Skip Navigation

European Journal of International Law 2007 18(5):955-970; doi:10.1093/ejil/chm049
This Article
Right arrow Full Text
Right arrow Full Text (PDF)
Right arrow Alert me when this article is cited
Right arrow Alert me if a correction is posted
Services
Right arrow Email this article to a friend
Right arrow Similar articles in this journal
Right arrow Alert me to new issues of the journal
Right arrow Add to My Personal Archive
Right arrow Download to citation manager
Right arrowRequest Permissions
Google Scholar
Right arrow Articles by Orakhelashvili, A.
Right arrow Search for Related Content
Social Bookmarking
Add to CiteULike   Add to Connotea   Add to Del.icio.us  
What's this?

The European Journal of International Law Vol. 18 no. 5 © EJIL 2008; all rights reserved

State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong

Alexander Orakhelashvili*

* LLM cum laude (Leiden); PhD (Cantab.); Junior Research Fellow, Jesus College, Oxford. Email: alexander.orakhelashvili{at}law.ox.ac.uk.

  Abstract

The proper way of addressing the impact of normative hierarchy on state immunity is to adopt the normative-evidentiary approach cleansed of preconceptions motivated by certain risk factors that possess only theoretical significance. The European Court stated in Al-Adsani on the hierarchy of norms issue without properly examining most of its crucial aspects. The Joint Dissenting Opinion of six judges has exposed the weaknesses in the Court's reasoning. Still, some national courts, especially the House of Lords in Jones v. Saudi Arabia, have taken the Al-Adsani ruling as axiomatic, and accepted its outcome without enquiring into whether the line of reasoning the European Court had pursued was consistent or supported with evidence. The outcome is an unfortunate thread of judicial decisions, which do not properly examine the impact of the hierarchy of norms on State immunity, and consistently uphold the impunity of the perpetrators of torture as well as the denial to victims of the only available remedy.


Add to CiteULike CiteULike   Add to Connotea Connotea   Add to Del.icio.us Del.icio.us    What's this?




Disclaimer:
Please note that abstracts for content published before 1996 were created through digital scanning and may therefore not exactly replicate the text of the original print issues. All efforts have been made to ensure accuracy, but the Publisher will not be held responsible for any remaining inaccuracies. If you require any further clarification, please contact our Customer Services Department.