SOERING V.

UNITED
SOVEREIGN
KINGDOM
IMMUNITY AND
HUMAN RIGHTS
VIOLATION
Relevance of the judgment to subject under
discussion

Introduction
Possible exceptions to state immunity in cases of serious violations of human rights have
been discussed for twenty years now. In 2004, the French and the German Societies of
International Law met in Berlin in order to discuss ius cogens and obligations erga omnes.
Isabelle Pingel and Thomas Giegerich presented excellent papers on possible exceptions to
state immunity in case of ius cogens violations. Meanwhile, the International Court of Justice
in Jurisdictional Immunities has confirmed the analysis given by Thomas Giegerich in 2004.

Three Different Approaches

1. The Civilist Approach: Construing Legal Rules
A series of scholars try to determine the limits of sovereign immunity by way of legal
construction. They rely on accepted rules of international law which they apply to cases
where a state has committed serious breaches of international human rights norms. This may
be called a civilist approach. Some authors, for instance, contend that a state who violates
fundamental human rights norms implicitly waives its immunity. Others apply the concept of
forfeiture or they contend that a breach of ius cogens may no t be qualified as an actus iure
imperii for which immunity is granted under contemporary international law.
It has also been tried to justify an exception to jurisdictional immunity by way of reprisal.
Some of these constructions seem hardly convincing.
Construing an implicit waiver by the state who violates fundamental norms, for instance,
appears to be pure fiction. Other arguments have been put forward with much more emphasis.
The most prominent example of a civilist approach to state immunity in case of serious
violations of human rights is the argument based on a conflict of norms and on hierarchy.
According to this approach, granting immunity would enter into conflict with the duty to
protect human rights. Since fundamental human right norms form part of ius cogens, they
must take precedence over state immunity which does not have such a higher rank. This
argument has been invoked by six dissenting judges of the European Court of Human Rights
(ECtHR) in the Al-Adsani case.

The argument is a civilist one of construing and applying accepted rules of international law:
If the obligation to grant immunity conflicts with a higher norm of international law, the latter
will automatically prevail. Although there are fundament al values of the international
community underlying the concept of ius cogens, the argument of giving ius cogens
precedence in case of conflict with ordinary norms of international law is a formalist one.

2. The Constitutional Approach: Sovereignty vs.

Human Rights
The constitutional approach goes beyond the formalist approach of applying given rules to a
case. Rather, it relies on fundamental principles of the international order. If such principles
enter into conflict in a given case, they must be weighed and balanced in order to develop a
new rule of international law which realizes all principles as far as possible. So it becomes
necessary to balance the principles underlying sovereign immunity on the one hand and
human rights on the other hand, and to seek a solution which is proportional to the aim
pursued. Such an approach is familiar to human rights scholars and judges. So when the
ECtHR is called upon to decide whether and to what extent the German yellow press may
publish pictures showing Caroline von Hannover, then the court has to weigh and balance the
right to respect for Caroline von Hannovers private life and freedom of the press, and it does
so in a proportionality test.
According to the ICJ, however, this approach cannot be transposed to questions of state
immunity. As the court held in Jurisdictional Immunities, such an approach would disregard
the very nature of State immunity.
At the Basel Conference on Immunities in the Age of Global Constitutionalism which gave
rise to this chapter, Theodor Schilling observed that the Al-Adsani judgment was not based
on a constitutional reasoning. This is true. The majority of nine judges supporting the
judgment essentially relied on state practice. According to the Court, immunities which have
been accepted by the community of nations cannot in principle be regarded as a
disproportionate.

The State-Centred Approach: State Practice and Opinio

Iuris
In Jurisdictional Immunities the ICJ firmly sticks to a state-centred approach. According to
this approach, the extent and the limits of state immunity must be established under
international customary law which is made by States. In order to do so, the court analyses
state practice and opinio iuris. The court also takes care to rebut some civilist arguments such
as that of a conflict of norms. In essence, however, it relies on state practice throughout the
judgment.

CASE - SOERING V. UNITED

KINGDOM
Facts
The applicant, Jens Sring, is a German national, born in 1966, who was brought by his
parents to the United States at age eleven. In 1984, he was an 18-year old honor student at the
University of Virginia, where he became good friends with Elizabeth Haysom, a Canadian
national two years his elder.

Haysom's parents, William Reginald Haysom and Nancy Astor Haysom, lived 65 miles from
the university, in Boonsboro (a suburb of Lynchburg), and were against their daughter's
relationship with Sring. According to the account provided later to local police, Sring and
Elizabeth Haysom decided to kill Haysom's parents; and, to divert suspicion, they rented a
car in Charlottesville and drove to Washington D.C. On 30 March 1985, Sring drove to the
Haysom residence and dined with the unsuspecting couple. During or after dinner, he picked
a quarrel and viciously attacked them with a knife. Both were found with their throats slit and
with stab and slash wounds to the neck and body.

In October 1985, Sring and Elizabeth Haysom fled to Europe; and, on 30 April 1986, they
were arrested in England, United Kingdom on charges of cheque fraud. Six weeks later, a

grand jury of the Circuit Court of Bedford County, Virginia, indicted Sring with the capital
murder of the Haysoms, as well as their separate non-capital murders. On 11 August 1986,
the United States requested extradition for the pair, based on the 1972 extradition treaty. A
warrant was issued under section 8 of the Extradition Act 1870 for the arrest of Sring, and
he was committed to await the Home Secretary's order to extradite him to the United States.

Sring filed a petition for habeas corpus with the Divisional Court and requested permission
for judicial review of the decision to commit him, arguing that the Extradition Act 1870 did
not authorise extradition for a capital charge. He also cited article IV of the US-UK
extradition treaty, which provides that an extradition request for an offence carrying the death
penalty can be refused if the requesting country has not given "assurances [...] that the death
penalty will not be carried out." An assurance had been provided by the Commonwealth
Attorney of Bedford County; but Sring contended it was worthless. On 11 December 1987,
Lord Justice Lloyd in the Divisional Court admitted that the assurance "leaves something to
be desired" but refused the request for judicial review, stating that Sring's request was
premature, as the Home Secretary had not yet accepted the assurance.

Sring appealed to the Judicial Committee of the House of Lords, which rejected his claim on
30 June 1988. He, then, petitioned the Home Secretary without success, the latter authorising
extradition on 3 August 1988.

Anticipating this outcome, Sring had filed a claim with the European Commission of
Human Rights (ECHR) on 9 July 1988, asserting that he would face inhuman and degrading
treatment contrary to Article 3 of the European Convention on Human Rights ("the
Convention") were he to be extradited to the USA, it being likely that the death penalty
would be applied.

Sring's arguments that the use by a non-Convention State of the death penalty would engage
the right to life were novel, in that Article 2(1) of the Convention expressly permits the use of
the death penalty, and Article 3 had never been interpreted to bring the death penalty, per se,

within the prohibition of "inhuman or degrading treatment or punishment". The applicant,

therefore, sought to make it clear that this was not the simple application of a punishment
prescribed by law, but rather his exposure to the death row phenomenon, where he would be
kept in detention for an unknown period, awaiting execution. The ECHR requested that no
extradition take place pending the deliverance of its judgment.

Judgment
European Commission of Human Rights
Sring's application was declared admissible on 10 November 1988, and the European
Commission of Human Rights gave its judgment on 19 January 1989. It decided, by six votes
to five, that in this particular case the extradition would not constitute inhuman or degrading
treatment. It did, however, accept that the extradition of a person to a country "where it is
certain or where there is a serious risk that the person will be subjected to torture or inhuman
treatment the deportation or extradition would, in itself, under such circumstances constitute
inhuman treatment."

European Court of Human Rights

On 7 July 1989, the European Court of Human Rights (ECHR) handed down a unanimous
judgment affirming the Commission's conclusion that Article 3 could be engaged by the
extradition process and that the extraditing state could be responsible for the breach where it
is aware of a real risk that the person may be subject to inhuman or degrading treatment.
Amnesty International intervened in the case and submitted that, in the light of "evolving
standards in Western Europe regarding the existence and use of the death penalty", this
punishment should be considered as inhuman and degrading and was therefore effectively
prohibited by Article 3. This was not accepted by the ECHR, as the Convention does allow
for the death penalty's use in certain circumstances. It followed that Article 3 could not stand
in the way of the extradition of a suspect simply because they might be subject to the death
penalty.

However, even if the extradition itself would not constitute a breach of Article 3, such factors
as the execution method, the detainee's personal circumstances, the sentence's
disproportionality to the gravity of the crime, and conditions of detention could all violate
Article 3. To answer this question, the Court had to determine whether there was a "real risk"
of Sring's being executed. Relying on arguments by the Attorney-General for England and
Wales, the ECHR did not give much weight to U.S. authorities' assurance that the
Commonwealth of Virginia would not seek the death penalty.

Departing from the Commission's ruling, the ECHR concluded that the "death row
phenomenon" did breach Article 3. They highlighted four factors that contributed to the
violation:

1.
2.
3.
4.

The length of detention prior to execution

Conditions on death row
Sring's age and mental condition
The possibility of his extradition to Germany

As the ECHR concluded:

Having regard to the very long period of time spent on death row in such extreme conditions,
with the ever present and mounting anguish of awaiting execution of the death penalty, and to
the personal circumstances of the applicant, especially his age and mental state at the time of
the offence, the applicant's extradition to the United States would expose him to a real risk of
treatment going beyond the threshold set by Article 3. A further consideration of relevance is
that in the particular instance the legitimate purpose of extradition could be achieved by
another means [extradition or deportation to Germany], which would not involve suffering of
such exceptional intensity or duration.

Aftermath of the judgment

The U.K. government obtained further assurances from the U.S. regarding the death penalty
before extraditing Sring to Virginia. He was tried and convicted of the first degree murders
of the Haysoms and, on 4 September 1990, sentenced to two consecutive life terms. He is
serving his sentence at the Buckingham Correctional Center in Dillwyn, Virginia.

Elizabeth Haysom did not contest her extradition from the U.K. and pleaded guilty to
conspiring to kill her parents. On 6 October 1987, the court sentenced her to 45-years-percount to be served consecutively. She is serving her sentence at the Fluvanna Correctional
Center for Women.

Significance
Soering v. United Kingdom is important in four respects:

It enlarges the scope of a state's responsibility for breaches of the Convention. A signatory
State must now consider consequences of returning an individual to a third country where he
might face treatment that breaches the Convention. This is notwithstanding that the illtreatment may be beyond its control, or even that assurances have been provided that no illtreatment will take place.
By finding a breach of the Convention on the territory of a non-signatory State, the Court
considerably expanded the obligation to all States. Not only are signatories responsible for
consequences of extradition suffered outside their jurisdiction, but this jurisdiction implicitly
extends to actions in non-signatory States. The Convention also overrides agreements
concluded with such States.
The rationale of the Court's judgment applies equally to deportation cases, where other
articles of the Convention may apply, such as Article 6 (right to a fair trial), as seen in
Othman (Abu Qatada) v. United Kingdom (2012).

The Court's approach to the death penalty, itself permitted by the Convention, may reduce its
use by non-signatory States that seek to extradite suspects from signatory States. The decision
makes it difficult, if not impossible, for the US and other capital punishment countries to
extradite suspects on capital charges from signatory States.
Conclusion
Legal arguments with regard to immunities in cases of serious human rights violations may
be classified into three different approaches: a civilist, a constitutional and a state-centred
one.
The state-centred approach is that of traditional international law. It is followed by the ICJ
and it draws its legitimacy from state consent. The civilist approach is equally recognized in
international law. The ICJ accepted the idea that a norm of ius cogens would take precedence
over another norm of international law in case of conflict, whereas it took care to explain that
there was no such conflict of norms.
However, a civilist method becomes problematic where it is used in order to implement
certain value judgments without making them explicit.
The constitutional approach is a matter of fact in constitutional systems like that of the
ECHR. Weighing and balancing competing principles is an essential element of ECtHR case
law. However, it seems that this method requires a constitutional court which can
authoritatively decide on the right balance to be struck in a given case. While the ECtHR is
such a constitutional court with compulsory jurisdiction, general international law does not
show the same degree of constitutionalisation, and the jurisdiction of the ICJ still depends on
state consent according to article 36 of the Statute of the ICJ. Therefore, autonomous
constitutional reasoning is highly problematic within the context of general international law.
This does not mean that there is no space for constitutional reasoning in general international
law. First of all, a reasoning based on principles may be used in order to test legal
constructions and in order to make inherent value judgments explicit. Moreover, states do not
behave in an ethical vacuum. A reasoning based on legal principles may guide state action
and it may help to explain why states behave in a certain way. Applied to the question of
immunities and their limits this means that due regard should be paid to the requirements of
international co-operation within a world without central authority.

This may be hard to accept under the ethics of conviction, but it corresponds to the ethics of
responsibility as understood by Max Weber.

BIBLIOGRAPHY
http://www.germanlawjournal.com/index.php?pageID=11&artID=160
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/OKeefe-cr.pdf
http://epub.uni-regensburg.de/28797/1/Uerpmann_Immunities_2013.pdf
www.wikipedia.com