Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 9 of 9
Full-Text Articles in Law
Abusing The Authority Of The State: Denying Foreign Official Immunity For Egregious Human Rights Abuses, Beth Stephens
Abusing The Authority Of The State: Denying Foreign Official Immunity For Egregious Human Rights Abuses, Beth Stephens
Vanderbilt Journal of Transnational Law
Government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. This claim to immunity is founded on two interrelated errors. First, the post-World War II human rights transformation of international law has rendered obsolete the view that a state can protect its own officials from accountability for human rights violations. Second, officials can be held individually responsible for their own actions even when international law also holds the states liable for those acts. This Article begins with an analysis of …
The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart
The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart
Vanderbilt Journal of Transnational Law
The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …
Changing The International Law Of Sovereign Immunity Through National Decisions, Lori F. Damrosch
Changing The International Law Of Sovereign Immunity Through National Decisions, Lori F. Damrosch
Vanderbilt Journal of Transnational Law
The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate …
Italian Judges' Point Of View On Foreign States' Immunity, Elena Sciso
Italian Judges' Point Of View On Foreign States' Immunity, Elena Sciso
Vanderbilt Journal of Transnational Law
The Article gives an account of the most recent Italian practice as regarding foreign states' immunity from the jurisdiction of the forum state. In the absence of domestic laws regulating the matter, Italian courts thus far have been directly applying international customary law, making recourse to a progressive interpretation of international rules. In the past, Italian judicial practice together with the Belgian one gave a great contribution to the consolidation of the restrictive immunity theory. In the last few years, Italian courts have lifted immunity with respect to acts of a foreign state qualified as "acta iure imperii" in civil …
The International Law Of State Immunity And Its Development By National Institutions, Christian Tomuschat
The International Law Of State Immunity And Its Development By National Institutions, Christian Tomuschat
Vanderbilt Journal of Transnational Law
The proceedings between Germany and Italy currently pending before the International Court of Justice have revived interest in the legal regime of jurisdictional immunity of states. Germany charges Italy with violating the basic rule of state immunity by entertaining reparation claims brought before its civil courts by victims of serious breaches of international humanitarian law committed by Nazi Germany during World War II. Jurisdictional immunity is not absolute, but it remains preserved for truly governmental acts like military operations. None of the generally recognized exceptions apply in the German-Italian dispute. Damages resulting from international armed conflict are not covered by …
State Immunity And Human Rights: Heads And Walls, Hearts And Minds, Roger O'Keefe
State Immunity And Human Rights: Heads And Walls, Hearts And Minds, Roger O'Keefe
Vanderbilt Journal of Transnational Law
This Article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful ill-treatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates. It would make more sense for victims' interest groups to target the failure of allegedly responsible states to afford victims the opportunity of a remedy and the failure of victims' states of nationality to do enough to defend their nationals' interests.
The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal
The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal
Vanderbilt Journal of Transnational Law
Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …
Torture In The Eyes Of The Beholder, Mary-Hunter M. Mcdonnell, Loran F. Nordgren, George Loewenstein
Torture In The Eyes Of The Beholder, Mary-Hunter M. Mcdonnell, Loran F. Nordgren, George Loewenstein
Vanderbilt Journal of Transnational Law
This Article draws upon recent social psychological research to demonstrate the psychological difficulty of distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs--reliability and validity--that are employed in the social sciences to assess the quality of a construct or metric. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ it. Next, we draw on recent social psychological …
The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii
The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii
Vanderbilt Journal of Transnational Law
The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …