Steps taken by a State party in relation to public international law cannot, in principle, be construed as an inconsistent interference with article 6. There is a divergence between civil financial obligation under international law and criminal financial obligation under international law. As laid down in Prosecutor v Furundzija, the Court recognizes that the prohibition of torture is an authoritative norm. However none of the international instruments which forbid torture, relate to civil proceedings or to state immunity.
The Court while observing the increasing recognition of the dominant importance of the ban of torture can not observe that this permits for the proposal that a State is not authorised to claim exemption under global law from an action of civil nature. However, the ECHR court viewed that the majority acknowledged the jus cogens character of the ban of suffering but decline to draw the outcomes of this disagreement. i. e. the full exemption of any state immunity in civil actions.
Thus, the distinction made by the majority between civil and criminal liability is not consonant to the jus cogens character of the prohibition of torture It has also been alleged that there is no underlying association with the U. K. or its officials in committing the suffering. The Court held collectively that there was no contravention of article 3 and also declared by preponderance that there was no contravention of article 6. AUSTRALIA AND FOREIGN IMMUNITY
In some cases, the Australian courts might be requested to pronounce their judgment on the law of any foreign country, an act by a foreign country or against the foreign state. In some cases, an Australian court might be asked to deal with litigations raised by wholly private parties as in the case of Al-Adsani in U. K. The Australian courts have acknowledged and initiated a wide range of doctrines mainly to safeguard the concern of foreign countries from settlement by the court of justices of the other nations.
In Australia also, there exists concept of foreign immunity whereby a state is being extended immunity from the authority of a court when litigated as a defendant. It is to be noted that previously, absolute immunity was available where a foreign country could never be put forth for the perusal of a court in Australia. However, now immunity can be claimed where the foreign country is involved in sovereign as opposed to commercial activity. It is to be noted that Australia has already incorporated the principles of public international law which is being enacted in the Foreign States Immunities Act, 1985[FSLA].
According to Section 13 of the FSLA, individuals who alleged of torture by foreign state authorities, with such torture purportedly happened in foreign country’s own soil, not in the state of adjudication i. e. in Australia. Having given clear territorial restriction to the personal injury immunity, such claims would seem to be barred under the aforementioned provision of the act. In Jones v Kingdom of Saudi Arabia represented by Ministry of labour, the Australian Court made a clear division between accomplishments of foreign government itself as a respondent and accomplishment of authorities of the country or individual employees,.
Where a suit was filed against the foreign country itself, exemption was said to occur ratione personae that is, by rationale of the entity itself being individually impleaded. However, the Court observed that authorities of the government or private employees are excluded in the description of ‘foreign state’ under the FSIA. For the state to claim immunity with regard to actions against such persons, the topic of the action must speak about to ‘state conduct’ under normal international law.
The Court observed that after an comprehensive examination of international practice especially article 14(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which demands states to make sure legal redress to sufferers of torture. Hence, in Australia, torture cannot be regarded an exercise of a state function. As a result, no abnormal liability of the government can be awarded for such acts, which are the personal accountability of the citizens and therefore Australian court will not grant exemption.