Chapter

State Immunity

Magdalena Forowicz

in The Reception of International Law in the European Court of Human Rights

Published in print August 2010 | ISBN: 9780199592678
Published online January 2011 | e-ISBN: 9780191595646 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199592678.003.0008

Series: International Courts and Tribunals Series

State Immunity

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This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.

Keywords: jus cogens; torture; erga omnes; State immunity; international legal rules; domestic law

Chapter.  15200 words. 

Subjects: Human Rights and Immigration

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