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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
Although it has beenmaintained that immunity is not tantamount to impunity,
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the fact that once a claim seeking a remedy for serious violations of human rights
is rejected due to the granting of immunity to the alleged perpetrator, the victim
may not have any other forum within which to bring the claim and allow justice to
be done.
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If the granting of immunity to a foreign State in the case of a
jus cogens
violation does not directly lead to
de facto
impunity
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then it, at least, generates
a direct non-access to justice. This fact regrettably bears a risk of rendering the values
common to and recognized by the international community unenforceable.
V. Conclusions
Much has been written and said about the relationship between State immunity
and
jus cogens
. The issue, however, remains unsettled, as the divergent decisions of
both national and international courts, together with the equally heterogeneous
opinions of scholars, indicate. The concept of State immunity is much older than the
notion of peremptory norms. The latter, having emerged relatively recently, was born
as a child of modern international law, where not only the sovereignty of States but
also certain common values protecting an individual’s rights represent the core of the
international community. Acknowledging that the sources of international law are
not so unequivocal in addressing the coexistence of the concepts, and that they thus
leave space for the emergence of certain (often contrasting) tendencies within State
practise, several decisions in the past decade have exacerbated the debate. Focusing
on the relationship between these two concepts from the perspective of international
treaties, State practise, jurisprudence of the international courts and academic views,
the present research sought to address the questions of whether international law has
evolved enough to create certain principles or rules on the interplay of
jus cogens
and
State immunity, and what solutions (or problems) these rules, if they exist, produce.
The fact that the Vienna Convention on the Law of Treaties, the sole multilateral
treaty in force that governs the legal status of peremptory norms, does not contain
any particular or explicit reference to the State immunity, may lead to a premature
impression that this source is of no relevance to the issue. The opposite, however, is
true. Since the Convention prescribes that a peremptory norm is non-derogable and
renders void any conflicting rule of international law, there is no reasonable ground
to conclude that it would not affect the rules on State immunity. This premise is
theoretically based on the so-called normative hierarchy, which puts
jus cogens
norms,
embracing the obligations
erga omnes
and protecting the most important values, on
the top of the ‘virtual normative pyramid’, leaving below the other, ‘ordinary’, rules.
These peremptory norms then enjoy a special primacy, or supremacy, and cannot be
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Arrest Warrant case
, para. 60.
104
See McGregor, L.,
Torture and State Immunity
, p. 908 ff., who discusses the diplomatic protection as
a potential remedy.
105
A term used by one of the ICJ judges,
Arrest Warrant case
, Diss. Op. of Judge van den Wyngaert,
para. 34.