1 Università degli Studi di Milano Scuola di dottorato in Scienze Giuridiche International PhD Programme in Law and Society "Renato Treves” Effectiveness of human rights and state Immunity: improving the theoretical socio-legal background concerning human rights rise and protection. Candidate Camila Vicenci Witt Supervisor Prof. Dr. Maria Cristina Reale 2 UNIVERSITÀ DEGLI STUDI DI MILANO – SCUOLA DI DOTTORATO IN SCIENZE GIURIDICHE Effectiveness of human rights and state Immunity: improving the theoretical socio-legal background concerning human rights rise and protection. Camila Vicenci Witt Thesis presented for International PhD Programme in Law and Society "Renato Treves”- Università Degli Studi di Milano - Italy 3 To Thomas 4 ABSTRACT This thesis shall study the relationship between effectiveness of human rights and state immunity from a socio-legal perspective. The first chapter will focus on international law as a legal system, addressing its origins, functions and characteristics. The second chapter will examine the framework of state immunity, analyzing its conceptual configuration, historical development and differentiating it from similar notions. In the third chapter, the construction of human rights will be addressed, starting by their historical affirmation, studying their implementation and examining the right to reparations. The fourth chapter will focus on challenging immunity to make human rights effective, and it will analyze the case law on the matter, as well as the most significant theoretical approaches to the subject. The fifth chapter will present two original contributions to the discussion: one deconstructing the foundations of state immunity and another one focusing on the victim’s perspective, to finally draw some conclusions and try to balance the primacy granted to the protection of Human Rights in the 21st Century with traditional norms and institutes of International Law, such as State Immunity. Key- words: State Immunity – Human Rights – International Law – Socio-Legal Perspective 5 ACKNOWLEDGMENTS This thesis’ idea actually started in 2008 when, in my masters programme in Brazil, my former supervisor assigned me a seminar on state immunity in cases of violations of human rights before domestic courts. At that time, I knew very little about the subject, but realizing how people who suffered grotesque violations of their dignity, who were sometimes tortured, persecuted and who often lost their beloved ones could not, in the majority of the cases, obtain redress, left me with a profound feeling of injustice. Yes, I was naïve enough to believe, even after five years of Law School, that Law should be about justice, and I do not have words to thank my parents, Sandra and Marcio, for keeping what many call an “illusion” alive in me. My parents have always fought injustice in their own way, and they never ceased to be shocked by it. They have my eternal gratitude for teaching me that one should never see injustice as something normal, and that one should act upon it in its own way. My parents have also supported me financially when I chose the academic life instead of getting “a real job”, and even when I finally started teaching at the university, travelling 6 hours each way every week, they were always proud, encouraging and supportive. Moreover, it was a relief to be able to talk to a mother that understands that inexorable need of hand-washing your jeans or the irresistible urge to re-organize your Tupperware supply that comes when you have to sit and write your thesis. I also have to thank my “ad hoc” father, my dear uncle Fernando, who has always been present, helping in any way possible to make my life easier. He is the best airport chauffer, hospital companion, plumber, electrician and cultural guide one could ask for. He is also a wonderful friend and the one our family can always count on. 6 My gratitude goes to dear friend Anatercia Rovani too, with whom I shared so many unforgettable moments and so many human rights ideals in Law School, and who told me that I should enroll for the Renato Treves Ph.D. Programme in Milano. Coming and going from Brazil to Italy required a lot of understanding from my dear students at Unijui and IDC, who were always so inspiring and caring despite the fact that I was not as available to them as I should. Thank you, guys, for teaching me way more than I could ever taught you. A special thanks to Kellen, Claudio and Johnny, beloved friends who always managed to find some time for me, and who also forced me to find some time for them. And then it comes him, Thomas, who made me believe that where there is a will, there is a way. Despite all adversities of an intercontinental relationship, he fought for us and for making me happy every day. Thomas is so caring, so understanding and so supportive that I have no words to express how much I love him and how grateful I am for having the world’s best husband. Because of Thomas, Denmark was added to the Ph.D. and working-life equation. Moving to yet another country was not easy, and between the visa application desperation, the daily Danish classes nightmare, the job search and job finding, I met some special people who made my dark days here brighter: Catia, Delcilene, Marie, Morgan&Ana Paula, Cristina&Vassilis, Rebecca&Benny, Marie-Alice&Phil, Keith&Mathieu, Sayeh&Reza, thank you so much for everything! A special thanks also goes for Thomas’ family: Tove (a.k.a mormor), Bettina, Nanna, Lene, Helle, Poul, Tim, Stine, Therese, Ben, Bedstefar, Søren&Tita. 7 Here in Denmark, I was very fortunate to find a place that does a tremendous effort to defend human rights by fighting racial discrimination, and I am very grateful to Niels-Erik for letting me a part of Dokumentations og Rådgivnings Centeret om Racediskrimination (DRC). Finally, I am incredibly grateful for all the help and patience from Prof. Luigi Cominelli, and for the inestimable help, assistance, understanding, inspiration and trust from my supervisor, Prof. Maria Cristina Reale, without whom this would never be possible. 8 INDEX INTRODUCTION 11 1 INTERNATIONAL LAW AS A SPECIFIC LEGAL SYSTEM 18 1.1 The Origins of international law 19 1.2 The Functions of international law 23 1.3 The Lack of a Central Power Guaranteeing the Rule of 25 Law 1.4 No distinction between formal and material sources 27 1.5 Absence of a hierarchy among the sources of 28 international law 1.6 Emergence of an international norm 35 1.7 International responsibility of the state 38 2 THE FRAMEWORK REGARDING STATE IMMUNITY 43 2.1 Conceptual Configuration 44 2.1.1 Jurisdiction 44 2.1.2 International Competence 48 2.1.3 Immunity 51 2.1.4 Individualizing state Immunity 52 2.2 Evolution of state immunity 61 2.2.1 2.2.1 State Immunity’s Remote Roots 61 2.2.2 State Immunity Before Domestic Courts: First Developments 64 2.2.3 First Steps Towards a Relative Approach 74 2.2.4 Consolidating of the Relative Approach 77 2.3 Similar Notions: Act of state, Political Question and Non- 81 Justiciability 2.3.1 Act of state Doctrine 81 2.3.2 The Political Question 86 2.3.3 Non-Justiciability 87 3 THE CONSTRUCTION OF HUMAN RIGHTS 90 3.1 Historical affirmation of human rights 92 3.1.1 Remote Antecedents 92 3.1.2 From the XVIth Century to the First World War 95 3.1.3 Between the two World Wars 106 3.1.4 The Second World War 108 3.1.5 The Post War Period 109 3.2 Human Rights, the Global and the Regional 110 3.2.1 The Global System of Human Rights 113 3.2.2 Regional Systems of Human Rights 114 3.3 The right to a reparation as a human right 118 3.4 Forms of reparation 123 3.4.1 Restitutio in integrum 124 3.4.2 Compensation 126 3.4.3 Satisfaction 128 3.4.4 Guarantees of non- repetition 130 3.4.5 Lump sum agreements 131 4 CHALLENGING IMMUNITY TO MAKE HUMAN RIGHTS 134 EFFECTIVE 4.1 Case Law regarding state immunity in cases of violation 135 9 of human rights 4.1.1 Decisions concerning states WITHOUT specific legislation on 138 the matter 4.1.1.1 Italy 138 4.1.1.2 Greece 141 4.1.1.3 Brazil 144 4.1.2 Decisions concerning states WITH specific legislation on the 147 matter 4.1.2.1 United States of America 147 4.1.2.2 United Kingdom of Great Britain and Northern Ireland 151 4.1.2.3 Argentina 154 4.2 Theoretical Approaches Challenging State Immunity 157 4.2.1 The Implied Waiver Theory 157 4.2.2 The Normative Hierarchy Theory 161 4.2.3 Universal Jurisdiction 164 4.2.4 Option and Risk Calculability Theory 167 4.2.5 Mutual Benefit Theory 171 5 TENTATIVE CONTRIBUTIONS FOR AN ENHANCED 177 EFFECTIVITY OF HUMAN RIGHTS 5.1 Why not questioning the foundations of state immunity? 177 5.1.1 Sovereignty 178 5.1.2 Independence 181 5.1.3 Equality 184 5.1.4 Dignity 186 5.2 Social contributions for the enhancing the debate on 188 human rights and state immunity 5.2.1 Victims and victimology: what can we learn from them? 189 5.2.2 The victim- or who are we talking about? 197 5.2.3 The need for justice in a victim’s perspective 204 CONCLUSION 207 REFERENCES 214 10 Tous ces crimes d'Etat qu'on fait pour la couronne, Le ciel nous en absout alors qu'il nous la donne, Et dans le sacré rang où sa faveur l'a mis, Le passé devient juste et l'avenir permis.