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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
to ongoing controversy in States practise related to this issue, to remove the notion
of peremptory norms from the future Convention, it observed that municipal
courts had shown “some sympathy” for “the argument increasingly put forward
that immunity should be denied in the case of death or personal injury resulting
from acts of a State in a violation of human rights norms having the character of
jus
cogens
”.
27
Some authors describe the failure of the Convention to expressly include
the relationship between State immunity and
jus cogens
as “resulting in regressive
development of international law”.
28
Nevertheless, the Convention itself affirms in
the Preamble “the rules of customary international law continue to govern matters
not regulated by [its] provisions”. Third, the intention of States while signing a treaty
should be taken into account. This intent may be found in interpretative declarations
and reservations made by States to the Jurisdictional Convention. Several States
29
declared that they understood the Convention “without prejudice to any future
international legal development concerning the protection of human rights”; one
of them made an express statement
30
to interpret the effect of Article 12 of the
Convention (that withholds immunity in situations of personal injuries) in terms
of pecuniary compensation for serious human rights violations which are alleged
to be attributable to a State and are committed even outside the State of the forum.
Finally, it must be underlined that State Parties cannot consider the rules on State
immunity embraced in the Convention without due regard to any relevant rules of
international law applicable in the relations between them.
31
2. Customary Law
International custom, a source of international law qualitatively equal to
international treaties, is constituted by a general State practise accepted as law.
32
Such
a practise, visible in the States’ national jurisprudence and, secondarily, domestic
legislation, will be now examined.
33
As to the U.S. practise in this regard, the restricted approach to State immunity
followed by its occasional withholding in cases of serious breaches of international
27
Report of the Working Group on Jurisdictional Immunities of States and Their Property, U.N. Doc.
A/CN.4/SER.A/1999/Add.1 (Part 2).
28
See McGregor, L., State Immunity and Jus Cogens. In ICLQ, Vol. 55 (2006), p. 437.
29
Italy, Norway, Sweden and Switzerland.
30
Switzerland. Text of interpretative declarations available at
http://treaties.un.org/Pages/ViewDetails.
aspx?mtdsg_no=III-13&chapter=3&lang=en [accessed June 15, 2013].
31
See Article 31 (2) (c) of the Vienna Convention.
32
See Art 38 (1) (b) of the Statute of the International Court of Justice.
33
The relevance of national courts decisions to determining the content of customary law is acknowledged
both by theory and international courts. Brownlie, I.,
Principles of Public International Law
(7th ed.),
Oxford University Press, 2008, attributes them an indirect evidential power to determine the practice
of the State, at p. 23. See also Jennings, R. – Watts, A. (eds.), Oppenheim’s International Law (9th ed.),
Longmann, 1992, Vol. 1, pp. 26 and 41. The ICJ itself pronounced in
Jurisdictional Immunities Case
on the significance of domestic decisions in evidencing States practice and
opinio juris.
See
Jurisdictional
Immunities Case
, paras. 55, 77.