Document Type : Article
Authors
1 Phd Candidate of International Law, Payam Noor University(PNU), Department of Theology and Islamic Sciences, Tehran, Iran
2 Prof, Allameh Tabatabai University, Faculty of Law and Political Science, Tehran, Iran
3 Assistant Prof, Payam Noor University, Tehran, Iran
Abstract
Under the general rule of state immunity, each state is obliged to avoid exercising jurisdiction over the actions and property of other states. In the scholarly works and case law, state immunity is often seen as a manifestation of the principle of equality of states. Today, however, this principle is violated by lawsuits and enforcement of judicial decisions against foreign governments in domestic courts of some states, on one hand, and implementation of laws restricting state immunity in the context of transnational torts in some countries such as the United States and Canada, On the other. The European Court of Human Right (ECHR) explicitly affirmed the principle of state immunity as a general rule of international law although the principle has been challenged in the courts of some European countries such as Greece and Italy. This paper aims to analyze the effects of the case law of the ECHR as well as the domestic courts of European states, on the state immunity rule in the context of transnational torts.
Keywords
- A) books
- Abdolahi, Mohsen (2014), International Terrorism as New Exception of State's Immunity Rule, Proceedings of Seminar on Immunity in International Law, Ganjedanesh published (In Persian).
- Abdolahi, Mohsen, & Shafe, Mirshahbiz (2002), State's Immunity in International Law, Tehran, Law and regulations Porial of Iran (In Persian).
- Bakentas, Ilis & Susan Nask,(2003), International Criminal Law, London, Cavandish
- Brownlie, Ian (2008), Principles of Public International Law, Seventh Edition, Great Britain, Oxford University Press.
- Cassese, Antonio, (2005) International Law, Great Britain, Oxford University Press.
- Emberland ,Marius,(2002) McElhinney v. Ireland, Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, The American Journal of International Law, Vol. 96, No. 3, Jul., Published by: American Society of International Law; Cambridge University Press.
- Heller , Kevin Jon and Simpson, Gerry,(2013) The Hidden Histories of War Crimes Trials, Published By :Oxford University Press,
- Kloth, Mathios, (2010) Immunities and The Right of Access to Court under Article 6 of The European Convention on Human Rights, Boston , Martinus Nijhoff Publishers.
- Murphy, Sean D,( 2006) Principles of International Law, United States of America, Thomson/West.
- Scherr, Daniel,(2012) Jurisdictional Immunities of the State ( Germany v. Italy: Greece Intervening) A Case Note, New Zealand Yearbook of International Law, Vol 10.
- Trooboff, P.D,,(1987)Foreign State Immunity: Emerging Consensus on Principle, R.D.C. , Dordrecht/ Boston/Lancaster, Martinus Nijhoff Publishers.
- B) Articles
- Abdolahi, Mohsen & Khandan kochaki, Jamal (2016), “Terrorism Exceptions in Iran's, United States'& Canada's Immunity Acts”, Legal Research Journal, No.77 (In Persian).
- Azizi, Satar (2011), “The Domain of Tort Exception in States Immunity Law in Light of Competence Immunity Judgment of 2012”, Comparative Law Journal, The Period 3, N.2, N.N 100 (In Persian).
- Bianchi, Andrea, (2013) “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens beyond Germany v. Italy”, Journal of International Dispute Settlement, Vol. 4, No. 3.
- Ciampi,Annalisa, (2009) “The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case Relating to the Second World War: The Civitella Case”, Journal of International Criminal Justice, Vol. 7, Issue 3.
- Gaukrodger, David (2010), “Foreign State Immunity and Foreign Government Controlled Investors”, OECD Working Papers on International Investment, 2010/02, OECD Publishing, http://dx.doi.org/10.1787/5km91p0ksqs7-en.
- Kadkhodai, Abaas,& Abedini, Abdolah (2014), “State's Immunity and Jus Cogens”, Public Law Studies Journal, , The Period 45, N.1.
- KHezri, S.Morteza ( 2011), “State's Immunity in Perspective of International Law” , Legal Thoughs' Research Journal, N.3 (In Persian).
- M. Gavouneli & I. Bantekas,( 2001) “Prefecture of Voiotia v. Federal Republic of Germany.Case No.11/2000”,The American Journal of International Law, Vol. 95, No.1.
- Momtaz, Jamshid, & Motevasel, Sirus (2015),”Right of Proceeding in European Convention on Human Rights”, Public Law Studies Journal, The Period 46, N.4 (In Persian).
- Reece Thomas, Katherine, & Joan Small (2002) “ Human Rights and State Immunity: Is There Immunity Form Civil Liability for Torture”, Netherlands International Law Review.
- Shahlai, Faraz (2014), “A Real Legal Contest: Italy v. International Court of justice”, Legal Research Journal, No.27 (In Persian).
- Tarre Moser, Patricia (2012) “Recognition of State Immunity as a Judicial Countermeasure to Jus Cogens Violations: The Human Rights Answer to the ICJ Decision on the Ferrini Case” , Goettingen Journal of International Law 4.
- C) Cases
- Al-adsani v. the United Kingdom, No. 35763/97, The European Court of Human Right( ECtHR) 2001-x1.
- McELHINNEY v. IRELAND AND THE UNITED KINGDOM, no. 31253/96, European Court of Human Rights( ECTHR -Grand Chamber), Decision of 09.02.2000/.
- Fogarty v. United Kingdom (Application no. 37112/97) , European Court of Human Rights ,Date of Decision: 21 November 2001, http://hudoc. echr.coe.int/eng# {"dmdocnumber":["697763"],"itemid":["001-59886"]}.
)