CEU Electronic Theses and Dissertations, 2014
| Author | Bulatov, Alexey |
|---|---|
| Title | THE ALLEGED POSSIBILITY OF STATE IMMUITY WAIVER FOR BREACH OF JUS COGENS HUMAN RIGHTS RULES BY ACTS JURE IMPERII |
| Summary | This thesis will consider the doctrine of state immunity for acts jure imperii and its application in situations in situations where grave human rights breaches have taken place. In the wake of new international law developments on this issue I will reassess the existing understanding of the doctrine of state immunity and will look into a possibility to restrict a foreign state’s immunity unilaterally by a forum state. Additionally I will consider some alternative ways for victims to obtain remedy in situation where it is impossible to bar the perpetrator from enjoying its sovereign immunity. The research mainly focuses on the analysis of a case law of international and domestic tribunals. Recent International Court of Justice decision on the Jurisdictional Immunities case has devaluated a number of approaches to the issue at stake. Arguments that are still applicable are developed by tribunals and are still to find their way into scholastic papers. The research shows that international law has not yet recognize a right of a forum state to restrict foreign state’s immunity due to the fact that the latter has violated human rights law norm even of a jus cogens character. Single examples of such restrictions in a state practice are not spread enough to satisfy the criteria of customary international law. There are some promising arguments that may develop into a positive norm of international law at some point. Unfortunately, this does not seem to take place any time in the near future. Where the perpetrator is reluctant to provide remedy for victims, the only way is to resort to diplomatic measures. Individuals have little rights and possibilities to influence foreign states and bring impunity to an end. It is the task of their national states to assist them. Even though a decision to provide diplomatic protection is a matter of political will of a state, its nationals have some legitimate expectations and in most of the cases these decisions are positive. |
| Supervisor | O'Keefe, Roger |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2014/bulatov_alexey.pdf |
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