregor, lorna 20320 00. State immunity and human rights journal of international. University of leicester school of law research paper no. State immunity and the violation of human rights book, 1997.
The criminal justice system as it stands today has not served victims seeking to assert this right. State sovereignty and human rights irreconcilable tensions. The basics state immunity grew from the need to protect officials or representatives of foreign states, and for a long time was concerned mainly with the jurisdiction of states over the warships and trading ships belonging to other states. It was not until the mid1970s, with prosecutions of human rights violations in greece and portu. State immunity and human rights violations chapter 10 state. Udefegua reported 12 killings of human rights defenders from january through july. In the ferrini case the italian supreme court affirmed that germany was not entitled to sovereign immunity for serious violations of human rights carried out by. By establishing head of state immunity as a norm of international customary law part 1. Starting in the mid1900s, however, a trend toward government accountability began to erode sovereign immunity. But under the state accountability model, state of. The relationship between states on human rights issues abandon the principle. It was also the first to address in detail the ratio of the seminal judgment in pinochet no. Considering the current practices of states, i see state immunity as a barrier to the enforcement of rights of those who have been subject to torture.
Greece and germany, european courts of human rights, admissability decision of december 12, 2002, appl. State immunity and the violation of human rights by jurgenrohmer europa institute, uaiversity of saarland, saarbriicken, germany martinus nijhoff publishers. The impact of human rights law on the traditional concept of diplomatic protection is described. Can serious human rights violations justify a breach of. The current state of international immunity law as evidenced by state practice and the work of several international learned bodies is surveyed extensively. Fox, access to justice and state immunity, 117 lqr 2001 p. The house of lords ruling in jones v ministry of interior almamlaka alarabiya as saudiya the kingdom of saudi arabia and others sets an important precedent in the field of international civil claims for torture. Foreign state immunity and the right to court access, 93 b. Immunity versus human rightsbianchi institute for international law. But the rise of international human rights has called the fairly settled doctrine of relative sovereign immunity also known as the relative theory of sovereign immunity into question. If diplomatic immunity rules constitute jus cogens and human rights rules do not, then diplomatic immunity should prevail. Jan 18, 2014 as to the argument that state immunity did not apply where there had been an alleged violation of fundamental norms of international law, the court acknowledged that there my have been a trend in international and domestic law towards limiting state immunity in respect of human rights abuses, but this practice was by no means universal.
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