State Immunity, Human Rights and the Necessity of Alternative Means of Redress
Title: State Immunity, Human Rights and the Necessity of Alternative Means of Redress
Author: VARA JACOBO, Marcos Octavio
Citation: Florence : European University Institute, 2012
Series/Number: EUI LLM theses; Department of Law
In its judgment of February 3, 2012, the International Court of Justice (ICJ) determined that the deprivation of State immunity by the Italian national courts was contrary to international law. The Court decided this matter on several grounds. The two main reasons for this finding were that: 1) Jus cogens norms do not impact on the procedural character of State immunity; and 2) the territorial tort exception, prescribed in the United Nations Convention of State Immunity and its property, is inapplicable in the context of an armed conflict. Additionally, the ICJ also determined that the ‘last resort’ argument presented by the Italian counsel did not justify the deprivation of sovereign immunity of Germany. This contribution looks at the extent to which the ICJ analyzed these arguments. It will consider what happens when a State repeatedly refuses to provide due reparation to individuals, either by failing to establish diplomatic negotiations, or by refusing to offer a legal and effective domestic remedy through its national courts. In this situation, this work asks whether the forum State, through the right of access to justice and the requirement of alternative means of redress, can exercise ‘subsidiary’ jurisdiction and provide a remedy for the victim of an armed conflict.
LC Subject Heading: Immunities of foreign states; Government liability (International law); Jurisdiction (International law)
Supervisor: Professor Francesco Francioni, European University Institute.; Award date: 26 November 2012
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