The Human Rights Challenge to Immunity in International Law

ISBN-13: 9783030929251 / Angielski / Miękka / 2023 / 202 str.

Selman ?zdan

Opis

This book focuses on the tension between the protection of human rights recognised as jus cogens (peremptory) norms, on the one hand, and the bestowal of immunity on the state and its representatives, on the other, to ascertain how these immunities can be eroded, if not fully abolished, to maintain full protection of jus cogens human rights under international law. The book argues that immunity should not equate to impunity when violations of jus cogens human rights are committed by States, Heads of State, or diplomatic agents. To make the case, the organic structures of the concepts of sovereignty and fundamental human rights are examined. Then, the human rights-based challenge to immunity is presented with respect to State, Head of State and diplomatic immunity, and the transition from a state-centric system to a human-centric system is explored. Jus cogens norms are at the centre of the impunity versus immunity debate.

Spis treści

Chapter 1: Introduction

Background

Motivation and Approach of the Book

Structure of the Book

Notes

References

Chapter 2: From a State-Oriented to a Human-Oriented Approach

Sovereignty

State Sovereignty under International Law

Growing Tension Between Human Rights and State Sovereignty

Conclusion

Notes

References

Chapter 3: Human Rights Recognised as Jus Cogens

Evolving Human Rights to International Legal Dimension

The Concept of Jus Cogens Norms

Hierarchy among Human Rights with respect to Jus Cogens

Differentiation of Jus Cogens Human Rights from Non-Derogabality

Human Rights Recognised as Jus Cogens

Conclusion

Notes

References

Chapter 4: State Immunity or State Impunity in cases of Jus Cogens Violations

Bases of State Immunity

State Immunity under International Law

Absolute and Restrictive Immunity

Controversial Exceptions

Tension between State Immunity and Violations of Jus Cogens Norms

Picking Holes in the ICJ Judgment

Conclusion

Notes

References

Chapter 5: A Critique of the Demise of Heads of State Immunity in the Age of Human Rights

Identification of Head of State

Question of Head of State Immunity: Pinochet, Taylor, and Habré

Developments of Head of State Immunity in International Legal System

The Problem of Head of State Immunity in relation to Violations of Jus Cogens Norms

Ending Impunity for Heads of State

Conclusion

Notes

References

Chapter 6: Human Rights versus Diplomatic Immunity

On Diplomacy

Development of Diplomatic Immunity in International Law

Theoretical Grounds for Diplomatic Immunity

Diplomatic Immunity

Efforts to Limit Diplomatic Immunities Provided by the Vienna Convention

Personal and Functional Immunities for Diplomatic Agents

Diplomatic Immunity versus Diplomatic Impunity

Conclusion

Notes

References

Chapter 7: Conclusion

Notes

References

O autorze

Selman Özdan is Assistant Professor in the School of Law at Ondokuz Mayıs University, Turkey, where he is Head of Department for Public International Law. Previously, he worked at Erciyes University School of Law. He is a member of the Society of Legal Scholars and Case Western Reserve University Law Alumni Association. His most recent book chapter appeared in The Epistemology of Deceit in a Postdigital Era: Dupery by Design (2021).

Blurb

‘The ratification and signing of international human rights conventions are one of the landmark achievements of the twentieth century, signalling the global necessity of respecting human dignity by protecting fundamental entitlements. This book significantly advances such debates with its rigorous analysis and defence of jus cogens norms to brilliantly argue that these norms must prevail over state immunity and impunity.’

—Alison MacKenzie, School of Sociology, Education and Social Work, Queen’s University Belfast, UK

‘I commend to prospective readers Dr Selman Özdan's considerations of the tension between immunities and impunity within the rarefied air of jus cogens norms within an international human rights law paradigm. Dr Özdan does well to set out a possible road forward towards an international rule of law which ensures the absolute protection of those fundamental rights of a peremptory character.’

—Jean Allain, Professor of International Law, Monash University, Australia

This book focuses on the tension between the protection of human rights recognised as jus cogens (peremptory) norms, on the one hand, and the bestowal of immunity on the state and its representatives, on the other, to ascertain how these immunities can be eroded, if not fully abolished, to maintain full protection of jus cogens human rights under international law. The book argues that immunity should not equate to impunity when violations of jus cogens human rights are committed by States, Heads of State, or diplomatic agents. To make the case, the organic structures of the concepts of sovereignty and fundamental human rights are examined. Then, the human rights-based challenge to immunity is presented with respect to State, Head of State and diplomatic immunity, and the transition from a state-centric system to a human-centric system is explored. Jus cogens norms are at the centre of the impunity versus immunity debate.

Selman Özdan is Assistant Professor in the School of Law at Ondokuz Mayıs University, Turkey, where he is Head of Department for Public International Law. Previously, he worked at Erciyes University School of Law. He is a member of the Society of Legal Scholars and Case Western Reserve University Law Alumni Association. His most recent book chapter appeared in The Epistemology of Deceit in a Postdigital Era: Dupery by Design (2021).