State Immunity, State Atrocities, and Civil Justice in the Modern Era of International Law

2008 ◽  
Vol 45 ◽  
pp. 223-270
Author(s):  
Chile Eboe-Osuji
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Court ◽  
Commercial Activities ◽  
State Immunity ◽  
European Court ◽  
House Of Lords ◽  
Peremptory Norm ◽  
The Face ◽  
Jus Cogens

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.

Slaughterhouse-Six: Updating the Law of War

2004 ◽  
Vol 5 (5) ◽  
pp. 525-544 ◽  
Author(s):  
Ed Morgan
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
European Court ◽  
House Of Lords ◽  
Self Interest ◽  
Time Zones ◽  
National Jurisdiction ◽  
State Obligations ◽  
The Impact

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in thePinochetcase that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

scholarly journals HAK ASASI MANUSIA SEBAGAI JUS COGENS DAN KAITANNYA DENGAN HAK ATAS PENDIDIKAN

Yuridika ◽  
2017 ◽  
Vol 32 (2) ◽  
pp. 352
Author(s):  
Virgayani Fattah
Keyword(s):  
Human Rights ◽  
International Law ◽  
Right To Education ◽  
Social Community ◽  
National Education ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms

Jus cogens as a norm of general international law accepted and recognized by the community as a whole interasional with the main characteristics are non-derogable nature. The right to education is a fundamental human rights, so that its presence can not be reduced under any circumstances based on the benefits and importance of education for children. The national education policy is not fully aligned with the international human rights instruments led to the development of the education sector is not entirely based on human rights. Government is obliged to fulfill the right to education, especially with regard to the budget for building and repairing school buildings and improve the quality of education in Indonesia. The importance of the right to education as the main vehicle for elevating and empowering children from poverty, as a means to actively participate in the construction and total social community and as a powerful path towards human civilization itself. So it can be understood that a peremptory norm, also called jus cogens is a basic principle of international law that is considered to have been accepted in the international community of the country as a whole. Unlike general treaty law that traditionally requires treaties and allows for changes in obligations between countries through treaties, peremptory norms can not be violated by any country.

Jus CogensafterGermanyv.Italy: Substantive and Procedural Rules Distinguished

2012 ◽  
Vol 25 (4) ◽  
pp. 979-1002 ◽  
Author(s):  
STEFAN TALMON
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Limited Effect ◽  
State Immunity ◽  
The Icj ◽  
Jus Cogens ◽  
The Relationship

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.

Jus Cogensvs. State Immunity, Round Two: The Decision of the European Court of Human Rights in theKalogeropoulou et al. v. Greece and GermanyDecision

2003 ◽  
Vol 4 (5) ◽  
pp. 477-491 ◽  
Author(s):  
Kerstin Bartsch ◽  
Björn Elberling
Keyword(s):  
Human Rights ◽  
War Crimes ◽  
Second World War ◽  
World War ◽  
Sovereign Immunity ◽  
State Immunity ◽  
European Court ◽  
Jus Cogens ◽  
Second World ◽  
Judicial Treatment

On 12 December 2002, the European Court of Human Rights (ECHR) declared inadmissible an application filed against Greece and Germany by 257 victims and relatives of victims of Nazi war crimes committed in Greece in 1944. This decision was not only the latest of a number of ECHR decisions concerning the judicial treatment of Nazi war crimes committed during the Second World War, but it also marked the second time that the Court had to deal with the question of whether states may rely on sovereign immunity in cases concerning breaches of peremptory and non-derogablejus cogensnorms.

State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights

2002 ◽  
Vol 15 (3) ◽  
pp. 703-714 ◽  
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
International Law ◽  
Human Rights Violations ◽  
State Immunity ◽  
The United Kingdom ◽  
European Court ◽  
The Difference ◽  
Peremptory Norms

The issue of state immunity in the case of human rights violations has been controversial in the last decade, partly due to the absence of international judicial pronouncements. The bringing of the three cases previously litigated in the United Kingdom and Ireland before the European Court of Human Rights was supposed to reduce this uncertainty. However, decisions of the Court seem to have failed to meet these expectations. The Court has failed to properly examine whether the sources of international law support the scope of state immunity as portrayed in the decisions. Furthermore, the decision on Al-Adsani is deficient in that it fails to respect the difference between sovereign and non-sovereign acts, and the effects of peremptory norms with regard to state immunity.

THE TORTURE EXCEPTION TO IMMUNITY FROM CIVIL SUIT

2015 ◽  
Vol 74 (1) ◽  
pp. 16-19
Author(s):  
Surabhi Ranganathan
Keyword(s):  
Human Rights ◽  
Saudi Arabia ◽  
International Law ◽  
General Rule ◽  
European Convention ◽  
Public International Law ◽  
State Immunity ◽  
Civil Proceedings ◽  
Civil Suit ◽  
Jus Cogens

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.

scholarly journals A CRITIQUE OF THE DEMISE OF HEADS OF STATE IMMUNITY IN THE AGE OF HUMAN RIGHTS

2018 ◽  
pp. 108-127
Author(s):  
SELMAN OZDAN
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Critical Role ◽  
State Immunity ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This paper presents an unspoken aspect of Head of State immunity, namely that such immunity is at odds with the expectation that international law should be applied to challenge resistance to and promote respect for human rights. It considers the question of whether Head of State immunity gives rise to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens) committed by such Heads of State. While this paper emphasises the critical role of Head of State immunity in the context of international relations, it argues that Heads of State should not exempt from punishment when violations of those human rights are at stake.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

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.

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