What a Pity! Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International Human Rights Law

Abstract

Over the course of the past half century, some significant progress has been made in creating accountability mechanisms that have helped to serve human rights. Five are analyzed here: (1) the evolution of the European Court of Human Rights (ECHR), (2) Alien Tort Statute litigation, (3) universal jurisdiction, (4) the “terrorism” exception under US sovereign immunity law, and finally (5) the establishment of regional and international criminal tribunals. However, two related international law principles—sovereign immunity and state responsibility—stand squarely in the way of achieving greater human rights protection. This article analyzes an ECHR case (Al-Adsani v. United Kingdom) that could have changed much of this almost immediately. However, in an extraordinarily close (9–8) vote, the court upheld the principle of sovereign immunity—even when this serves to protect a state that engages in torture, which is a jus cogens norm. One of the dissenting judges in this case exclaimed: “What a pity!” But the missed opportunity to protect human rights is more than just a pity. Rather, it is contrary to why international human rights law exists in the first place. The article closes by calling for the use of much different standards for assigning state responsibility.