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2022 | Book

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The Human Rights Challenge to Immunity in International Law

Author: Selman Özdan

Publisher: Springer International Publishing

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book focuses on the tension between the protection of human rights recognised as jus cogens (peremptory) norms, on the one hand, and the bestowal of immunity on the state and its representatives, on the other, to ascertain how these immunities can be eroded, if not fully abolished, to maintain full protection of jus cogens human rights under international law. The book argues that immunity should not equate to impunity when violations of jus cogens human rights are committed by States, Heads of State, or diplomatic agents. To make the case, the organic structures of the concepts of sovereignty and fundamental human rights are examined. Then, the human rights-based challenge to immunity is presented with respect to State, Head of State and diplomatic immunity, and the transition from a state-centric system to a human-centric system is explored. Jus cogens norms are at the centre of the impunity versus immunity debate.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
The development of international human rights as a distinct and unique field within the boundaries of public international law has become the significant and notable battleground regarding challenges to jurisdictional immunities. These challenges have appeared within the areas of State immunity, Head of State immunity, and diplomatic immunity. This book’s title is formulated to evoke a main research question: Does immunity equate to impunity when violations of fundamental human rights recognised as jus cogens norms (peremptory norms of general international law) are committed by States, Heads of State, and diplomatic agents?
Selman Özdan
Chapter 2. From a State-Oriented to a Human-Oriented Approach
Abstract
This chapter explores the concept of State sovereignty. It further demonstrates how international law imposes on States the obligation to protect fundamental human rights, and how the State-oriented approach has gradually given way to a human rights-oriented approach. Through analysis of the transition from Westphalian to post-Westphalian sovereignty and by a reappraisal of the relationship between State sovereignty and human rights, Chap. 2 considers the contradictions between State sovereignty and international law and provides a theoretical framework for immunities. Thus Chap. 2 provides and explains the link between State sovereignty and immunities.
Selman Özdan
Chapter 3. Human Rights Recognised as Jus Cogens
Abstract
This chapter examines fundamental human rights recognised as peremptory norms of general international law in order to set the foundation for the discussion of immunity versus impunity. Since this book focuses on the human rights-based challenge to immunities, it is necessary to extract these challenging and contentious human rights from customary international law, national law, legal sources, or international/legal authorities. To this end, the concept of human rights and its international legal aspects are explicated in this chapter. Then, the notion of jus cogens or peremptory norms of general international law is examined, paving the way for identifying those human rights that are recognised as jus cogens norms.
Selman Özdan
Chapter 4. State Immunity or State Impunity in Cases of Jus Cogens Violations
Abstract
This chapter conducts a general examination of State immunity under international law, charting its progress and explaining its rise within the international order, and offers new considerations as to the basis of State immunity. Additionally, it explores the transition from absolute to restrictive immunity with reference to the increasing tension between State immunity and human rights. It analyses the tension between the violation of certain human rights and the preservation of State immunity by considering a landmark judgement by the International Court of Justice (Jurisdictional Immunities of the State—Germany v. Italy). At the heart of this chapter lies a significant argument: State immunity (procedural rule) should not equate to State impunity when certain human rights recognised as jus cogens norms (substantive rule) are violated.
Selman Özdan
Chapter 5. A Critique of the Demise of Heads of State Immunity in the Age of Human Rights
Abstract
This chapter examines the principle of Head of State immunity. It explains the various types of Head of State immunity and considers the developments under customary international law in respect of the rules regarding such immunity. It subsequently analyses immunity and impunity for Heads of State when violations of jus cogens human rights are perpetrated. To engage with this discussion, it concentrates on the Pinochet Judgment for customary international law and the judgement of the International Court of Justice in Arrest Warrant of 11 April 2000 so as to criticise the issue of immunity in question. Finally, this chapter considers the question of whether Head of State immunity, in effect, means Head of State impunity in cases involving the violation of jus cogens human rights.
Selman Özdan
Chapter 6. Human Rights Versus Diplomatic Immunity
Abstract
This chapter explores the question of whether the immunity of diplomatic agents leads to impunity when they are responsible for violations of jus cogens human rights. The theoretical basis of diplomatic immunity, its historical development, and its codification process will be considered in the context of an evaluation of diplomatic law. By examining related cases and issues, this chapter considers whether or not diplomatic immunities breach jus cogens human rights. Abuses of such diplomatic immunities and privileges will also be discussed. It concludes by considering whether diplomatic immunity is superior to jus cogens human rights in the event of a conflict between the two norms; and asserts that absolute diplomatic immunity from legal proceedings is irreconcilable with international human rights law.
Selman Özdan
Chapter 7. Conclusion
Abstract
The Human Rights Challenge to Immunity in International Law has argued that in cases involving violations of jus cogens human rights, immunity should on no account amount to impunity. While there is as yet no settled conclusion to, or resolution of, the tension between immunity and fundamental human rights, the unjust benefits of immunity should be abolished in order to maintain and enhance human rights. The tension between immunity and jus cogens human rights cannot be resolved unless the distinction between immunity and impunity is clearly articulated.
Selman Özdan
Backmatter
Metadata
Title
The Human Rights Challenge to Immunity in International Law
Author
Selman Özdan
Copyright Year
2022
Electronic ISBN
978-3-030-92923-7
Print ISBN
978-3-030-92922-0
DOI
https://doi.org/10.1007/978-3-030-92923-7