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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
was used by the Permanent Court of International Justice, the predecessor of the ICJ,
namely by one of the judges in his dissenting opinion.
24
To the extent that the existence of
jus cogens
in international law is now generally
accepted, the impact of
jus cogens
on the other international norms, namely those on
State immunity, remains more controversial, and will be elaborated in following part.
III. Relationship between State immunity and
jus cogens
1. International treaties and “treaties in statu nascendi”
As indicated above, the sole convention in force dealing with
jus cogens
or
peremptory norms is the Vienna Convention. That instrument does not contain,
nor was it intended to contain, any provision regarding an attachment of
jus cogens
to
specific norms of international law such as those on immunities. The UN Jurisdictional
Immunities Convention is a treaty not yet in force, and thus not yet an international
treaty in the proper sense. Regardless of whether or not it represents customary
international law, several States have already expressed their consent to be bound by
the Convention in signing (and ratifying) it, which obliges them not to act against
the purpose and object of this treaty.
25
In light of this, and for purposes of the present
article, the Jurisdictional Convention will be treated as an “international treaty
in statu
nascendi
”, and thus its articles will not be prevented from being taken into account.
Further considerations may be made by interpreting the two instruments:
First, Article 53 of the Vienna Convention reads in part as follows: “A treaty
is void if, at the time of its conclusion it conflicts with a peremptory norm of
general international law”, and Article 64 provides: “If a new peremptory norm of
general international law emerges, any existing treaty which is in conflict with that
norm becomes void and terminates”. Applying those provisions to the relationship
between
jus cogens
and State immunity norms, one may admit that, for instance,
rules contained in the Jurisdictional Convention may presumably not conflict with
jus cogens
norms; otherwise they would, since the Convention’s very creation, be void.
In other words, those rules must logically be compatible with norms of a peremptory
nature. Second, one cannot infer from the Jurisdictional Convention’s silence that
the issue is a settled one.
26
Indeed, the notion of
jus cogens
had been mentioned
during the drafting. Although the Working Group of the ILC finally decided, due
24
See
Oscar Chinn case
, PCIJ, Ser. A/B, No. 63 (1934), Judge Schucking (Dissenting, at 341) opinioned:
“I think that the case in which a convention has to be regarded as automatically null and void is not an
entirely isolated case in international law. … And I can hardly believe that the League of Nations would
have already embarked on the codification of international law if it were not possible, even today, to
create a
jus cogens
, the effect of which would be that, once States have agreed on certain rules of law, and
have also given an undertaking that these rules may not be altered by some only of their number, any
act adopted in contravention of that undertaking would be automatically void.”
25
See Art 18 of the Vienna Convention referring to obligation of States not to defeat the object and
purpose of a treaty prior to its entry into force.
26
Knuchel, S., State Immunity and the Promise of Jus Cogens. In
Northwestern Journal of Int Hum Rights
,
Vol. 9 (2011), p. 154.