Public Law Studies Quarterly

State Immunity in Transnational Torts:The Case Law of the European Court of Human Rights and the Inconsistent Practice of Several European States

Document Type : Article

Authors

Seyede Neda Mirfalah Nasiri 1
seyed Ghasem Zamani 2
Hatam Sadeghi Ziyazi 3
Ali Tavakoli Tabasi 3

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

https://doi.org/10.22059/jplsq.2018.253412.1690
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

state immunity
tort
absolute immunity
the Al-Adsani case
the McElhinney case
the Kalogeropoulos case
the Civitella Case
the Ferrini case
the European Court of Human Right (ECtHR)
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  2. 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).
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  1. B) Articles
  2. Abdolahi, Mohsen & Khandan kochaki, Jamal (2016), “Terrorism Exceptions in Iran's, United States'& Canada's Immunity Acts”, Legal Research Journal, No.77 (In Persian).
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  1. C) Cases
  2. Al-adsani v. the United Kingdom, No. 35763/97, The European Court of Human Right( ECtHR) 2001-x1.
  3. McELHINNEY v. IRELAND AND THE UNITED KINGDOM, no. 31253/96, European Court of Human Rights( ECTHR -Grand Chamber), Decision of 09.02.2000/.
  4. 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"]}.
Public Law Studies Quarterly
Volume 52, Issue 1
Spring 2022
Spring 2022
Pages 49-68

  • Receive Date 25 February 2018
  • Revise Date 19 May 2018
  • Accept Date 14 July 2018

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