scholarly journals The Law of State Immunity before the Brazilian Supreme Court: what is at stake with the “Changri-La” case?

2021 ◽  
Vol 18 (1) ◽  
Author(s):  
Aziz Tuffi Saliba ◽  
Lucas Carlos Lima
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Potential Outcomes ◽  
Sovereign Immunity ◽  
Public International Law ◽  
Constitutional Review ◽  
State Immunity ◽  
Fishing Boat ◽  
Domestic Courts ◽  
Legal Arguments

It was 1943 when the Changri-La fishing boat and its ten fishermen crew disappeared near Cabo Frio, Rio de Janeiro. But only in 2001 the Tribunal Marítimo da Marinha do Brasil recognized that the vessel had been sunk by a German submarine. The relatives of the victims sought compensation at the Brazilian courts for its material damages and non-pecuniary losses. However, they stumbled upon a customary norm of Public International Law: the rule prescribing that a State is entitled to immunity in respect of acta jure imperii before the domestic courts of another State. After a long journey within the Brazilian courts, the case reached the Supremo Tribunal Federal (STF) – the Brazilian Supreme Court, which blends functions of constitutional review and court of last appeal – and in March 2021, the trial finally started. In the Extraordinary Appeal with Interlocutory Appeal (ARE) 954858 – currently suspended after Justice Alexandre de Moraes’ request to see the records –, it is discussed whether human rights violations are an exception to the rule of States’ sovereign immunity. While the case has not yet reached a conclusion, some Justices have already expressed their legal views – their votes, as they are called in the Brazilian Supreme Court – offering potential outcomes for the discussion. In this essay, we analyze two issues present in some of the votes: absence of proper engagement with international legal arguments, revealing a detachment from international law, and the possible consequences of the thesis proposed by the reporting Justice, Edson Fachin. Our endeavor is both to comment and to explain what is at stake with the Changri-la case.

II. Ex parte Pinochet: Lacuna or Leap?

1999 ◽  
Vol 48 (4) ◽  
pp. 949-958 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Eileen Denza
Keyword(s):  
International Law ◽  
The State ◽  
European Convention ◽  
Private Law ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
State Immunity ◽  
House Of Lords ◽  
Domestic Courts ◽  
Heads Of State

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4

Ships, sovereign immunity and the subtleties of the Brussels I regulation: Case C-641/18 LG and others v. Rina SpA, Ente Registro Italiano Navale: Ships, sovereign immunity and the subtleties of Brussels I: Rina

2021 ◽  
pp. 1023263X2110059
Author(s):  
Vincent Power
Keyword(s):  
Member State ◽  
International Law ◽  
Red Sea ◽  
State Court ◽  
Private Law ◽  
Eu Law ◽  
Commercial Activity ◽  
Sovereign Immunity ◽  
Public International Law ◽  
Flag State

More than 1000 passengers on a Panamanian-registered ferry drowned in the Red Sea. Some survivors and relatives of some of the victims sued the classification and certification ship society which had surveyed the ferry. Relying on the Brussels I Regulation, the plaintiffs sued the defendants in the latter’s seat (in Italy). The defendants claimed sovereign immunity as they were acting on behalf of Panama (that is, the flag state). The CJEU ruled that, generally, Article 1(1) of the Regulation means that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of, and upon delegation from, a non-EU Member State, falls within the concept of ‘civil and commercial matters’ in the Regulation. The defendants were therefore not immune. The CJEU qualified its ruling by saying that this is conditional on the activity being not exercised under ‘public powers’ (within the meaning of EU law) because then it would then be a sovereign and not a commercial activity. The CJEU thereby ruled that the customary public international law principle that foreign states have immunity from jurisdiction does not preclude an EU Member State court seised of a dispute from exercising jurisdiction under the Regulation in these circumstances.

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.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

When Does a Court Systematically Deviate from its Own Principles? The Adjudication by the Israel Supreme Court of House Demolitions in the Occupied Palestinian Territories

2015 ◽  
Vol 28 (1) ◽  
pp. 31-47
Author(s):  
GUY HARPAZ
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Loss Aversion ◽  
Judicial Review ◽  
Security Threats ◽  
Public International Law ◽  
The Public ◽  
Palestinian Territories ◽  
Omission Bias

AbstractThe judiciary’s counter-majoritarian role in the realm of national security is of paramount importance. By and large the Israel Supreme Court has taken cognizance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities, relying more and more on public international law. Yet when faced with house demolition measures, it has adopted a different stance, preferring to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law. The article attempts to ascertain the reasons for the Court's different judicial position, by advancing, inter alia, legal, historical, socio-political, and personal reasons, reasons relating to the nature of the petitioners, as well as those pertaining to the intertwined concepts of status quo bias, omission bias, and loss aversion. The findings of the case study may be relevant to other courts, in other countries. When faced with deterrent measures that are employed at times of severe security threats and that are strongly supported by the political establishment and by the public, courts may find it difficult to perform a counter-majoritarian role and to abide by their own judicial doctrines and principles.

THE EVOLUTION IN SPANISH LAW OF STATE IMMUNITY LEADING TO THE ACCEPTANCE OF THE RESTRICTIVE THEORY

1992 ◽  
Vol 2 (1) ◽  
pp. 45-81
Author(s):  
Alberto Soria Jiménez
Keyword(s):  
International Law ◽  
Due Process ◽  
Executive Branch ◽  
European Convention ◽  
Constitutional Court ◽  
Public International Law ◽  
Spanish Law ◽  
State Immunity ◽  
Due Process Of Law ◽  
The Right

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.

scholarly journals Book Review: Public International Law: An Australian Perspective

2005 ◽  
Vol 36 (2) ◽  
pp. 471
Author(s):  
Angela MacDonald
Keyword(s):  
International Law ◽  
Political Discourse ◽  
Public International Law ◽  
Contemporary World ◽  
Oxford University ◽  
Legal Arguments ◽  
Broad Interest ◽  
Oxford University Press ◽  
Geopolitical Context

This article is a book review of Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds) Public International Law: An Australian Perspective, (2 ed, Oxford University Press, Melbourne, 2005) (424 + xl pages) NZ$95. The book explains and illuminates the complexities of international law in the contemporary world from an Australian perspective. MacDonald praises the authors for acknowledging the geopolitical context in which conventions were agreed, and in which contemporary decisions are made by governments. Given the broad interest in international law and actions taken in its name, and given the misreporting and misuse of legal arguments in modern political discourse and public commentary, MacDonald recommends the book to students of all disciplines, journalists, commentators and politicians alike. 

9. Immunities from National Jurisdiction

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
International Organisations ◽  
Sovereign Immunity ◽  
State Immunity ◽  
The United Kingdom ◽  
Head Of State ◽  
National Jurisdiction ◽  
Per Se ◽  
Heads Of State ◽  
The Relationship

States and international organisations and their representatives in the courts of other States enjoy immunity from legal process. This immunity can be split conveniently into State (or sovereign) immunity, and diplomatic and consular immunities. The first concerns foreign States per se (including the Head of State), while the second concerns the personal immunities enjoyed by representatives of those States. This chapter discusses the general principles of state immunity in international law; state immunity in the United Kingdom; Heads of State and other holders of high-ranking office; the relationship between immunity and acts contrary to international law; the immunities of international organisations and their staff; and diplomatic and consular immunities.

Using Treaties in Canadian Courts

2001 ◽  
Vol 38 ◽  
pp. 3-87 ◽  
Author(s):  
Gibran van Ert
Keyword(s):  
Human Rights ◽  
International Law ◽  
Common Law ◽  
International Treaties ◽  
Public International Law ◽  
Canadian Law ◽  
Domestic Courts ◽  
Reception System ◽  
Comprehensive Manner ◽  
Domestic Law

SummaryIncreasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of theCanadian Charter of Rights and Freedomsand other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule inLabour Conventions, and the landmark decision inBakerv.Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

The Practice and Case Law of Israel in Matters Related to International Law

1997 ◽  
Vol 31 (4) ◽  
pp. 803-853 ◽  
Author(s):  
Rotem M. Giladi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The United States ◽  
District Court ◽  
Sovereign Immunity ◽  
The Supreme Court ◽  
Civil Suit ◽  
The Subject ◽  
The Government

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.

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