State Immunity and the Violation of Human Rights

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Martinus Nijhoff Publishers, 01.01.1997 - 242 Seiten
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 The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a restrictive concept under which foreign states can be sued under certain circumstances.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 interestof the perpetrating state to remain immune from foreign jurisdiction must yield to the interest of the injured individual to obtain adequate redress.
 

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Inhalt

INTRODUCTION
1
State Immunity and Related Immunities and Privileges
24
Related Concepts
33
THE CURRENT LEGAL SITUATION
51
The SLA of the United Kingdom
84
Australia
96
Jurisprudence in Countries without Immunity Statutes
103
The European Convention on State Immunity
119
Practical Effects of the Increased Significance of Human Rights
150
The European Convention on Human Rights
160
RECONCILING HUMAN RIGHTS AND STATE
189
An Attempt to Reevaluate Fundamental Individual Interests
196
Different Solutions for Different Types of Human Rights
204
SUMMARY
217
BIBLIOGRAPHY
225
INDEX
239

Draft Proposals for Multilateral Conventions
125
DEVELOPING THE CASE AGAINST IMMUNITY
143

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