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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
only by a subsequent norm of general international law having the same character”.
Its provisions further give
jus cogens
a priority if a conflict with a treaty lacking the
same peremptory nature arises.
Given that the scope of the Vienna Convention is limited on the law of treaties,
it might erroneously be suggested that the legal effects of peremptory norms do not
extend beyond that scope.
16
The effects of peremptory norms, however, are no
longer limited to the law of treaties but probably penetrate into the spheres such
as international responsibility,
17
creation of States and international protection of
human rights,
18
as confirmed by the jurisprudence.
19
The International Tribunal for the former Yugoslavia (hereinafter “ICTY”) was
the first international tribunal to pronounce explicitly on
jus cogens
.
20
Preceded by
the criminal tribunal and regional courts
21
the ICJ employed the term of
jus cogens
and confirmed its primacy over other rules within the international legal order for the
first time in 2006 in
Armed Activities in Congo,
22
although in its earlier decisions and
opinions it referred to
erga omnes
obligations.
23
Interestingly, a notion of
jus cogens
16
On the general debate on further implications of the
jus cogens
see
e.g.
Linderfalk, L., The Effect of Jus
Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences? In
EJIL
5 (2007), pp. 853-871.
17
See specifically Article 26 of Articles on Responsibility of States for International Wrongful Acts.
18
Un Human Rights Committee in its
General Comment No. 24: Issues Relating to Reservations Made
Upon Ratification or Accession to the Covenant or Optional Protocols Thereto, or in Relation to Declarations
under Article 41 of the Covenant
, CCPR/C/21/Rev.1/Add.6 (1994), asserts that, “Reservations that
offend peremptory norms would not be compatible with the object and purpose of the [International]
Covenant [on Civil and Political Rights]” (para.8); and “some non-derogable rights, which in any
event cannot be reserved because of their status as peremptory norms, are also of this character – the
prohibition of torture and arbitrary deprivation of life are examples” (para.10).
19
See
e.g.
the decisions of the International Tribunal for the Former Yugoslavia in case IT-95-17/1-T,
Prosecutor v. Furundzija
, Judgement of 10 December 1998, p. 317, and of the British House of Lords
in
Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3)
,
ILR, Vol. 119. Cf.
Legality of the Threat or Use of NuclearWeapons
, ICJ, Adv. Op., 1996, p. 257, para.79.
20
Prosecutor v. Furundzija
, ICTY Case No. IT-95-17/1-T, Judgment of December 10, 1998, at
paras.153-154.
21
See
Al-Adsani v. The United Kingdom
, Application No. 35763/97, Council of Europe: European Court
of Human Rights, Judgment of 21 November 2001, paras. 23, 30, 51, 60-65;
Ahmed Ali Yusuf et Al
Barakaat International Foundation v. Council and Commission, T-306/01, joined with Yassin Abdullah
Kadi v. Council and Commission, T-315/01
, European Union: Court of First Instance, Judgment of 21
September 2005, paras. 277-282.
22
Armed Activities on the Territory of Congo
, Judgment of 3 February 2006, paras. 64-70; most recently
Jurisdictional Immunities Case
, Judgement of 3 February 2012, paras. 89-97.
23
See
Reservations to Genocide Convention
, Adv. Opinion of 28 May 1951, p. 22-24;
Barcelona Traction
Case
, Judgment of 5 February 1970, p. 32, para. 34;
Nicaragua Case
, Judgment of 27 June 1986,
p. 100-101, para. 190;
East Timor Case
, Judgment of 30 June 1995, p. 102, paras. 28-29;
Legality of
Threat or Use the Nuclear Arms
, Adv. Opinion of 8 July 1996, p. 257-258 (in these, a notion of
erga
omnes
obligation is mentioned rather than a notion of
jus cogens
). See also
SouthWest Africa case (Second
Phase)
, ICJ Reports 1966 (Judge Tanaka, Dissenting).