Part III The Current International Law of State Immunity, 15 Immunity from Adjudication: The Territorial Tort Exception

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Human Right ◽  
State Immunity ◽  
The Icj ◽  
Environmental Loss

This chapter critically examines the territorial tort exception in UNCSI, Article 12. With some understanding of its reach and any areas of inconsistency, it next evaluates the effect of the Jurisdictional Immunities judgment on this tort exception to State immunity. This evaluation of the ICJ judgment refers to the aspects mentioned above as they apply to a tort exception and apply it briefly to three well-known controversial areas of non-contractual delictual loss — loss arising from armed conflict, environmental loss, and loss resulting from violation of a procedural fundamental human right (violation of substantive human rights being barred by the ICJ ruling). The chapter then states whether the territorial tort exception continues today to represent a restriction on the bar of State immunity.

scholarly journals The International Law and Politics of Water Access: Experiences of Displacement, Statelessness, and Armed Conflict

Water ◽  
2020 ◽  
Vol 12 (2) ◽  
pp. 340
Author(s):  
Carly A. Krakow
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
International Law ◽  
Armed Conflict ◽  
Vulnerable Groups ◽  
Displaced Persons ◽  
Water Access ◽  
Human Right ◽  
Sovereign State ◽  
Conflict Zones

This article analyses international law regarding the human right to water as it impacts people who are stateless, displaced, and/or residents of armed conflict zones in the contemporary Middle East. Deficiencies in international law, including humanitarian, water, human rights, and criminal law, are examined to demonstrate international law’s strengths and weaknesses for functioning as a guarantor of essential rights for vulnerable groups already facing challenges resulting from ambiguous legal statuses. What are the political factors causing lack of water access, and what international legal protections exist to protect vulnerable groups when affected by water denial? The analysis is framed by Hannah Arendt’s assertion that loss of citizenship in a sovereign state leaves people lacking “the right to have rights”, as human rights are inextricably connected to civil rights. This article demonstrates that stateless/displaced persons and armed conflict zone residents are disproportionately impacted by lack of water, yet uniquely vulnerable under international law. This paper offers unprecedented analysis of international criminal law’s role in grappling with water access restrictions. I challenge existing “water wars” arguments, instead proposing remedies for international law’s struggle to guarantee the human right to water for refugees/internally displaced persons (IDPs). Examples include Israel/Palestine, Syria, Iraq, and Yemen. A key original contribution is the application of Arendt’s theory of the totalising impacts of human rights violations to cases of water access denial, arguing that these scenarios are examples of environmental injustice that restrict vulnerable persons’ abilities to access their human rights.

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.

scholarly journals Children in Armed Conflict: A Human Rights Crisis in Somalia

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Salvador Santino Jr. Fulo Regilme ◽  
Elisabetta Spoldi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Children's Rights ◽  
Children’S Rights ◽  
Armed Groups ◽  
Public International Law ◽  
Rebel Groups ◽  
False Sense ◽  
Alternative Sources

Abstract Despite the consolidated body of public international law on children’s rights and armed conflict, why do armed rebel groups and state forces deploy children in armed conflict, particularly in Somalia? First, due to the lack of alternative sources of income and livelihood beyond armed conflict, children join the army due to coercive recruitment by commanders of armed groups. Their participation in armed conflict generates a fleeting and false sense of material security and belongingness in a group. Second, many Somali children were born in an environment of existential violence and material insecurity that normalized and routinized violence, thereby motivating them to view enlistment in armed conflict as morally permissible and necessary for existential survival.

Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

2014 ◽  
Vol 14 (2) ◽  
pp. 358-376
Author(s):  
Marcel Brus
Keyword(s):  
Human Rights ◽  
International Law ◽  
Domestic Court ◽  
Core Element ◽  
International Crimes ◽  
State Immunity ◽  
Domestic Courts ◽  
Humanitarian Ethics ◽  
The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

Remarks by Sean D. Murphy

2020 ◽  
Vol 114 ◽  
pp. 193-199
Author(s):  
Sean D. Murphy ◽  
Claudio Grossman
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Right ◽  
Human Rights Movement ◽  
Interstate System ◽  
International Human ◽  
The Individual

Our conversation might begin by looking backward a bit. The human rights movement from 1945 onward has been one of the signature accomplishments of the field of international law, one that refocused our attention from a largely interstate system to a system where the individual moved in from the periphery to the center. Human rights champions point to numerous landmark treaties, numerous institutions, and the rise of NGOs as a critical vehicle for developing and monitoring human rights rules. Yet others look at the international human right system and still see the state as overly central, tolerating and paying lip service to human rights, but too easily discarding them when they prove to be inconvenient. The persistence of racism comes to mind. As a general matter, how would you assess the strengths and weaknesses of the system that was built essentially during your lifetime?

Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions

2018 ◽  
Vol 112 (4) ◽  
pp. 553-582 ◽  
Author(s):  
Boyd van Dijk
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
History Of ◽  
History Of International Law ◽  
The 1960S ◽  
The Relationship ◽  
Cross Fertilization

AbstractThe relationship between human rights and humanitarian law is one of the most contentious topics in the history of international law. Most scholars studying their foundations argue that these two fields of law developed separately until the 1960s. This article, by contrast, reveals a much earlier cross-fertilization between these disciplines. It shows how “human rights thinking” played a critical generative role in transforming humanitarian law, thereby creating important legacies for today's understandings of international law in armed conflict.

The Security Council on women in war: between peacebuilding and humanitarian protection

2010 ◽  
Vol 92 (877) ◽  
pp. 197-219 ◽  
Author(s):  
Alain-Guy Tachou-Sipowo
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Security Council ◽  
Armed Conflict ◽  
Active Participation ◽  
Human Rights Violations ◽  
Humanitarian Law ◽  
Women In War

AbstractHaving established that massive human rights violations in armed conflict constitute a threat to peace and that women are the most severely affected by the scourge of war, the Security Council has since 1999 adopted a number of resolutions intended specifically for this group. These instruments contribute to the development of humanitarian law applicable to women and acknowledge the value of active participation by women in peace efforts. The following article first analyses the foundations on which the Council has been able to assume responsibility for protecting women in situations of armed conflict, and then considers the actual protection it provides. It concludes that the Council has had varying success in this role, pointing out that the thematic and declaratory resolutions on which it is largely based are not binding and therefore, they are relatively effective only as regards their provisions committing United Nations bodies. The author proposes that the Council's role could be better accomplished through situational resolutions than through resolutions declaratory of international law.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

Legal Protection of Children in Non-International Armed Conflicts in Nigeria

2021 ◽  
pp. 1-27
Author(s):  
Olaitan Oluwaseyi Olusegun
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Legal Protection ◽  
Legal Framework ◽  
Armed Conflicts ◽  
Conflict Situations ◽  
Legal Frameworks ◽  
The Impact ◽  
Domestic Law

Abstract Armed conflicts are characterised by violence and human rights violations with various implications on the citizens, economy and development of nations. The impact is however more pronounced with life-long consequences on children, the most vulnerable members of the society. This article examines the impact of non-international armed conflicts on children in Nigeria and identifies the laws for the protection of children against armed conflicts, both in international law and Nigeria’s domestic law. It also addresses the challenges involved in the protection of children in armed conflict situations in Nigeria. The study found that legal efforts to protect children have not been given sufficient attention in Nigeria. This is mostly due to various challenges including the fragmentation of legal framework and the refusal to domesticate relevant treaties. It is thus recommended that these challenges be addressed through the implementation of effective legal frameworks.

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