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From Bilateralism to Community InterestEssays in Honour of Bruno Simma$
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Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder

Print publication date: 2011

Print ISBN-13: 9780199588817

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199588817.001.0001

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Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights

Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights

Chapter:
(p.825) Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights
Source:
From Bilateralism to Community Interest
Author(s):

Enzo Cannizzaro (Contributor Webpage)

Beatrice I Bonafé

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588817.003.0052

The relationship between the legal regime of sovereign immunity and international human rights law has been quite a hot topic in recent years. Not infrequently, domestic courts have been requested to lift sovereign immunity and to determine civil or criminal consequences of conduct allegedly in breach of international rules protecting fundamental values. These requests have prompted a conspicuous, yet not always fully consistent, pattern of case law and an endless scholarly debate. The traditional view tends to maintain that sovereign immunity is expressed by procedural rules, and that therefore such rules are structurally of such a nature as to preclude conflicts with rules prohibiting egregious violations of human rights, which are substantive law by nature. At the other end of the spectrum, some authors have argued that rules granting immunity have the effect of preventing fundamental human rights law from attaining its full effect. Consequently, it is argued, rules of immunity ought to be disregarded on the basis of the superior rank of rules protecting such rights. An infinite variety of intermediate opinions have also been expressed, highlighting either the traditional inter-State character inspiring the rules on immunity, or the universal character of the emerging law of human rights. This chapter analyzes this topic from a particular methodological angle. It maintains that the difficulty in dealing with that issue mainly lies in the asymmetry in the development of the international law of human rights which has created individual substantive rights without creating a corresponding set of remedies.

Keywords:   sovereign immunity, international law, human rights law, remedies, case law

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