STATE IMMUNITY & HUMAN RIGHTS

State immunity has been challenged on different grounds, including Human Rights grounds. If State Immunity conflicts with Human Rights which one prevails?

State immunity has been challenged on different grounds, including Human Rights grounds. If State Immunity conflicts with Human Rights which one prevails?

Introduction

The development of substantive norms of international human rights and international criminal law has not been matched by the development of mechanisms and procedures for their enforcement. The primary methods of judicial enforcement envisaged by international law are the domestic courts of the state where the human rights violation or international crime occurred and the courts of the state responsible for that violation. To this end, international law imposes obligations on states to prosecute those who have committed international crimes within their territory. Likewise human rights law includes a right to a remedy or to reparation provided by the state that has violated the substantive human right. However, these methods of enforcement of human rights and international criminal law often fail. Domestic law may not incorporate the relevant international human rights norm. International crimes are often committed by state agents as part of state policy, and so governments do not routinely prosecute their own officials engaged in such action (though, as has happened in Latin America, changes of government may bring a change of policy and prosecutions for past official conduct) (Dixon, 2007: 270-279).

All of this has led to what has been described as a culture of impunity which contributes to a climate in which human rights violations persist and are not deterred. In order to counter this culture, there are two other possible fora where judicial enforcement of human rights norms may take place. First, it is possible that such enforcement takes place in international (including regional) courts: such as the human rights tribunals or quasi-judicial bodies dealing with state responsibility or international criminal tribunals dealing with the penal responsibility of individuals. However, enforcement of human rights norms by such courts is limited, inter alia, by the fact that an international court with jurisdiction over the acts in question may not exist.

However, there are at least two international law hurdles that also have to be overcome. It will have to be established that the foreign state has jurisdiction, as a matter of international law, to prescribe rules for the matter at hand and to subject the issue to adjudication in its courts. Also, where a case is brought in a domestic court against a foreign state or foreign state official or agent, it must be established that the state or its official is not immune from the jurisdiction of the forum. There are recent developments suggesting movement in international law on both of these issues, but the precise contours of the relevant rules are yet to be conclusively determined (Steiner, Alston & Goodman, 2008: 240-289).

This article addresses the last of the obstacles identified: the international law rules on the immunity of state officials. Whilst it is commonly accepted that state officials ...