THE TORTURE EXCEPTION TO IMMUNITY FROM CIVIL SUIT

2015 ◽  
Vol 74 (1) ◽  
pp. 16-19
Author(s):  
Surabhi Ranganathan

THE European Court of Human Rights' (ECtHR) judgment in Jones and others v U.K. (2014) 59 E.H.R.R. 1 is the latest word on a long-running debate about whether public international law excludes foreign State immunities before domestic courts in civil proceedings relating to the violation of jus cogens norms, particularly the prohibition against torture. The case joined applications by Mr. Jones and Messrs. Mitchell, Sampson and Walker, all British (or dual) nationals, alleging that the UK's grant of immunity to Saudi Arabia (in Mr. Jones's case) and to Saudi Arabian public officials (in both cases) amounted to a disproportionate interference with their right of access to court under Article 6 of the European Convention on Human Rights (ECHR). The ECtHR decided, by six votes to one, that the House of Lords' judgment in Jones vMinistry of Interior Al-Mamlaka Al-Arabyia AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26; [2007] 1 A.C. 270) (“Jones [HL]”) was correct in finding that public international law did not recognise a “torture” exception to the general rule of State immunity in civil proceedings and, consequently, did not infringe Article 6 of the ECHR.

2011 ◽  
Vol 60 (1) ◽  
pp. 271-279 ◽  
Author(s):  
Eirik Bjorge

The technique of ‘evolutive interpretation’ is well known in public international law.2It is particularly associated with treaty regimes like that of the European Convention on Human Rights (ECHR).3The currency of this technique of interpretation has, however, been less evident ingeneralpublic international law. It is not insignificant therefore that the International Court of Justice (ICJ), in a case about navigational and related rights has now made unambiguously clear that, where the parties have used generic terms in a treaty, aware that the meaning of the terms was likely to evolve over time, and where the treaty is one of continuing duration, the parties as a general rule must be presumed to have intended those terms to have an ‘evolving meaning’.4


2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.


Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey

This chapter analyses the interpretation of the European Convention on Human Rights (ECHR). It explains that there are key themes which have dominated the interpretation of the Convention: the purposive and the evolutive interpretations. The chapter describes the approach of the Strasbourg Court to the interpretation of the ECHR and evaluates the influence of the Vienna Convention. It suggests that the interpretation of the Convention builds on the rules of public international law on the interpretation of treaties and has remained broadly consistent with those principles, and that the role of the Strasbourg Court is casuistic.


2021 ◽  
Author(s):  
Jörn Griebel

Property protection is provided by national law as well as international law. The study seeks for an explanation regarding the divergent approaches to the protection of shareholders in cases of reflective loss provided for in German constitutional law and various fields of public international law. This is done by way of a comparison of the German approach with those found in the law of aliens, in the European Convention on Human Rights and under international investment law. This results in the finding that approaches of international law partly fail to establish the necessary bonds to recognized concepts of national law.


1992 ◽  
Vol 2 (1) ◽  
pp. 45-81
Author(s):  
Alberto Soria Jiménez

SUMMARY Judgment 107/1992 of the Spanish Constitutional Court has not only cleared up any possible doubts about the alleged unconstitutionality of State immunities and it has discarded any possible contradictions that these immunities might have with art. 24.1 of the Spanish Constitution.. Judgment 107/1992 has also directly linked the right to due process of law with the correct jurisdictional application of the international rules to which art. 21.2 of the LOPJ remits. The Constitutional Court feels that extending immunity from enforcement to foreign State property beyond the provisions of Public International Law violates the right to due process because it limits the right to enforcement of judgments without any legal support. On the other hand, the Constitutional Court points out that when the rules of Public International Law impose absolute immunity from enforcement, the aforementioned right is not violated. That in these cases, this right might be guaranteed by diplomatic protection or, as a last resort, by an assumption by the forum State of its duty to satisfy judicially mandated obligations when the absence of enforcement of these might imply undue sacrifice for an individual contrary to the principle of equality before public burdens. Therefore it seems wise for the Spanish State to establish some procedure which would prevent the recognition of immunity would also be highly recommendable for Spain to enact a statute containing a list of exceptions to State immunity as soon as possible. It is the executive branch, therefore, that should resolve this situation by proposing a bill on this issue and perhaps, as a complementary measure, by ratifying the European Convention on State Immunity.


2016 ◽  
Vol 29 (2) ◽  
pp. 343-364 ◽  
Author(s):  
VASSILIS P. TZEVELEKOS ◽  
LUCAS LIXINSKI

AbstractThe article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyondjus cogensand the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.


2019 ◽  
Vol 180 ◽  
pp. 575-677

State immunity — Jurisdictional immunity — Embassy employment disputes — Domestic staff — Claims for infringement of employment rights — Whether claims barred by State immunity — State Immunity Act 1978 (“SIA”), Section 1 — Exceptions to immunity — Limitations to exceptions — Section 16(1)(a) of SIA — Section 4(2)(b) of SIA — Scope of immunity — Absolute immunity — Restrictive immunity — Whether starting point absolute or restrictive immunity — Distinction between jure gestionis and jure imperii — Customary international law — Whether rule of customary international law justifying Sections 4(2)(b) and 16(1)(a) of SIA — Whether United Kingdom having jurisdiction over respondent States — Whether Article 6 of European Convention on Human Rights, 1950 and Article 47 of Charter of Fundamental Rights of the European Union engagedDiplomatic relations — Immunity from jurisdiction — Embassy employment disputes — Domestic staff employed locally — Whether members of mission — Vienna Convention on Diplomatic Relations, 1961, Article 1 — Whether Section 16(1)(a) of SIA applicable to claimants — Whether employment of domestic staff of diplomatic mission an act jure gestionis — Whether State entitled to State immunity in proceedings against employer embassiesRelationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 6 and 14 — Charter of Fundamental Rights of the European Union, Article 47 — Incorporation into English law — Sections 4(2)(b) and 16(1)(a) of SIA — Whether compatible — Whether Article 6 of European Convention engaged by claim to State immunity — Jurisprudence of European Court of Human Rights — Customary international law — Scope of State immunity — Whether starting point absolute or restrictive immunity — International Law Commission’s Draft Article 11 — United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, Article 11 — Relevance — Whether Sections 4(2)(b) and 16(1)(a) of SIA having any basis in customary international law — Whether employer States entitled to immunity as regards claimants’ claims — Whether Sections 4(2)(b) and 16(1)(a) of SIA compatible with Article 6 of European Convention and Article 47 of EU CharterHuman rights — Right of access to court — State immunity — European Convention on Human Rights, 1950 — State Immunity 576Act 1978 — Claimants bringing proceedings against foreign States in relation to employment at embassy — Whether defendant States immune — Whether provisions of SIA barring claimants’ access to court — Whether recognition of immunity involving violation of right of access to courts — Whether infringement of Article 6 of European Convention and Article 47 of EU CharterHuman rights — Prohibition of discrimination — State immunity — European Convention on Human Rights, 1950 — Whether Section 4(2)(b) of State Immunity Act 1978 discriminating on grounds of nationality — Whether infringing Article 14 taken together with Article 6 of European Convention — The law of England


2012 ◽  
Vol 25 (4) ◽  
pp. 979-1002 ◽  
Author(s):  
STEFAN TALMON

AbstractIn the case concerningJurisdictional Immunities of the State, the ICJ held that rules ofjus cogensdid not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of ajus cogenscharacter generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules ofjus cogensand procedural rules of immunity are involved.


Author(s):  
Chile Eboe-Osuji

SummaryThe exercise of civil jurisdiction by a national court over a foreign sovereign has been a perennial source of controversy in international relations. It resulted in the development of the doctrine of state immunity, founded on the notion of the comity of nations. The doctrine at some point was considered an absolute rule. With time, exceptions to the rule were accepted, notably in the area of commercial activities. In recent times, there has been a movement to recognize a further exception involving violation of jus cogens norms in order to limit the tendency of certain state agents to engage in gross violations of human rights and humanitarian norms. Yet this movement has encountered strong resistance. The resistance is apparent in three decisions rendered respectively by the European Court of Human Rights, the Ontario Court of Appeal, and the British House of Lords. In this article, it is contended first that the resistance noted in these cases is largely founded on fundamental misconceptions. It is further contended that the comity of nations is no longer sustainable as a rational basis for the doctrine of state immunity, especially in the face of jus cogens as a peremptory norm of international law.


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