84 / 350
MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
law a tendency to restrict the cases in which a State may claim immunity before
foreign courts”
8
and has prescribed in several provisions those cases in which
a contracting State cannot claim immunity. Such a legislative technique may imply
that State immunities applies unless one of the situations expressly included in the
Basel Convention is involved. The UN International Law Commission had also been
working on the topic of State immunities several decades,
9
which resulted, in 2004,
in the adoption of the UN Convention on Jurisdictional Immunities of States and
their Property (hereinafter “the Convention”).
10
Similarly to the previous instrument,
the Convention enumerates situations in which a State Party cannot claim immunity
before a court of foreign State. Contrastingly, however, an explicit general recognition
of jurisdictional immunity as a principle of international customary law is provided.
11
2. Concept of jus cogens
The concept of
jus cogens
emerged out of “the recognition that certain values or
interests are common to and affect the international community as a whole and that
the violation of these values or interests threatens peace, security and world order”.
12
The existence of imperative or peremptory norms in the current international law
is generally not contested,
13
at least not by those States who signed and ratified
the Vienna Convention on the Law of Treaties (“Vienna Convention”),
14
the sole
international convention in force expressly mentioning
jus cogens
(peremptory
norms).
15
Its Article 53 defines a peremptory norm of general international law
as “a norm accepted and recognized by the international community of States as
a whole as a norm from which no derogation is permitted and which can be modified
8
ibid.
, Preamble.
9
In 1977 the UN GA first proposed that the ILC look at the issue, and in 1999 the Working Group on
Jurisdictional immunities of States and their property within the ILC was established.
10
Adopted by the General Assembly of the United Nations on 2 December 2004.
Not yet in force. By now, twenty-eight States have signed and fourteen States have ratified the Convention,
which requires 30 ratifications to enter into force.
11
In its Preamble the Convention considers that the jurisdictional immunities of States and their property
are generally accepted as a principle of customary international law; and Article 5 prescribes, „a State
enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State
subject to the provisions of the present Convention”.
12
McGregor, L., Addressing the Relationship between State Immunity and Jus Cogens Norms:
A Comparative Assessment, In: Kaleck
et al
. (eds.):
International Prosecution of Human Rights Crimes
.
New York: Springer, 2007, p. 70.
13
See Kelsen, H.,
Principles of International Law
(3
rd
ed
.
). New York: Holt, Rinehart & Winston, 1967;
Tunkin, Jus Cogens in Contemporary International Law. In 3 Univ. of
Toledo Law Review
(1971),
pp. 107-118; Hannikainen, L., Peremptory Norms (
jus cogens
) in International Law: Historical
Development, Criteria, Present Status (1998).
14
Vienna Convention on the Law of Treaties, UNTS 1969. As of May 2013 there are 113 State Parties
to the Convention.
15
Another instrument explicitly employing this term is expected for instance in the Articles of
Responsibility of States for Internationally Wrongful Acts. Text adopted by the International Law
Commission at its 53rd session, in 2001, and submitted to the General Assembly as a part of the
Commission’s report covering the work of that session (A/56/10).