State immunity and human rights european journal of. This article explores the courts reasoning and its consistency with international legal theory and preceding case law with the view to verifying whether, and in which sense, the ferrini judgment may facilitate a radical reappraisal of the relationship between human rights and the law of state immunity. European court practice concerning state immunity from enforcement measures 805 a rather peculiar approach is pursued by the 1972 european convention on state immunity,8 which prohibits enforcement measures in general, subject. The argument will then proceed to identify five different grounds on which national courts can and must deny immunity to states and officials in both civil and criminal proceedings when the subjectmatter of litigation involves serious violations of human rights andor international crimes. Greece intervening definitively draws the line under the question whether states enjoy jurisdictional immunity in cases involving allegations. Jurisdictional immunities of the state for serious violations. Apart from the conflict between state immunity and human rights protection, the judgment raises further theoretical questions concerning the relationship between international law and national constitutional law, the role of domestic courts in the formation and change of international customary law, as well as the separation of powers in a. Human rights violations in the united states a report on u.
In the ferrini case the italian supreme court affirmed that germany was not entitled to sovereign immunity for serious violations of human rights carried out by german occupying forces during world war ii. The basics state immunity grew from the need to protect officials or representatives of foreign states, and for a long time was concerned mainly with the jurisdiction of states over the warships and trading ships belonging to other states. Italy provides the definitive pronouncement on the relationship between state immunity and alleged human rights violations under general international law. Bibliography and abbreviations books born, gary, international arbitration, cases and materials, new york 2011 born. State immunity or how does a victim of a human rights violation claim compensation iv kalogeropoulou and others v. Greece and germany, european courts of human rights, admissability decision of december 12, 2002, appl. State immunity or how does a victim of a human rights violation claim compensation ii ii.
Country reports on human rights practices for 2017 united states department of state bureau of democracy, human rights and labor. The connection between state immunity and human rights protection next, the question has to be risen in how far we can connect the principle of state immunity with ideas of human rights. They argue that fundamental human rights such as the right to life and the prohibition against torture should take precedence over rules of state immunity in. Liability and immunity for human rights violations. In the ferrini case the italian supreme court affirmed that germany was not entitled to sovereign immunity for serious violations of human rights carried out by. However, at the inception of another broad movement to restrict state immunity, now predicated on human rights protection, it is useful to revisit the topic and to attempt to determine which rationale should control. On the other hand, law on state immunity is a wellestablished part of public international law. Can serious human rights violations justify a breach of state. Head of state immunity in the case of grave violations of human rights. Pdf an emerging exception to foreign state immunity. For these reasons, the granting of immunities to the state may lead to impunity from jurisdiction in cases in which certain human rights recognised as peremptory. State immunity and human rights, journal of international.
Some commentators argue states should not be immune to cases relating to serious human rights abuses. Though there are number of states still following the doctrine of absolute state immunity, it is recognised, inter alia, in international treaties. Pdf state immunity and human rights is there a future. Pdf state immunity and human rights is there a future after. Different solutions for different types of human rights violations. University of leicester school of law research paper no. If diplomatic immunity rules constitute jus cogens and human rights rules do not, then diplomatic immunity should prevail. The conflict between state immunity and certain human rights. They argue that fundamental human rights such as the right to life and the prohibition against torture should take precedence over rules of state immunity in technical terms, they constitute norms of jus cogens. In the ferrini case the italian supreme court affirmed that germany was not entitled to sovereign immunity for serious violations of human rights car. Request pdf state immunity or state impunity in cases of violations of human rights recognised as jus cogens norms state immunity is an inalienable concept in international law designed to. State sovereignty and human rights irreconcilable tensions. Abstract this article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful illtreatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates.
Human rights violations vs sovereign immunity, comparing national courts of foreign states to the international criminal court. In its recent decision in jurisdictional immunities of the state germany v italy. At the same time the law of state immunity, albeit less prominent, has also been subjected to a process of dynamic change. Under the normative hierarchy theory, a states jurisdictional immunity is abrogated when the state violates human rights protections that are considered peremptory international law norms, known as jus cogens. One of the undisputed difficulties in the assessment of states entitlement to immunity in the context of human rights violations is the compatibility of the new concepts. The italian supreme court decision on the ferrini case, european journal of international law. State immunity act, which grants to heads of states the same privileges and.
Federal republic of germany, a minority on the hellenic supreme court criticized the theory because of its unproven. State immunity and human rights violations chapter 10 state. And in many cases, a states interest in providing remedies for human rights violations will outweigh the business or foreign relations costs of human rights litigation that are often invoked to deny remedies. State immunity and the violation of human rights jurgen. Dec 01, 2011 the argument will then proceed to identify five different grounds on which national courts can and must deny immunity to states and officials in both civil and criminal proceedings when the subjectmatter of litigation involves serious violations of human rights and or international crimes. Bouzari appealed, and the ontario court of appeal confirmed the decision of the trial court. Since the end of world war ii, the core importance of human rights has been universally acknowledged. State immunity from jurisdiction and the violation of. Incompatibility of the state immunity act with the human rights act and the right to a remedy under international and european law after benkharbouche june 12, 2016. A possible human rights exception could include international crimes and other serious human rights violations. International law in the posthuman rights era texas law. Mar 20, 20 state immunity and human rights state immunity and human rights mcgregor, lorna 20320 00. Immunity versus human rightsbianchi institute for international law. The impact of human rights law on the traditional concept of diplomatic protection is described.
On august 16, mara salvatrucha criminal gang members entered one of the largest. States cannot be sued for serious human rights violations before the municipal courts of another state. Notwithstanding the immediate certainty produced by this judgment, its longevity is potentially challenged by two aspects of contemporary international law. As already stated, state immunity is used to protect one state from. Human rights violations in certain countries in 2012. The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a restrictive.
The idea behind this report is to draw attention to the violation of human rights violations in those countries that traditionally represent themselves as developed democracies, to illustrate by concrete facts their failure to. The italian supreme court decision on the ferrini case article pdf available in european journal of international law 161 february 2005 with 123 reads. The study concludes that a further restriction of the immunity privilege is necessary, and criteria are offered to distinguish between violations of human rights which should remain immunityprotected and violations where the interest of the perpetrating state to remain. Many human rights advocates and legal scholars view the granting of immunity to a state or its representatives from proceedings arising out of serious human rights violations as artificial, unjust, and. This situation results in a clash between human rights and diplomatic immunity. In the recent times there has been an unfortunate tendency on the part of diplomats to disregard the law of the receiving state and invoke immunity to escape liability leading to the abuse of these privileges. Corporate social responsibility and the law blog disclaimer foley hoag liability and immunity for human rights violations. Hence, victims of human rights violations have sought other ways to obtain redress, in particular by bringing civil claims against the responsible state in the national courts of another state.
State immunity is not an absolute state right under the international legal order. After world war ii, but especially since the 1980s, human rights expanded to almost every corner of international law. Through its declaralab selfevaluation tool, the secretariat provided technical assistance. One of the undisputed difficulties in the assessment of states entitlement to immunity in the context of human rights violations is the compatibility of the new concepts with current theoretical assumptions regarding state immunity. The author explores the current law and practice in respect of state immunity and immunity accorded to state officials with particular regard to civil proceedings for torture, contrasting this. It is shown that the granting of immunity may contradict the procedural guarantees of the european convention of human rights. Note that the legitimacy of such assumptions has no bearing on the central thesis of this article, which does not hinge on the existence or nonexistence of jus cogens, but on the fact that state immunity protections for human rights violations are rooted in neither fundamental principles of international law nor international custom. 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.
The aim of this thesis is to examine the question of whether there is an emerging exception in international law to the principle of foreign state immunity in respect of violations of jus cogens norms. State immunity and the violation of human rights brill. The italian supreme court decision on the ferrini case 91 instance the princz case. As international law currently stands, there are insuperable obstacles to an ideally unhampered exercise of jurisdiction and denial of immunity over human rights. Can serious human rights violations justify a breach of.
Jurisdictional immunities of the state for serious. Greece intervening definitively draws the line under the question whether states enjoy. In addition, the attorney general and security forces had agreed on a temporary process to remove immunity from security forces and government institutions involved in human right violations. State immunity and human rights journal of international criminal. Thus, currently customary international law plays the most central role when trying to reconcile head of state immunity and current requirements of international criminal and human rights law. This articles theory of state remedies for human rights has doctrinal and. Goettingen journal of international law 4 2012 3, 809852 doi. Head of state immunity in the case of grave violations of. State immunity or state impunity in cases of violations of human. The study concludes that a further restriction of the immunity privilege is necessary, and criteria are offered to distinguish between violations of human rights which should remain immunityprotected and violations where the interest of the perpetrating state to remain immune from foreign jurisdiction must yield to the interest of the injured. The majority of, if not all, suits involving allegations of human rights violations have been brought by nationals or residents of the forum state on an assessment that the courts of the state allegedly responsible were unavailable or inadequate. Jun 07, 2017 when human rights are framed as more inviolable than state sovereignty, the human rights regime can claim humanitarian grounds to impinge on state sovereignty and put the states treatment of. The impact of current legal developments on corporate.
State immunity is an inalienable concept in international law designed to prevent abuses of interstate relations. While the ecthr is the only international human rights tribunal to have been seized of the question of the relationship between human rights and state immunity to date, 58 a similar result may emerge from other international human rights bodies with provisions on access to a court or an effective procedural remedy, 59 if presented with such cases. But under the state accountability model, state of. Denying foreign official immunity for egregious human rights abuses beth stephens abstract government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. It was not until the mid1970s, with prosecutions of human rights violations in greece and portugal, that the individual.
Bianchi, denying state immunity to violations of human rights, 46 austrian journal of public and international law 1994 p. State immunity or state impunity in cases of violations of. But, it is exactly in this national sphere where the barrier known as the doctrine of sovereign state immunity arises. State immunity and human rights journal of international. By establishing head of state immunity as a norm of international customary law part 1. State immunity from jurisdiction and the violation of human. The idea behind this report is to draw attention to the violation of human rights violations in those countries that traditionally represent themselves as developed democracies. State immunity and human rights state immunity and human rights mcgregor, lorna 20320 00. International crimes, human rights violations, and the. See michael bothe, the question of state immunity before nationalcourts in cases of massive violations of human rights and of internationalhumanitarian law 2011 legal opinion written for amnesty international on filewith the author arguing it is shortsighted to argue based on the value orientation ofmodern international law that. Today, against a backdrop of multiple conflicts, humanitarian emergencies and severe violations of international. United states department of state bureau of democracy, human rights, and labor violations, leading president lopez obrador to call for talks with union leaders and grupo mexicos ownership to resolve the miners grievances. The study concludes that a further restriction of the immunity privilege is necessary, and criteria are offered to distinguish between violations of human rights which should remain immunity protected and violations where the interest of the perpetrating state to remain immune from foreign jurisdiction must yield to the interest of the injured. Head of state immunity from foreign criminal jurisdiction.
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