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State Immunity and the Violation of Human Rights. By Jurgen Brohmer. The Hague, Boston, London: Martinus Nijhoff Publishers, 1997. Pp. xvii, 224. Index. Fl 165; $107; L72.
Following the 1980 decision of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, much attention focused on the possibility of using the Alien Tort Statute (28 U.S.C. 1350) to remedy human rights violations committed outside the United States. However, most cases brought directly against foreign states in U.S. courts have failed as a result of the Foreign Sovereign Immunities Act of 1976 (FSIA). The overall structure of the FSIA accords a general immunity to states, and then sets out a series of exceptions to this immunity. Section 1605(5) of the Act provides one such exception, that states are not immune from the jurisdiction of United States courts with respect to torts causing death, personal injury or loss of or damage to property, provided that these torts are committed within the United States. However, that exception is expressly limited, and, by implication, states continue to be absolutely immune with respect to such "noncommercial" torts when these torts are committed outside the United States.
Since human rights violations are usually committed by state officials, agents or persons otherwise acting "under color" of state authority, state (or "sovereign") immunity thus imposes a significant constraint on the use of U.S. courts in civil suits concerning human rights violations committed abroad. Plaintiffs seeking to sue in the courts of other national legal systems face similar, if not stricter, constraints.
In an ambitious, wide-ranging study, Jurgen Brohmer of the University of the Saarland, Saarbracken, Germany, argues that these constraints need not exist, because international law permits national courts to deny state immunity with respect to certain fundamental human rights violations wherever those violations occur. As the first monograph on the subject of state immunity and human rights to have been written from a truly international law perspective, this reworked doctoral thesis will be of interest to both scholars and practitioners working in the field (although it is doubtful whether many of them will tolerate Martinus Nijhoff s pricing strategy) . Above all, a great deal of nonAnglo-American material is dealt with here, much of which is not readily...