Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means

Author: Tomonori, Mizushima

Source: Modern Law Review, Volume 71, Number 5, September 2008 , pp. 734-752(19)

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Abstract:

Granting immunity from suit to a foreign state or an international organisation, deprives the plaintiff of access to court and appears incompatible with the rule of law. Since the European Court of Human Rights judgment in Waite v Germany (1999), the availability of alternative means for dispute settlement has been emphasised in the context of international organisation immunity. However in the case of foreign state immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006). Likewise, foreign state immunity would be granted under the UN State Immunity Convention of 2004, regardless of whether there are alternative means. This Convention, rather than enhancing the rule of law, could lead to its attenuation. That several of these cases involve immunity in cases of torture sharpens their sensitivity.

Keywords: State Immunity; Public International Law; Right of Access to Court; Jones v Saudi Arabia [2006] UKHL 26; State Immunity Act 1978; United Nations State Immunity Convention

Document Type: Research article

DOI: http://dx.doi.org/10.1111/j.1468-2230.2008.00713.x

Affiliations: 1: Graduate School of Law, Nagoya University

Publication date: 2008-09-01