Browsing by Author "Friman, Julia"

This thesis addresses the complicated and controversial relationship between the international doctrine of sovereign State immunity from jurisdiction and the norms for the protection of fundamental human rights. As a result of the rapid development of human rights law over the last few decades, the individual‘s status in international law has undergone considerable change. Individuals are no longer only seen as legal objects, but as legal subjects entitled to fundamental rights and remedies when those rights are violated. Yet, the possibility of gaining international enforcement for these rights remains problematic, because international adjudication mechanisms are only still being developed. 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. But, it is exactly in this national sphere where the barrier known as the doctrine of sovereign State immunity arises. Consequently, the underlying tension between State immunity law and human rights norms has also become increasingly significant. Indeed, the idea and existence of a so-called human rights exception to sovereign immunity has been one of the most discussed and debated issues in this area of law. The research question of this thesis can, thus, be summarized to the following: what different kinds of approaches to advocate a human rights exception to State immunity from jurisdiction have been proposed over time and which of them can still be considered legally credible today? To answer this current question, the author examines relevant legislation, academic discussion as well as judicial practice from national and international levels. The thesis demonstrates the crucial importance of the so-far existing case law to the evolution of the human rights exception in particular. Although domestic courts, the European Court of Human Rights and the International Court of Justice have quite consistently upheld State immunity, their case law has come a long way in terms of clarifying the problematic liaison between State immunity and human rights law. This is especially true after the International Court of Justice delivered its eagerly-awaited judgment in Jurisdictional Immunities of the State quite recently, on February 3rd, 2012 – a decision which is explored in depth in this thesis. This thesis concludes that, according to contemporary international law, the human rights exception to sovereign immunity stands on very narrow ground. As it becomes clear that no human rights exception to immunity based solely on the gravity of the violations or on the fact that it violated jus cogens norms exists, it is argued that, currently, the only credible and legally tenable way to advocate a human rights exception is through the torts exception to State immunity, also known as the ?personal injuries and damage to property exception?. Finally, despite the possible negative side effects of the human rights exception considered, a critical and cautious application of the torts exception to State immunity is proposed. As human rights are such a powerful language, to do otherwise would seem counterproductive in the grand scheme of things.