In Search of a Defence of the Transnational Human Rights Paradigm: May Jus Cogens Norms be Invoked to Create Implied Exceptions in Domestic Immunity Statutes?

Abstract

In this chapter,the author outlines the necessary doctrinal process to be followed by domestic courts as they adjudicate claims brought by victims of torture against foreign states or state officials. The central issue to be resolved, at least in jurisdictions with Westminister parliamentary traditions of government, is one of institutional competence. The question is whether domestic courts are able to rely on international sources of law in adjudicating the issues raised by these novel claims. As part of the process, domestic courts must also consider the interpretive issues presented by the interpenetration of international and domestic law governing torture and civil enforcement.

Keywords: torture, tort, sovereign immunity, international law, jus cogens, human rights, immunity