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Title: Immunity versus human rights: The right to a remedy after benkharbouche
Other Titles: Immunity v Human Rights – or Harmonious Interpretation? Incompatibility of the State Immunity Act with the Human Rights Act and the Right to a Remedy under International and European Law after Benkharbouche
Authors: Ziegler, Katya S.
First Published: 27-Jan-2017
Publisher: Oxford University Press (OUP)
Citation: Human Rights Law Review, 2017, 17 (1), pp. 127-151
Abstract: This article critically analyses the judgment in the case of Benkharbouche in which the Court of Appeal declared sections 16(1)(a) and 4(2)(b) of the State Immunity Act 1978 (UK) to be incompatible with Article 6 of the European Convention on Human Rights because the provisions disproportionately restricted access to justice of service staff of embassies in relation to their employment contracts. At the same time the Court disapplied these provisions because they breached the right to an effective remedy under Article 47 of the European Union Charter of Fundamental Rights. The judgment is welcomed for highlighting the overly restrictive scope of the State Immunity Act in relation to certain employment relationships with diplomatic missions in the United Kingdom, for contributing to the international law of state immunity and for clarifying the national application of the EU Charter. However, the Court's very cautious approach to the interpretation of a UK statute in the light of international law is criticized. Interpreting the Act in conformity with international law and legislative intent would not have crossed the boundaries of interpretation but would have avoided divergence between remedies available to individuals under the Human Rights Act and those available under EU law.
DOI Link: 10.1093/hrlr/ngw042
ISSN: 1461-7781
eISSN: 1744-1021
Embargo on file until: 27-Jan-2019
Version: Post-print
Status: Peer-reviewed
Type: Journal Article
Rights: Copyright © The Author [2017]. Published by Oxford University Press. All rights reserved.
Description: The file associated with this record is embargoed until 24 months after the date of publication. The final published version may be available through the links above.
Appears in Collections:Published Articles, School of Law

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