Access to Court v. State Immunity
Brunel University - School of Social Sciences and Law
International and Comparative Law Quarterly, Vol 52, No. 2, pp. 297-332, 2003
The article discusses the relation between the right of access to court under Article 6(1) of the ECHR and the law of State immunity, in the light of the judgments of the European Court of Human Rights in Al-Adsani v UK, Fogarty v UK and McElhinney v Ireland. First, it considers the applicability of Article 6(1) in respect of jurisdictional limitations imposed as a matter of general international law and the legitimacy of aim and proportionality of States' decision to grant immunity. Second, it considers whether the exceptions to State immunity alleged in McElhinney v Ireland and Al-Adsani v UK reflect current international law, paying particular attention to the nature and legal effects of peremptory norms of international law (jus cogens).
Keywords: state immunity, access to court, fair trial, international law, customary international law, jus cogens, European Convention on Human Rights
JEL Classification: K19, K33, K41, K42Accepted Paper Series
Date posted: January 23, 2006
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