A Glimmer of Hope?: State Immunity and Customary International Law in the ECHR System

Abstract

On February 14, 2002, the International Court of Justice issued a landmark decision in Democratic Republic of the Congo v. Belgium ruling that, under customary international law, incumbent Foreign Ministers are immune from the criminal jurisdiction of foreign domestic courts. In so holding, the ICJ missed an excellent opportunity to contribute to the development of modern international law. The ICJ opinion immediately received a deluge of criticism; however, months earlier, a considerably more disheartening set of decisions had been handed down in Strasbourg. These state immunity cases illustrate that the European Court of Human Rights, despite proclaiming status a a unique and independent international order, has ties to customary international law that are are, at times, so strong that the Court will depart from its standard jurisprudence to comport even with dying customs.

Keywords: ECHR, European Court of Human Rights, state immunity, McElhinney, Adsani, Fogerty, Congo, Customery international law