Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex. She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.
In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening). On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013). The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it. However, I speculated that we did not have certainty yet on two issues:
1) whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and
2) whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.
The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.
A Lack of Alternative Means to Resolve the Complaint
In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-Adsani. In that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44). However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).
The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1). It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully. Read the rest of this entry…