Nwosu, Udoka
(2011)
Head of state immunity in international law.
PhD thesis, London School of Economics and Political Science.
Abstract
International events since the landmark Pinochet case, increased human rights
advocacy, efforts at a culture of accountability, as well as the recent pro-democratic
up-rising in the Arab states sustain impetus for the consideration of Head of state
immunity in international law.
A naturalist view of international law is that there can be no Head of state immunity
for violations of human rights. This popular view proceeds from a theoretical
misunderstanding of the positivist concept of immunities resulting in its practical
misapplication. However, this naturalist view must be contextualised within the
subtleties of international rule-making. It is to this end that the inquiry into Head of
state immunity as a concept of customary international law, emergent trends and the
formation of a new rule of custom in this regard is necessitated. Thus, this thesis will
inquire into the applicability, or otherwise, of Head of state immunity before certain
fora, including national courts, international courts, and internationalised courts with
view to discerning emergent trends in the practice of Head of state immunity.
Thematic in this thesis, is the argument that a provision in the constitutive instrument
establishing the jurisdiction of a court which makes irrelevant the fact of official
capacity as Head of state, without more, cannot remove the immunities of Heads of
states under customary international law. This thesis will undertake its analysis from
the perspective of the nature of the constitutive instrument establishing an
international court and the extent to which states are bound by the instrument. This thesis will conclude this inquiry by considering the extent to which the trends
elicited in the substantive part of the work have changed customary international law
and the extent to which there can be said to be a new international law on Head of
state immunity.
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