State immunity or State impunity in cases of violations of human rights recognised as jus cogens norms

2019 ◽  
Vol 23 (9) ◽  
pp. 1521-1545
Author(s):  
Selman Özdan
Keyword(s):  
Human Rights ◽  
State Immunity ◽  
Jus Cogens

State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory

2003 ◽  
Vol 97 (4) ◽  
pp. 741-781 ◽  
Author(s):  
Lee M. Caplan
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
General Circulation ◽  
Gulf War ◽  
Hierarchy Theory ◽  
State Prison ◽  
State Immunity ◽  
The United Kingdom ◽  
Jus Cogens ◽  
Small Room

When Sulaiman Al-Adsani traveled from the United Kingdom to Kuwait to repel Saddam Hussein’s invasion in 1991, he never dreamed he would depart with bruises and burns inflicted by the very government he had sought to defend. According to Al-Adsani, his troubles began when he was accused of releasing sexual videotapes of Sheikh Jaber Al-Sabah Al-Saud Al-Sabah, a relative of the emir of Kuwait, into general circulation. After the first Gulf war, with the aid of government troops, the sheikh exacted his revenge by breaking into Al-Adsani’s house, beating him, and transporting him to a Kuwaiti state prison, where his beatings continued for days. Al-Adsani was subsequently taken at gunpoint in a government car to the palace of the emir’s brother, where his ordeal intensified. According to Al-Adsani, his head was repeatedly submerged in a swimming pool filled with corpses and his body was badly burned when he was forced into a small room where the sheikh set fire to gasoline-soaked mattresses.

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, 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.

Competing or Conflicting Norms, and Related but Different Doctrine

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
Human Rights ◽  
Contentious Issue ◽  
State Immunity ◽  
Jus Cogens

This chapter addresses competing or conflicting norms, as well as the related but different doctrine of Act of State. It examines the various approaches courts employ in dealing with the very contentious issue of whether human rights and jus cogens norms trump the rule of State immunity. The chapter discusses the nature of the Act of State doctrine, including its jurisprudence, applicability and rationale, and exceptions or limitations. The Act of State doctrine, which is sometimes confused with State immunity, is a matter of justiciability, not jurisdiction. The chapter concludes by discussing an analogy between the rule of State immunity and the Act of State doctrine.

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.

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.

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