Chapter IX. Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?

Abstract

This chapter focuses one possible legal consequence ensuing from a breach by a State of a peremptory norm of international law, in particular a violation of fundamental human rights, namely the loss of that State's sovereign immunity in foreign civil courts where it is sued for damages by the victims of its jus cogens violation: does international law still oblige the courts of the forum State to accord a perpetrator state immunity, are they at least still allowed to do so, or are they already obliged to deny it? It is quite obvious that international law in its current state of development does not provide adequate reparation to victims of jus cogens violations. But the lex lata does not leave them without rights. In some cases, the national law of the perpetrator State will already accord them an actionable claim for damages. Keywords: foreign civil courts; fundamental human rights; international law; jus cogens violations; state immunity; State sovereignty