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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
On the Author
: JUDr.Michaela Rišová is Teaching assistant at Comenius University
in Bratislava, Ph.D. candidate at Charles University in Prague. Master of Laws
completed at Comenius University in Bratislava (2007), post-graduate education
and legal training gained at the Institute of International Relations and Comparative
Law in Bratislava (2007–2009), University of René Descartes in Paris (2010–2011),
the International Law Seminar at the UN International Law Commission in Geneva
(2012) and The Hague Academy of International Law (2013). Co-author of three
textbooks and of the first Slovak translation of Brownlie’s Principles. Research focus
on jus cogens, international security, human rights and diplomatic law. Member of
the Slovak Society for International Law, of the European Society of International
Law and of the Slovak Committee for UNICEF.
I. Introduction
In February 2012 the International Court of Justice handed down its judgment in
Jurisdictional Immunities
case, settling the dispute between Germany and Italy.
2
The
dispute arose when Italian national courts denied Germany sovereign immunity by
allowing civil claims brought against the latter for alleged violations of international
humanitarian law during the Second World War. One of primary arguments
submitted by Italy was that
jus cogens
norms prevail over rules on immunity, and
that therefore State immunity cannot be invoked to preclude action against a State
alleged to have committed acts violating
jus cogens
norms.
3
The judgment was highly
anticipated as an opportunity for the Court to clarify the legal position regarding the
coexistence and potential conflict between the principle of sovereign immunity, on the
one hand, and the primacy of
jus cogens
norms, on the other
.
This case has reopened
debate among scholars on the existence of a normative hierarchy in international
law, and in particular, on the question of normative conflict and potential solutions
thereto. The controversy that continues to surround these issues, both in theory and
practise, reflects the uncertainty of the concept of
jus cogens
. Though the existence of
jus cogens
norms is now seldom disputed, the legal effects they may produce on other
international norms remains in question.
In this paper, the author discusses the relationship between peremptory norms
and rules on State immunity, by examining the impact of
jus cogens
on the law of
State immunity. Mainly, it focuses on the question whether there is a clash between
these two and if so, whether international law provides rules to solve this conflict. It
critically addresses the arguments employed by States, tribunals and scholars in order
to establish whether international law and/or State practise offer certain guidelines,
if not legal rules, to clarify the relationship between the concepts and determine
whether there is or not a conflict between them. If such a conflict exists, the question
2
Jurisdictional Immunities of the State Case (Germany v. Italy; Greece intervening)
, Judgment of the
International Court of Justice, 3 February 2012.
3
Jurisdictional Immunities of the State Case (Germany v. Italy; Greece intervening),
Counter-Memorial of
Italy, 22 December 2009, paras. 4.67 ff.