14 Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges
Year: 2014
Type: book-chapter
Abstract: Challenges" (2013) 2 state immunity in case of ius cogens violations.3 Meanwhile, the International Court of Justice in Jurisdictional Immunities 4 has confirmed the analysis given by Thomas Giegerich in 2004.In this volume, Michael Bothe and Christian Tomuschat comment on the Jurisdictional Immunities Case. 5 Whilst Christian Tomuschat is in line with the ICJ, Michael Bothe argues in favour of another solution as Isabelle Pingel did in 2004.This shall not be repeated here.Rather, the present chapter shall consider the debate from a meta-level.The question is not who is right, but why scholars and courts reach divergent results.Therefore, section 2 will distinguish three different approaches to the problem.Section 3 will then directly address the ethical foundation of international law. Three Different Approaches The Civilist Approach: Construing Legal RulesA series of scholars try to determine the limits of sovereign immunity by way of legal construction.They rely on accepted rules of international law which they apply to cases where a state has committed serious breaches of international human rights norms.This may be called a civilist approach.Some authors, for instance, contend that a state who violates fundamental human rights norms implicitly waives its immunity.6 Others apply the concept of 3 Isabelle Pingel, "L'immunité des États," in Tomuschat and Thouvenin, Fundamental Rules (n. 2), 239-48; Thomas Giegerich, "Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?," in Tomuschat and Thouvenin, Fundamental Rules (n. 2), 203-38.
Source: Brill | Nijhoff eBooks
Author: Robert Uerpmann-Wittzack
Institution: University of Regensburg
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W1496487512