State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights

Leiden Journal of International Law

Volumn 15, Issue 3, 2002, Pages 703-714

  Orakhelashvili, Alexander ^a  

^a JESUS COLLEGE   (United Kingdom)

Author keywords

European Convention on Human Rights; jus cogens; sources of international law; sovereign and non sovereign acts; state immunity

Indexed keywords

EID: 85011444658     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000328     Document Type: Article

References (25)

1. Al-Adsani, 34 EHRR 11, at 277-281, paras. 9-19 (2002).
2. Fogarty, 34 EHRR 12, at 305-306, paras. 10-14 (2002).
3. McElhinney, 34 EHRR 13, at 324-328, paras. 7-16 (2002).
4. Al-Adsani, 34 EHRR 13 note 1, at 289, para. 54.
5. 1972 European Convention on State Immunity, ETS No. 074 (Basle, 16. V. 1972).
6. Cf. I Congreso (HL), I AC 260-261 (1983), where Lord Wilberforce refused to consider the Basle Convention as evidence of general international law, requiring that a convention must “bear a legislative character and there must be a wide general acceptance of it as law-making, before that condition is satisfied.”
7. Al-Adsani, where Lord Wilberforce refused to consider the Basle Convention as evidence of general international law, requiring that a convention must “bear a legislative character and there must be a wide general acceptance of it as law-making, before that condition is satisfied.” note 1, at 289-290, para. 57.
8. D.P. O'Connell, International Law 846 (1970). Lack of uniformity and consistency of practice is also emphasised in R. Higgins, Problems and Process 81 (1994), and H. Lauterpacht (Ed.), Oppenheim's International Law, Vol. 1, 8th Ed., 274 (1955).
9. I Congreso (HL), Oppenheim's International Law note 9, at 260.
10. Lord Denning, Trendtex Trading v. Bank of Nigeria, 1 QB 552-553 (1977). See also Lord Wilberforce noting that the law on state immunity is in state of development and many of its aspects are uncertain, I Congreso (HL), I Congreso (HL) note 9, at 260.
11. It must be noted that there was no domestic litigation concerning the claims in Fogarty which were subsequently submitted to the European Court, since the applicant has been advised that because of invocation of immunity by the United States she had no remedy in the law of the United Kingdom. See Lord Wilberforce noting that the law on state immunity is in state of development and many of its aspects are uncertain note 2.
12. Al-Adsani, High Court, 103 ILR 420, at 427-431; Al-Adsani, Court of Appeal, 107 ILR 536, at 538-547.
13. McElhinney, Irish Supreme Court, Decision of 15 December 1995, 104 ILR 691, at 701.
14. See, for example, Siderman de Blake v. Argentina, 103 ILR 455; Princz v. Federal Republic of Germany, 33 ILM 1483 (1994); Smith et al. v. Libyan Arab Jamahiriya, 36 ILM 100 (1997). In the literature, it has also been explained that the obstacle in the way of the argument supporting exception to state immunity in cases of torture is not the rationale of this argument, but “its implementation [is] firmly against the grain of the text of domestic legislation.” W. Adams, In Search of Defence of the Transnational Human Rights Paradigm: May Jus Cogens Norms be Invoked to Create Implied Exceptions in Domestic Immunity Statutes?, in S. Craig (Ed.), Torture as Tort 247, at 271 (2001).
15. Cf. I. Brownlie, Principles of Public International Law 325-327 (1998).
16. See Higgins, Principles of Public International Law note 11, at 78 et seq.; O'Connell, Principles of Public International Law note 11, at 844 et seq.
17. I Congreso (HL), I Congreso (HL) note 9, at 252 and 262.
18. Fogarty, I Congreso (HL) note 2, at 310-312, paras. 22 and 30.
19. Concurring Opinion of Judges Costa, Caflisch and Vajic, Id., at 316, para. 3.
20. McElhinney, Concurring Opinion of Judges Costa note 16 note 3, at 330-331, paras. 22 and 27-28.
21. Al-Adsani, Id. note 1, at 291, para. 61.
22. The basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule. Id., Joint Dissenting Opinion of Judges Rozakis and Caflish joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic, at 298, para. 1.
23. See The basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. note 2 and the accompanying text.
24. McElhinney, The basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. note 2 and the accompanying text. note 3, at 334, para. 39.
25. Al-Adsani, The basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. note 2 and the accompanying text. note 3 note 1, at 280 and 288, paras. 19 and 51.