State immunity from jurisdiction before the ECHR: The long shadow of Customary International Law

Abstract

During the last two decades, the European Court of Human Rights (ECHR) has issued a set of decisions on admissibility and of judgments in which the court applies the general rules of international law (IL) that regulate the foreign state immunity from jurisdiction and enforcement before the forum of the state courts, mainly for determining whether the right of access to the courts has been violated (Article 6.1 of the Rome Convention). In its jurisprudence, the Court at Strasbourg endeavours to interpret the provisions of the Rome Convention seeking a result that is consistent with the other rules of the IL that bind states parties, and to date, its judicial work in relation to the above rules has not put at risk the unity of the international legal order. More generally, it should be noted that the ECHR shows in its jurisprudence a clearly consensualist conception of international law and its norm formation processes.