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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?

Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?

(p.227) 18 Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?
Realizing Utopia

Paola Gaeta

Oxford University Press

The international legal order lacks a universal and compulsory system for enforcing international responsibility, and therefore the role that domestic courts play in this regard is crucial. The various facets of the doctrine of international immunities, however, can make the domestic judicial system unavailable in cases of claims against foreign states and (former or sitting) foreign state officials. The application of this doctrine to domestic claims concerning egregious violations of human rights has given rise to controversy. As for foreign state immunity, it has been argued that the jus cogens nature of international rules protecting human rights should prevail over those granting immunities. As for personal immunities, international customary law does not seem to provide for an exception to their applicability in cases of serious violations of human rights amounting to international crimes. It is, however, argued that, de lege lata, there can be cases where domestic courts can refuse to apply the rules on personal immunities in order to avoid a denial of justice. Finally, with regard to functional immunities, the general contention is made that they do not apply for domestic claims concerning international crimes. Nonetheless it would be wrong to consider that this constitutes a derogation from, or an exception to, the customary rules of international law on functional immunities.

Keywords:   international law, human rights, jus cogens, domestic courts, international responsibility, immunity

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