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Access to Court v State Immunity

Published online by Cambridge University Press:  17 January 2008


This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

Research Article
Copyright © British Institute of International and Comparative Law 2003

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1 McElhinney v Ireland, App no 31253/96, Judgement [GC], 21 Nov 2001. All ECHR documents referred to in the text are obtainable from the Court's web-site at <>.

2 Al-Adsani v UK, App no 35763/97, Judgment [GC], 21 Nov 2001.

3 Fogarty v UK, App no 37112/97, Judgment [GC], 21 Nov 2001.

4 The Court treated the three cases as a whole. They were held admissible on the same grounds and were tried by the same Grand Chamber. Also, a substantial part of the judgments is identical in content.

5 The three cases had been declared admissible on the ground that they raised questions of fact and law of such complexity that their determination depended on an examination of the merits, see McElhinney v Ireland and the UK, App no 31253/96, Decision as to Admissibility [GC], 9 Feb 2000; Al-Adsani v UK, App no 35763/97, Decision as to admissibility [GC], 1 Mar 2000; Fogarty v UK, App no 37112/97, Decision as to Admissibility [GC], 1 Mar 2000. McElhinney's application against the UK was declared inadmissible because of his failure to exhaust local remedies.

6 Art 6(1): ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

7 Para 44 (Al-Adsani), para 22 (Fogarty), para (McElhinney).

8 Para 21 (McElhinney).

9 The Court adverted to its previous judgment in Z and Others v UK, App no 29392/95, Judgment [GC], 10 May 2001, para 87.

10 The Court quoted its judgment in Fayed v UK, App no 17101/90, Judgment, 21 Sept 1994, para 65.

11 Paras 47–8 (Al-Adsani), para 26 (Fogarty), paras 24–5 (McElhinney). In Fogarty the UK also argued that the public nature of the posts for which Fogarty had applied excluded her claim from the ambit of Art 6(1). The Court chose to deal with the point in the context of its discussion of proportionality rather than as a preliminary consideration, paras 7–28 (Fogarty).

12 Para 52 (Al-Adsani), para 34 (Fogarty), para 33 (McElhinney). The Court found that ‘the procedural guarantees laid down in Art 6 concerning fairness, publicity and promptness would be meaningless in the absence of any protection for the pre-condition for the enjoyment of those guarantees, namely, access to court.’ The Court adverted to its judgment in the case of Golder v the United Kingdom, App no 4451/70, Judgment (Plenary Session), 21 Feb 1975, paras 28–36.

13 Para 53 (Al-Adsani), para 33 (Fogarty), para 34 (McElhinney).

14 Ibid. The Court quoted its judgment in the case of Waite and Kennedy v Germany, App no 26083/94, Judgment [GC], para 59.

15 Para 54 (Al-Adsani), para 34 (Fogarty), para 35 (McElhinney).

16 The Court adverted mutatis mutandis to its judgment in Loizidou v Turkey, App no 15318/89, Judgment [GC], 18 Dec 1996, para 43.

17 Para 55 (Al-Adsani), para 35 (Fogarty), para 36 (McElhinney).

18 Para 56 (Al-Adsani,)para 36 (Fogarty), para 37 (McElhinney).

19 Judge Loucaides dissented on the ground that the rules of State immunity could not be taken into consideration in interpreting the ECHR insofar as they did not reflect international jus cogens.

20 Para 37 (Fogarty).

21 Ibid.

22 Ibid, para 38. The Separate Concurring Opinion of Judges Caflisch, Costa, and Vajic put it very clearly: ‘while immunity is complete when it comes to selecting diplomatic and consular personnel, this may no longer be the case, in certain situations, once the individualconcerned has been hired.’

23 Para 38 (McElhinney). While the Court did not refer to specific instances of State practice, applicant had adverted to Art 11 of the European Convention of State Immunity (1972), Art 12 of the ILC Draft Articles on the Jurisdictional Immunities of State and Their Property (adopted in 1991), Art III(F) of the ILA's Revised Draft Articles for a Convention on State Immunity (1994) and a number of municipal instruments, notably the US Foreign Sovereign Immunities Act (1976), s 1605(a)(5); the UK Sovereign Immunities Act (1978), s 5; and the Australian FSIA, s 13. These provisions deny immunity for damage to persons or property caused by acts or omissions of organs of another State in the territory of the forum.

24 Ibid.

25 Ibid, para 40.

26 See n 5 above.

27 Para 39 (McElhinney).

28 The learned Judges adverted to the international and municipal instruments adverted to by the applicants, see n 23 above. With regard to Art 31 of the ECSI, which excludes acts of armed forces from the scope of the Convention, they opined that that particular provision does not reflect customary international law.

29 Criminal Justice Act 1988, s 134: ‘(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties. (2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if— (a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence— (i) of a public official; or (ii) of a person acting in an official capacity; and (b) the official or other person is performing or purporting to perform his official duties when he instigate the commission of the offence or consents to or acquiesces in it.’

30 Al-Adsani v Government of Kuwait and Others (ex parte) (Court of Appeal), 100 ILR 465. The High Court had denied leave to serve proceedings on Kuwait on the ground that the plaintiff had failed to show that Kuwait was not entitled to immunity.

31 Al-Adsani v Government of Kuwait and Others (Court of Appeal), 107 ILR 536, at 537–45 (per Stuart-Smith LJ.) and 546–50 (per Wart LJ).

32 State Immunity Act 1978, s 1(1): ‘A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.’

33 Ibid at 544–5 (per Stuart-Smith LJ) and 550–1 (per Ward LJ).

34 The applicant also alleged that the UK had violated his right not to be subjected to torture (Art 3) and his concomitant right to an effective remedy (Art 13). The claim was rejected unanimously. The Court agreed that by virtue of these two provisions, ‘States are required to take certain measures’ including the conduct of a ‘thorough and effective investigation’, ‘to ensure the individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment’. However, it was held that Arts 3 and 13 establish those obligations only in respect of offences occurring within the jurisdiction of a State party and do not generally require States parties to provide a remedy for torture committed outside their jurisdiction, judgment, paras 38–9. In the same vein, the Court noted that the applicant's Art 3 complaint could not draw much support from the Court's judgment in Soering v UK, App no 14038/88, judgment (Plenary Session), 26 June 1989, para 91. On the on hand, the Court affirmed that Art 3 has some extraterritorial application, especially in cases where a person is expelled by a State party even though there are ‘substantial grounds for believing that the person concerned, if expelled, faced a real risk of being subjected to torture or to inhuman and degrading treatment or punishment in the receiving country’. On the other hand, it was pointed out that a State party would incur liability in such circumstances ‘by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment’, judgment, para 39. The Court eventually found that there had been no violation of Art 3, since the applicant did not claim that he had suffered torture in the UK or that the latter had any causal connection with his predicament in Kuwait.

35 Para 57 (Al-Adsani).

36 Ibid, para 60. The Court mentioned Art 5 of the Universal Declaration of Human Rights, Art 7 of the International Covenant on Civil and Political Rights and Art 2 of the CAT.

37 CAT, Art 4. The Court adverted to the judgment of the ICTY in Prosecutor v Furundzija, Case no IT-95–17/I-T, judgment of 10 Dec 1998, 38 ILM (1999) 317 and that of the UK House of Lords in Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 3), judgment of 24 Mar 1999 [2000] AC 147.

38 Para 61 (Al-Adsani).

39 Ibid, para 62.

40 28 USCA §1605(a)(7): ‘(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—(7) … in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources … for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office employment, or agency, except —(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 USC App 2405(j)) or s 620A of the Foreign Assistance Act of 1961 (22 USC 2371) at the time the act occurred, unless later so designated as a result of such act or the act is related to case Number 1:00CVM03110(EGS) in the United States District Court for the District of Columbia [the reference is to Flatow v the Islamic Republic of Iran and others, 76 F Supp 2d 16 at 18 (1999)] and (B) even if the foreign state is or was so designated, if—(i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United States (as that term is defined in s 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred’. The exception in s 1605(a)(7) was introduced by s 221 of the Anti-Terrorism and Effective Death Penalty Act 1996. A concise account of this development is given by the Court of Appeals for the District of Columbia in Price v Socialist People's Libyan Arab Jamahiriya, 294 F 3d 82 at 87—90 (28 June 2002). See also Glannon, JW and Atik, J, ‘Politics and Personal Jurisdiction: Suing State Sponsors of Terrorism Under the 1996 Amendments to the Foreign Sovereign Immunities Act’, 87 Georgetown LJ (1999) 675;Google ScholarCaplan, LM, ‘The Constitution and Jurisdiction over Foreign States the 1996 Amendment to the Foreign Sovereign Immunities Act in Perspective’, 41 Va J IL (2001) 369.Google Scholar

41 Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 3), House of Lords, judgment of 24 Mar 1999 [2000] AC 147.

42 Para 64 (Al-Adsani). The Court adverted to the judgment of the District Court of the District of Columbia in Flatow, n 40. While the Court's assessment of US law still holds true in practical terms, the authority of Flatow regarding attachment and execution against property of third States used for government purposes is now dated. A series of subsequent amendments to USC § 1610(f) and Presidential Determinations made thereafter have prompted some further developments: as the 1996 amendment did not address issues of execution and attachment, in 1998 Congress decided to pass a further amendment (under s 117 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act 1999) to allow enforcement against property of a third State used for governmental purposes in cases where US courts had jurisdiction under sec 1605(a)(7). Section 117(d) of the 1998 amendment gave discretion to President ot waive ‘the requirements’ of the section in the interest of national security. As soon as the 1998 amendment was made law on 21 Oct 1998, President Clinton issued Presidential Determination 99–1 and waived the 1998 amendment in its entirety, ie, including the provisions relating to attachment and execution against property of third States used for governmental purposes (a statement of reasons for the waiver can be found in 93 AJIL (1999) 185). However, in Alejandre v Republic of Cuba et al, 42 F Supp 2nd 1317 the District Court for the State of Florida found that the President's waiver of the entire 1998 amendment was contrary to the purpose of the amendment and therefore no obstacle to enforcement according to the revised s 1610(f) (Alejandre was later vacated and remanded on different grounds, Alejandre v Telefonica Larga Distancia de Puerto Rico Inc. et al. (Court of Appeals—11th Circuit), 183 F 3d 1277. The Court of Appeals expressed no opinion on the validity of the President's waiver). Following the Alejandre ruling, in 2000 Congress passed a further amendment to s 1610(f), now giving express authority to the President to waive enforcement against property of third States used for governmental purposes, as provided in the revised s 1610(f)(1). On 28 Oct 2000 the President once more waived s 1610(f)(1) in the interests of national security.

43 Especially per Lord Millett, n 39, 278. The House of Lords had cited with approval the judgment of the Court of Appeal in Al-Adsani.

44 Para 66 (Al-Adsani). Judge Zupancic and Judges Pellonpää and Bratza appended concurring opinions. Judge Zupancic considered that the CAT was not intended to override the rules of State immunity. Judges Pellonpää and Bratza considered the far-reaching consequences of the exercise of jurisdiction against foreign States for extra-territorial torture and noted the difficulties regarding issues for proof and execution. In the latter respect, they adverted to the suspension by President Clinton of the 1998 amendment to the FSIA that which allowed enforcement against foreign State property used for governmental purposes. See n 41 above.

45 The application of the doctrine of absolute immunity by national courts is a well-known case in point. For example, in Ramos et al v United States, The Lisbon Court of First Instance held that ‘foreign States are immune from jurisdiction unless they expressly or implicitly but always unequivocally, waive immunity. Such waiver cannot be presumed. Immunity exists as regards both acts of foreign States performed jure imperii and also acts performed under private law’, 87 ILR 29 at 34–5. Such decisions would seem to give immunity as scope wider than currently accepted in general international law. The blanket immunity from execution granted to foreign central banks under UK law [s 14(4) of the SIA 1978] provides a further example in that respect. The current rule of international law seems to be that property of foreign States used for commercial purposes may be subject to attachment and execution, see Art 18 of the ILC Draft Articles on the Jurisdictional Immunities of States and Their Property, esp. Seventh Report of the Special Second Report of the Special Rapporteur, Mr Motoo Ogiso, Yearbook of the ILC (1989), vol II (Part One), 64, para 43.

46 The submission of the UK in Al-Adsani put this in rather clear terms. In the words of the Court, the UK claimed that ‘Article 6 could not extend to matters outside the State's jurisdiction, and that as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’, Judgment, para 44. The respondents’ submissions in Fogarty and McElhinney are arguably less clear. In Fogarty, the UK submitted that ‘Article 6 § 1 of the Convention did not apply, because the applicant had no actionable domestic claim. The principle of sovereign immunity removed the dispute from the competence of the national courts, which could not assert jurisdiction over the internal affairs of foreign diplomatic mission’, Judgment, para 22. Whereas in Al-Adsani the UK submission seemed to focus on the general relation between the Convention and the law of State immunity, in Fogarty more emphasis was placed on the actionability of the applicant's domestic claim. On the other hand, a legitimate restriction of the right of access to court, as laid down in the Court's jurisprudence. Ireland argued that ‘the limitation on the applicant's right of access to court had a legitimate objective’ and that ‘Ireland was entitled to a margin of appreciation’, Judgment, para 28.

47 Holland v Lampen-Wolfe, [2000] 3 All ER 808 at 846–7 (emphasis added). Cf the decision the Eruopean Commission of Human Rights in the case of N (et al) v Italy, App No 24236/94, Decision of 4 Dec 1995: ‘the right of access to court does not require that courts shall have unlimited jurisdiction; in particular, Art 6 of the Convention should be interpreted with due regard to parliamentary and diplomatic immunities as traditionally recognized: in such cases, the defendant is inaccessible and it is for the domestic court to apply the corresponding limitation of its jurisdiction’. See also Council of Europe, Art 6 of the European Convention on Human Rights: the right to a fair trial, Human Rights files No 13, Council of Europe Press (1994), 30–1.

48 Para 47 (Al-Adsani), para 26 (Fogarty) para 24 (McElhinney).

49 Art 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ The failure of the Court to address the applicability of the Convention as a whole is even more bewildering if one considers the particular subject-matter of the three applications, namely the extent of national jurisdiction over third States. The Court's view is not unique, though. A recent monograph devotes the best part of a chapter to the relation between the ECHR and the law of State immunity without making a single mention of Art 1, Bröhmer, J, State Immunity and the Violation of Human Rights (The Hague: Kluwer, 1997), ch 3, 143–88.Google Scholar

50 This view seems to have found favour with the European Commission on Human Rights in the case of Spaans v Netherlands, App no 12516/86, Decision, 3 Nov 1986. The applicants, a former employee of the Iran-US Claims Tribunal, alleged that in granting immunity from suit to the Tribunal the Netherlands had violated his right of access to court. The Commission found the application inadmissible, holding that the administrative decisions of the Tribunal were not acts the occurred ‘within the jurisdiction’ of the Netherlands in the meaning of Art 1.

51 Bankpvič and Other v Belgium and 16 Other Contracting States, App no 52207/99, Decision as to Admissibility [GC], 12 Dec 2001 paras 57, 59–62; Loizidou v Turkey, App No 15318/89, Judgment [GC], 28 Nov 1996, para 43.

52 Eg, Matthews v UK, App no 24833/94, Judgment [GC], 18 Feb 1999, 29–35; Loizidou v Turkey, App no 15318/89, Decision as to Admissibility [GC], 23 Mar 1995 paras 62–4.

53 Cf Waite and Kennedy v Germany, App no 26083/94, Judgment [GC], 3 Feb 1999, para 59.

54 Eg, Gillow v UK, App no 9063/80, Judgment, 23 Oct 1986, paras 53–4; Campbell v UK, App no 13590/88, judgement, 28 Feb 1993, pars 39–41; Vogt v Germany, App no 17851/91, judgement [GC], 2 Sept 1995, paras 49–51; Barthold v Germancy, App no 8734/79, Judgment, 25 Feb 1985, para 51; Müller and Others v Switzerland, App no 10737/84, Judgment, 28 Apr 1988, para 30.

55 Para 54 (Al-Adsani), para 34 (Fogarty), para 35 (McElhinney).

56 Here the Court relied substantially on its findings in Waite and Kennedy v Germany, n 14 above. In that judgment, the Court held: ‘To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in matters [for which the organization enjoys immunity] would, in the Court's view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation.’ The passage construes the granting of immunities to foreign States as a question of policy in even clearer terms.

57 The International Law Commission has pointedly noted that ‘[p]rivileges and immunities constitute a right not a courtesy’, Fourth Report on the Relations between States and International Organisations, UN Doc A/CN 4/424 (24 Apr 1989), Yearbook of the ILC (1989), vol (Part One), 160.

58 Eg, McElhinney, para 34.

59 Cf. Soering v UK, App no 14038/88, Judgment (Plenary Session), 26 June 1989, para 89: ‘inherent in the whole of the Convention is a search for fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.’ See also Harris, DJ, O'Boyle, M, and Warbrick, C, Law of the European Convention on Human Rights (London: Butterworths, 1995), 1112.Google Scholar

60 This does not preclude the possibility that a measure might be proportionate under the Convention even though there are no reasonable alternative ways to pursue the legitimate aim involved, James and Others v UK, App no 8793/79, Judgment (Plenary Session), 22 Jan 1986, para 51.

61 The Court pointed out that the applicant had voluntarily foregone the possibility of bringing an action in Northern Ireland against the UK Secretary of State for Defence, Judgment, para 39. The relevance of this points is questionable. It is certainly true that any person who lodges a claim against a State before foreign courts might alternatively pursue that claim in the courts of the defendant State. But this seems totally beside the point in respect of the duty of the State of the forum to provide access to its courts—whatever the extent of that duty. Here the judgment appears to have been influenced by some special circumstances noted in the Irish submission, namely that ‘the courts in Northern Ireland were easily accessible to the applicant [and that] the relevant law was substantially identical to that in Ireland’, Judgment, para 29. Still the judgment itself did not advert to such special reasons. It merely noted that ‘there was no bar to an action in Northern Ireland’, Judgment, para 39. One wonders whether the Court would have taken this into account if the foreign organ involved was, eg, Australian.

62 The minority Judges in McElhinney and Al-Adsani were quick to seize on that point, See especially the opinion of Judge Rozakis in McElhinney.

63 The contrast with the Court's judgment in Waite and Kennedy v Germany, n 14 above, is startling to say the least. There the Court found that ‘a material factor in determining whether granting ESA immunity from German jurisdiction is permissible is whether applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’, Judgment, para 68.

64 The UK practice of according blanket immunity from execution to foreign central banks would appear suspect from that point of view, see n 45.

65 For a thorough discussion of the issues pertaining to State immunity in respect of employment disputes see Fox, H., ‘Employment Contracts as Exception to State Immunity: Is All Public Service Immune?’, 66 BYIL (1997) 97.Google Scholar

66 ECSI, Art 31: ‘Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State’ It should also be noted that the Convention has not been very popular with members of the Council of Europe, having so far attracted only eight ratifications.

67 While there are indications that exceptions from immunity in the ILC Draft Articles are meant to apply in respect of acts of members of a State's armed forces too (see esp Art 1(b)(iv) of the Draft Articles), there is strong support for the view that the ambit of art 12 is limited to everyday torts, notably traffic accidents, see the Proposal of the Drafting Committee on a Second Reading, Yearbook of the ILC (1990), vol I, 288, at 314, para 74 and the Report to the General Assembly on the 42nd session of the ILC, Yearbook of the ILC (1990), vol II Part Two, 36, para 190. It must be borne in mind, though, that both views derive from work in progress.

68 Yearbook of the ILC (1983), vol II (Part One), para 68 (italics added).

69 Yearbook of the ILC (1990), vol II (Part One), 14. Art 12 still elicits strong reactions in some quarters. As late as 2000 the Pakistani delegation observed: ‘The dilution of State immunity in respect of claims for pecuniary compensation for death or injury to the person, or damage to or loss of tangible property … would cause a great deal of friction between some developed countries where there is a strong tradition in tort litigation and developing countries. Moreover, the provision makes no distinction between acta jure imperii and acta jure gestionis. It should there-fore be deleted in order to make the draft Convention acceptable to majority of States’, Fifty-Fifth Session (2000), UN Doc A/55/298, 11, para 3–4.

70 McElhinney v Williams (Supreme Court of Ireland), judgment of 15 Dec 1995, 104 ILR 691 at 700–3

71 [2000] 3 All ER 808, at 837–40 (per Lord Clyde) and 843–5 (per Lord Millett).

72 Unreported, see I Bantekas and M Gavouneli, Case Note, 95 AJIL (2001) 198. The Greek applies in respect of criminal acts that are not part of the conflict.

73 LF & HMHK v Germany, 94 ILR 342, at 347 (1986). Dutch practice is all the more important because the Netherlands later became party to the ECSI.

74 I am grateful to Ms Rukhsana Ali (UCL) for the comments on an earlier draft of this section.

75 See generally Sztucki, J, Jus Cogens and the Vienna convention on the Law of Treaties: A Critical Appraisal (Wien; New York: Springer-Verlag, 1974);CrossRefGoogle ScholarRozakis, Ch, The Concept of Jus Cogens in the Law of Treaties (Amsterdam; Oxford: North Holland Pub, 1976);Google ScholarHannikainen, L, Peremptroy Norms (Jus Cogens) and International Law: Historical development, Criteria, Present Status (Helsinki: Finnish Lawyers Pub Co, 1989);Google ScholarRao, N, ‘Jus Cogens and the Vienna Convention on the Law of Treaties’, 14 Ind YIL (1974) 362;Google ScholarDanilenko, G, ‘International Jus Cogens: Issues of Law-Making’, 2 EJIL (1991) 42;CrossRefGoogle ScholarByers, M, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’, 66 Nordic JILL (1997) 211.Google Scholar Among writings predating the Vienna Convention, see Verdross, A, ‘Jus Dispositivum and Jus Cognes in International Law’, 60 AJIL (1966) 55;CrossRefGoogle ScholarSchwelb, E, ‘Some Aspects of International Jus Cogens as Formulated by the International Law Commission’, 61 AJIL (1967) 946.CrossRefGoogle Scholar

76 The 1960 Treaty of Guarantee of Cyprus, Art IV of which provided for a right of unilateral intervention on the part of the Guarantor States (Greece, Turkey, and the UK) is sometimes considered a case in point, although no Party has declared either the whole Treaty or Art IV to be invalid or terminated on grounds of conflict with jus cogens, see M Mendelson, Opinion on the Application of the Republic of Cyprus to Join the European Union, 59–60, paras 84–5 obtainable (together with Professor Mendelson's Further Opinion on the matter) at <>.

77 Cf. Art 6 of the Charter of the International Military Tribunal at Nuremberg, Arts 1–7 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, Arts 1–6 of the International Criminal Tribunal for Rwanda and Arts 5–8 of the 1998 Rome Statute of the International Criminal Court.

78 See CAT Art 4(1): ‘Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt torture and to an act by any person which constitutes complicity or participation in torture.’

79 CAT, Art 7(1).

80 CAT, Art 5: ‘1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article. 3. This Convention dose not exclude any criminal jurisdiction exercised in accordance with internal law.’

81 Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 3), House of Lords, Judgment of 24 Mar 1999 [2000] AC 147.

82 Cf. the recent judgment of the International Court of Justice in the Case Concerning the Arrest Warrant of 11 April 2000 (Congo v Belgium), Judgment. 14 Feb 2002. para 58, obtainable from the Court's web-site at <>.

83 The full passage reads: ‘The basic characteristic of a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory norm. … The acceptance therefore of the jus cogens nature of the prohibition of torture entails that State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions.’

84 The minority Judges noted that ‘the majority, while accepting that the rule on the prohibition of torture is a jus cogens norm, refuse to draw the consequences of such acceptance’.

85 The logical distinction between end-result and justification is a particular aspect of the distinction between rules and principles of law, see Dworkin, R, Taking Rights Seriously (London: Duckworth, 1977), ch 2, 22–8;Google ScholarPubMedSimmonds, NE, Central Issues in Jurisprudence: Justice, Law and Rights (London: Sweet & Maxwell, 1986), ch 6, 97113. For a critique of the distinction seeGoogle ScholarMacCormick, N, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), 153–94.Google Scholar

86 This seems to explain why the minority's assertion that the prohibition of torture overrides the law of State immunity looked impossibly broad to accept as a plausible end-result, as was pointed out in the Concurring Opinion of Judge Pellonpää, joined by Judge Bratza.

87 This questionable is also reflected in part of the literature regarding the relation between the prohibition of torture and the law of State immunity. Once recent comment on the judgment of the English Court of Appeal in Al-Adsani reads: ‘It is … widely accepted that jus cogens rules are rules of customary international law which have effects additional to those identified in the 1969 Vienna Convention on the Law of Treaties. English courts, when dealing with questions in respect of which the legislator has not spoken, should therefore take into account the development of the concept of jus cogens and the fact that certain rules of customary international law now possess a jus cogens character. In cases involving torture outside the UK, the jus cogens character of the prohibition against torture may have rendered void any rule of customary international law which might otherwise have required English courts, when applying the common law of State immunity, to grant immunity to foreign States’, Byers, M, 67 BYIL (1996) 539–40;Google ScholarBianchi, A, ‘Immunity versus Human Rights: the Pinochet case10 EJIL (1999) 237, at 265.CrossRefGoogle Scholar Neither commentator explains how the claim of foreign State to immunity collides with the prohibition of torture.

88 See above, 8.

89 The question was comprehensively discussed in the Separate Opinion of Judges Higgins Kooijmans, and Buergenthal in the Arrest Warrant case, n 78 above, 5–10, paras 19–41, obtainable from the Court's web-site at <>. The learned Judges concluded that States do not have a general obligation to exercise extra-territorial jurisdiction over acts recognized to constitute international crimes.

90 CAT, Preamble.

91 It should perhaps be noted that reference to Art 6 ECHR would be ill-suited to the purposes of the present section. The point here is to show that access to court is a corollary of the peremptory prohibition of torture, not that the respondent State in Al-Adsani had a treaty obligation to provide such access.

92 ‘Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity form civil suit in the courts of another State where acts of torture are alleged’, Judgment, para 61.

93 This would appear to set Al-Adsani from McElhinney, where the minority was not able to provide more than a nominal footing for its opinion in State practice.

94 In addition to the materials cited in the Judgment, para 60, the minority adverted to the Statutes of the ad hoc Tribunals for [sic] Former Yugoslavia and Rwanda, the Statute of the International Criminal Court and, as an example of judicial practice, to the judgment of the Swiss Federal Tribunal in the case of Seber c. Ministère public de la Conféduration et Départment fédéral de justice et police, 109 AFT Ib 64 at 72.

95 The argument here adverts to the idea of State sovereignty in the ‘external’ sense, ie, as absence of superior political power or legal authority exercised on the State from without. For the distinction between internal and external sovereignty see MacCormick, N, Questioning Sovvereignty: Law State and Practical Reason (Oxford: OUP, 1999), 129–31.CrossRefGoogle Scholar

96 Bröhmer, J, State Immunity and the Violation of Human Rights (The Hague: Kluwer, 1997), 914;Google ScholarLauterpacht, H, ‘Foreign State Immunity: Emerging Consensus on Principles’, 200 Recueil des Cours (1986-V), 235, at 252 ff.;Google ScholarJohnson, DHN, ‘The Puzzle of Sovereign Immuntiy’, 6 Australian YIL (1974–5), 1 at 5–8.Google Scholar

97 Cf the important decision of the Hague Court of Appeal in the case of Republic of Zaire v Duclaux (1988), 94 ILR 368, at 369. Duclaux had petitioned for the Republic of Zaire to be declared bankrupt under Dutch law for its failure to pay him 6 months’ arrears of wages. The Court of Appeal, overturning a decision by the District Court, held: ‘It cannot be denied that if a Dutch court were to declare a sovereign State (which has an embassy or a diplomatic mission in the Netherlands) bankrupt, as the Court of first instance did to the Republic of Zaire, this would in no small measure impede the efficient performance of the functions of that State's official diplomatic representation in the Netherlands. … Since such a bankruptcy would therefore entail a by no means insubstantial infringement of the independence of the sending State vis-à-vis the receiving State, given that, at the very minimum, the diplomatic mission would not be able to function properly, the sending State can, under the generally recognized rules of international law, invoke its immunity from execution in proceedings before a court in the receiving State.’

98 Cf The SS Lotus, PCIJ, Ser A, No 10 (1972), 18: ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’ Weil, P, ‘Towards Relative Normativity in International Law?’, 77 AJIL (1983) 413, at 441 at para 41 draws specific attention to the egalitarian current underlying the Lotus principle.CrossRefGoogle Scholar

99 ‘The Prohibition of torture, being a rule [sic] of jus cogens, acts in the international sphere and deprives the rule of sovereign immunity of all its legal effects in that sphere’, Dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajic (emphasis added).

100 Constraints of space do not permit consideration of further alternative. A number of contemporary philosophers believe that the only way to avoid an impasse when an agent's two genuinely held values collide is to reconsider the reconsider the stakes of the conflict. Our whole discussion so far, they argue, has assumed that such values are objective, that they have truth-values that do not depend of what any single international actor or group of actors might believe. Such reliance on objectivity, the argument runs, has saddled us with an irreconcilable conflict of equally legitimate claims, for we cannot uphold either of those values without feeling genuine regret for not having lived up to the other. But if for every ‘objective’ value that we consider ourselves to have our intuition exercises an equally strong pull to the other direction, it makes little sense to claim objective truth for any of our values in the first place. We may still argue with undiminished conviction that some values are true and others are false, but we should not suppose that our arguments are better than others because they are ‘objectively true’, see especially Mackie, JL, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin, 1977), ch 1, 1548;Google ScholarWilliams, B, Morality (Cambridge: CUP, 1972), 1319, 27–39. Although this commentator does not share this view, the main text has not provided any argument against it. Suffice it to point out that an argument against the possibility of objectivity would have to be very peculiar indeed, if only because it would necessarily have to avoid claiming that its own submission is true.Google ScholarPubMed

101 Rawls, J, A Theory of Justice rev edn (Oxford: OUP, 1999), § 4, 1719.Google Scholar

102 Cf Arrest Warrant case, Separate Opinion of Judges Higgins, Kooijmans and Buergenthal n 78 above, para 75, 18. In discussing the relation between the immunity of high State officials and peremptory norms of international criminal law, the learned Judges noted: ‘These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other, there is the interest of the community of States to allow them to act freely on the inter-State level without unwarranted interference. A balance must therefore be struck between the two sets of functions which are both valued by the international community.’

103 Ibid, para 75, 18: ‘[W]hat is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution. The weights of the two scales are not set in all perpetuity’.