State Immunity And The Violation Of Human Rights

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State Immunity and the Violation of Human Rights

Jürgen Bröhmer
State Immunity and the Violation of Human Rights Book PDF

Author : Jürgen Bröhmer
Publisher : BRILL
Page : 263 pages
File Size : 49,5 Mb
Release : 2021-09-27
Category : Law
ISBN : 9789004481688

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State Immunity and the Violation of Human Rights by Jürgen Bröhmer Pdf

The field of international human rights has been one of the most prominent and dynamic areas of public international law in recent decades. At the same time the law of state immunity, albeit less prominent, has also been subjected to a process of dynamic change. The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a restrictive concept under which foreign states can be sued under certain circumstances. The violation of fundamental human rights by foreign states is, however, still widely regarded as immunity- protected conduct, be it because such violations must be considered as governmental acts (acta jure imperii) or because the violations were committed outside the territory of the foreign state. Consequently, it is often impossible for the victim of such violations to bring damage proceedings against the foreign state based on municipal (tort) law in a municipal court. The present study attempts to demonstrate that international law does not per se demand that foreign states be granted immunity in such cases. The current state of international immunity law as evidenced by state practice and the work of several international learned bodies is surveyed extensively. It is shown that the granting of immunity may contradict the procedural guarantees of the European Convention of Human Rights. The impact of human rights law on the traditional concept of diplomatic protection is described. 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 individual to obtain adequate redress.

State Immunity in International Law

Xiaodong Yang
State Immunity in International Law Book PDF

Author : Xiaodong Yang
Publisher : Cambridge University Press
Page : 941 pages
File Size : 40,5 Mb
Release : 2012-09-27
Category : Law
ISBN : 9780521844017

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State Immunity in International Law by Xiaodong Yang Pdf

Xiaodong Yang examines the issue of jurisdictional immunities of States and their property in foreign domestic courts.

The Law of State Immunity

Hazel Fox,Philippa Webb
The Law of State Immunity Book PDF

Author : Hazel Fox,Philippa Webb
Publisher : OUP Oxford
Page : 704 pages
File Size : 52,8 Mb
Release : 2013-08-29
Category : Law
ISBN : 9780191669767

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The Law of State Immunity by Hazel Fox,Philippa Webb Pdf

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

Remedies against Immunity?

Valentina Volpe,Anne Peters,Stefano Battini
Remedies against Immunity Book PDF

Author : Valentina Volpe,Anne Peters,Stefano Battini
Publisher : Springer Nature
Page : 427 pages
File Size : 48,6 Mb
Release : 2021-04-08
Category : Law
ISBN : 9783662623046

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Remedies against Immunity? by Valentina Volpe,Anne Peters,Stefano Battini Pdf

The open access book examines the consequences of the Italian Constitutional Court’s Judgment 238/2014 which denied the German Republic’s immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II. This landmark decision created a range of currently unresolved legal problems and controversies which continue to burden the political and diplomatic relationship between Germany and Italy. The judgment has wide repercussions for core concepts of international law and for the relationship between different legal orders. The book’s three interlinked legal themes are state immunity, reparation for serious human rights violations and war crimes (including historical ones), and the interaction between international and domestic institutions, notably courts. Besides a meticulous legal analysis of these themes from the perspectives of international law, European law, and domestic law, the book contributes to the civic debate on the issue of war crimes and reparation for the victims of armed conflict. It proposes concrete legal and political solutions to the parties involved for overcoming the present paralysis with a view to a sustainable interstate conflict solution and helps judges directly involved in the pending post-Sentenza reparation cases. After an Introduction (Part I), Part II, Immunity, investigates core international law concepts such as those of pre/post-judgment immunity and international state responsibility. Part III, Remedies, examines the tension between state immunity and the right to remedy and suggests original schemes for solving the conundrum under international law. Part IV adds European Perspectives by showcasing relevant regional examples of legal cooperation and judicial dialogue. Part V, Courts, addresses questions on the role of judges in the areas of immunity and human rights at both the national and international level. Part VI, Negotiations, suggests concrete ways out of the impasse with a forward-looking aspiration. In Part VII, The Past and Future of Remedies, a sitting judge in the Court that decided Sentenza 238/2014 adds some critical reflections on the Judgment. Joseph H. H. Weiler’s Dialogical Epilogue concludes the volume by placing the main findings of the book in a wider European and international law perspective.

The Law of State Immunity

Hazel Fox,Philippa Webb
The Law of State Immunity Book PDF

Author : Hazel Fox,Philippa Webb
Publisher : OUP Oxford
Page : 704 pages
File Size : 45,5 Mb
Release : 2013-08-29
Category : Law
ISBN : 9780191669767

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The Law of State Immunity by Hazel Fox,Philippa Webb Pdf

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

Immunities in the Age of Global Constitutionalism

Anne Peters,Evelyne Lagrange,Stefan Oeter,Christian Tomuschat
Immunities in the Age of Global Constitutionalism Book PDF

Author : Anne Peters,Evelyne Lagrange,Stefan Oeter,Christian Tomuschat
Publisher : Martinus Nijhoff Publishers
Page : 378 pages
File Size : 54,7 Mb
Release : 2014-11-07
Category : Law
ISBN : 9789004251632

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Immunities in the Age of Global Constitutionalism by Anne Peters,Evelyne Lagrange,Stefan Oeter,Christian Tomuschat Pdf

The law of immunity of states, of international organisations, and of public officials is one of the most important and most controversial topics of international law. The book takes up new trends and challenges in this field and assesses them within the framework of global constitutionalism and multilevel governance. Contains chapters in both English and French.

The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law

Rosanne van Alebeek
The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law Book PDF

Author : Rosanne van Alebeek
Publisher : Oxford University Press on Demand
Page : 488 pages
File Size : 46,7 Mb
Release : 2008
Category : Law
ISBN : 9780199232475

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The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law by Rosanne van Alebeek Pdf

This title is a comprehensive treatment of the development of international human rights law, international criminal law and international immunities, and asks whether states and their officials can shield themselves from foreign jurisdiction by invoking international immunity rules when human rights issues are involved.

International Law and the Protection of People at Sea

Irini Papanicolopulu
International Law and the Protection of People at Sea Book PDF

Author : Irini Papanicolopulu
Publisher : Oxford University Press
Page : 288 pages
File Size : 46,8 Mb
Release : 2018-03-09
Category : Law
ISBN : 9780192506467

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International Law and the Protection of People at Sea by Irini Papanicolopulu Pdf

Media interest in the fates of people at sea has heightened across the last decade. The attacks and the hostage taking of victims by Somali pirates, and the treatment of migrants and asylum seekers in the Mediterranean, ask pressing questions, as does the sinking of the Costa Concordia off the Italian island of Giglio which, one hundred years after the Titanic capsized, reminded the world that, despite modern navigation systems and technology, shipping is still fallible. Do pirates have human rights? Can migrants at sea be turned back to the State from which they have sailed? How can the crews of vessels be protected against inhuman and degrading working and living conditions? And are States liable under international human rights treaties for arresting drug traffickers on the high seas? The first text to comprehensively compare the legal rights of different people at sea, Irini Papanicolopulu's timely text argues that there is an overarching duty of the state to protect people at sea and adopt all necessary acts with a view towards ensuring enjoyment of their rights. Rather than being in doubt, she reveals that the emerging law in this area is watertight.

The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law

Rosanne Van Alebeek
The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law Book PDF

Author : Rosanne Van Alebeek
Publisher : OUP Oxford
Page : 488 pages
File Size : 55,7 Mb
Release : 2008-03-06
Category : Law
ISBN : 9780191552540

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The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law by Rosanne Van Alebeek Pdf

The development of international human rights law and international criminal law has triggered the question whether states and their officials can still shield themselves from foreign jurisdiction by invoking international immunity rules when human rights issues are involved. The Pinochet case was the first case that put this issue in the limelight of international attention. Since then, the question has been put to several domestic and international courts, and has engaged the minds of scholars and politicians around the world. This book examines the tension between international immunity rules, international human rights law, and international criminal law. The progressive development of a normative system of international human rights law and international criminal law without the simultaneous development of international institutional enforcement mechanisms had brought the question of the role of national courts in the application of these norms to the fore and has made the question as to the relation between immunity rules and human rights and international criminal law an immediate one. The tension between the centuries old immunity rules and the relatively recent developments in international human rights law and international criminal law presents itself in two distinct forms. In the first place it can be questioned whether immunity rules as such are compatible with certain fundamental rights of individuals under international law such as the rights of access to court, the right to a remedy, or the right to effective protection. Secondly, it can be questioned whether immunity rules apply unabridged in proceedings concerning grave human rights abuses. In its examination of these two questions this book sets out to clearly distinguish the different scope and nature of the rule of state immunity, the rule of functional immunity and the personal immunity of diplomatic agents and heads of state. While strong arguments against certain applications of immunity rules can be derived from international human rights law and international criminal law, this book argues that an unqualified attack on immunity rules risks casting a shadow over all human rights based arguments.

Sovereign Immunity Under Pressure

Régis Bismuth,Vera Rusinova,Vladislav Starzhenetskiy,Geir Ulfstein
Sovereign Immunity Under Pressure Book PDF

Author : Régis Bismuth,Vera Rusinova,Vladislav Starzhenetskiy,Geir Ulfstein
Publisher : Springer Nature
Page : 485 pages
File Size : 47,7 Mb
Release : 2022-01-19
Category : Law
ISBN : 9783030877064

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Sovereign Immunity Under Pressure by Régis Bismuth,Vera Rusinova,Vladislav Starzhenetskiy,Geir Ulfstein Pdf

This book offers a critical analysis of current challenges and developments of the State immunity regime through three dimensions: it looks at State immunity from a comparative perspective; it discusses the major trends relating to the interplay between State immunity and the protection of human rights as well as counter-terrorism; and it examines the relationship between State immunity and the financial obligations of States. Part I, Sovereign Immunity from a Comparative Perspective: Weak v. Strong Immunity Regimes, deals with the diversity of existing regimes of State immunity at the national level. This part aims to explore different approaches of particular states to sovereign immunity and their general attitude to international law, and attempts to understand why some States favour a weaker State immunity regime by multiplying exceptions or interpreting them broadly, while others continuously support a stronger one and sometimes rely on the doctrine of absolute immunity. Part II, International Customary Law of Sovereign Immunity, Human Rights and Counter-Terrorism, highlights how human rights and counter-terrorism have shaped the law and practice of sovereign immunity. This part specifically discusses the role of national legislators and judges in the development of international law, emerging conflicts between national constitutional norms and the rules of international law concerning State immunity and human rights, and possible ways of their reconciliation. Part III, Sovereign Immunity of States and their Financial Obligations, contributes to on-going debates related to the mixed and complex nature of States’ financial obligations. In this part, authors elaborate on perceptions of the underlying public-private law divide, cross influences in public and private international law and their consequences for State immunity, as well as recent trends relating to immunity from execution.

The State Immunity Controversy in International Law

Ernest K. Bankas
The State Immunity Controversy in International Law Book PDF

Author : Ernest K. Bankas
Publisher : Springer Science & Business Media
Page : 564 pages
File Size : 53,6 Mb
Release : 2005-06-30
Category : Law
ISBN : 3540256954

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The State Immunity Controversy in International Law by Ernest K. Bankas Pdf

The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal.

Access to Justice as a Human Right

Francesco Francioni
Access to Justice as a Human Right Book PDF

Author : Francesco Francioni
Publisher : OUP Oxford
Page : 272 pages
File Size : 42,5 Mb
Release : 2007-10-25
Category : Law
ISBN : 9780191018657

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Access to Justice as a Human Right by Francesco Francioni Pdf

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints put by security threats, such as terrorism, on the full protection of freedom and human rights. This collection of essays offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

The Cambridge Handbook of Immunities and International Law

Tom Ruys,Nicolas Angelet,Luca Ferro
The Cambridge Handbook of Immunities and International Law Book PDF

Author : Tom Ruys,Nicolas Angelet,Luca Ferro
Publisher : Cambridge University Press
Page : 128 pages
File Size : 42,8 Mb
Release : 2019-04-30
Category : Law
ISBN : 9781108284998

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The Cambridge Handbook of Immunities and International Law by Tom Ruys,Nicolas Angelet,Luca Ferro Pdf

Few topics of international law speak to the imagination as much as international immunities. Questions pertaining to immunity from jurisdiction or execution under international law surface on a frequent basis before national courts, including at the highest levels of the judicial branch and before international courts or tribunals. Nevertheless, international immunity law is and remains a challenging field for practitioners and scholars alike. Challenges stem in part from the uncertainty pertaining to the customary content of some immunity regimes said to be in a 'state of flux', the divergent – and at times directly conflicting - approaches to immunity in different national and international jurisdictions, or the increasing intolerance towards impunity that has accompanied the advance of international criminal law and human rights law. Composed of thirty-four expertly written contributions, the present volume uniquely provides a comprehensive tour d'horizon of international immunity law, traversing a wealth of national and international practice.

Immunity of International Organizations

Anonim
Immunity of International Organizations Book PDF

Author : Anonim
Publisher : BRILL
Page : 375 pages
File Size : 43,8 Mb
Release : 2015-06-19
Category : Business & Economics
ISBN : 9789004296060

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Immunity of International Organizations by Anonim Pdf

Immunity for international organizations and their staff, while long considered necessary to their functioning, has fallen under scrutiny and criticism in practice. These contributions, originally prepared for a conference held at Leiden University in June 2013, are re-published here in celebration of the 10th anniversary of the International Organizations Law Review.