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The aim of this thesis is to examine the question of whether there is an emerging exception in international law to the principle of foreign state immunity in respect of violations of 'jus cogens' norms. The scope of the thesis is limited to immunity from jurisdiction. Chapter 1 will examine the nature of the concept of foreign state immunity (also known as sovereign immunity) by contrasting it with other, similar doctrines. The chapter then analyses different types of sovereign immunity, namely, absolute immunity and restrictive immunity, and immunity 'ratione materiae' and immunity 'ratione personae'. Chapter 2 will analyse in considerable detail the subjects and scope of foreign state immunity by examining the definition of the "foreign state" for immunity purposes and the recognised exceptions to immunity. Chapter 3 will consider the nature of the concept of jus cogens with its origins in the law of treaties, and investigate the application of the concept to unilateral acts, such as the assertion of foreign state immunity by an individual State. Examples of 'jus cogens' norms are also identified. Chapter 4 analyses five key criminal cases in which the issue of foreign state immunity and allegations of 'jus cogens' violations have arisen, drawing distinctions that explain the result in each case. Chapter 5 examines the key civil cases in which questions of the interaction between sovereign immunity and 'jus cogens' violations have arisen, and compares the approaches taken and the exceptions applied. Finally, in Chapter 6, the factors for and against the recognition of a 'jus cogens' exception to foreign state immunity are analysed. Features arising out of both the civil and criminal cases upon which the decisions on immunity depended are examined. Conclusions will be reached as to whether at the start of the twenty-first century, contraventions of the 'jus cogens' may be said to constitute an exception in international law to foreign state immunity. |
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