State Immunity and the Violation of Human Rights


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 The principle of absolute immunity of states from the adjudicatory jurisdiction of foreign states has been replaced by a restrictive concept under which foreign states can be sued under certain circumstances.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.

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Preface. Abbreviations. 1: Introduction. I. The Problem of State Immunity in General. II. State Acts Constituting Torts under Domestic Law. III. The Scope and Objective of this Study. IV. Reasons for State Immunity. V. History and Development of Sovereign Immunity. VI. Immunity from Adjudication and Immunity from Attachment and Execution. VII. State Immunity and Related Immunities and Privileges. VIII. Related Concepts. 2: The Current Legal Situation. I. National Statutes on Sovereign Immunity and their Application in Court Practice. II. Jurisprudence in Countries without Immunity Statutes. III. The European Convention on State Immunity. IV. Other Conventions and Treaties. V. Draft Proposals for Multilateral Conventions. VI. Conclusion. 3: Developing the Case Against Immunity. I. The Protection of Individuals in International Law. II. Practical Effects of the Increased Significance of Human Rights and the Individual in Other Areas of International Law. III. Conclusion. 4: Reconciling Human Rights and State Immunity. I. Solutions Proposed by Other Authors. II. An Attempt to Reevaluate Fundamental Individual Interests and Collective Sovereignty Interests. Summary. Bibliography. Index.
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