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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
denied or bypassed by any other rule. Employed by several national tribunals
106
and
to some extent by the UN International Law Commission,
107
the stumbling block
of this interpretation lies on the recognition that such rules, peremptory norms on
one side and State immunity rules on another, conflict. International tribunals
108
seem to have a tendency to distinguish between procedural and substantial norms,
categorizing State immunity to the former rank, while
jus cogens
to the latter, and
thus purport to exclude any potential conflict between them. This approach has
been both criticized and complimented by scholars. One should bear in mind,
however, that the international courts are to apply and interpret law as it stands and,
while doing so, cannot overlook the practise of several, albeit minority, States. No
international treaty or customary source determines whether the rules of
jus cogens
or
of State immunity bear a substantial or procedural feature; and similarly, no legal rule
excludes the potentiality of conflict between them. No international rule operates
separately, and they all together form a unified system.
The contribution of the ICJ’s recent decision in the
Jurisdictional Immunities
case
to the future development of State practise in this regard remains to be seen.
The ICJ has pronounced in a significant, unequivocal way, and one may wonder
whether this decision will have a regressive impact on the practise of certain States
that previously tended to follow the opposite approach. Nevertheless, if it is accepted
that the distinction between substantial norms and those that are ‘procedural in
nature’ is without prejudice to the incidence of conflict among them, State immunity
shall, in terms of normative hierarchy, be put aside in those cases where
jus cogens
violations are involved. If the opposite is true and there is a
real and legal
, not only
formal and theoretical, classification of substantial and procedural international
norms excluding a mutual conflict, then the balance of
values
should still be traced in
the will of States. In other words, the normative approach should simultaneously be
applied with the value approach,
i.e.
those who apply international rules cannot only
take into account the format or wording in which the rules are embraced and at the
same time disregard the values borne by these.
Accordingly, one may conclude that no international rule prevents the incidence
of conflict between
jus cogens
and State immunity; and taking into account the
divergent results that the application of both leads to, the practical existence
of conflict cannot be denied. It remains problematic that no international rule
explicitly
pronounces on the relationship between both; or at least, no unequivocal
interpretation is attached to the rules separately governing these two concepts. Some
guidance may be derived from the Vienna Convention of the Law of Treaties and
practise of several States. Thus, which interpretation will be given to the existing rules
106
Von Dardel case, Samantar case
, Discrict Court in
Princz case
(all the U.S.);
Pinochet case
(UK);
Prefecture of Voiotia case
(Greece);
Ferrini
(Italy).
107
See ILC, Report on the Fragmentation, paras. 344 ff.
108
The ICJ in
Jurisidictional Immunities case
and in
Arrest Warrant case
and the ECtHR in
Al-Adsani
(by
a very narrow majority).