Czech Yearbook Vol. 4 2013

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MICHAELA RIŠOVÁ CYIL 4 ȍ2013Ȏ
law may generally be found. In certain cases the U.S. jurisprudence primarily shows
that the immunity does not apply “where the foreign State defendant has acted in
clear violation of international law”,34 or, State immunity should be understood as
having been waived by implication in such cases35 or, at least, leaves open the question
whether there might be an exception in customary international law, derived from
the jus cogens nature of the prohibition of torture.36 In other cases, a different opinion
was expressed.37 In the Princz 38 case, where Mr. Princz, an American citizen, sued
Germany for his injuries suffered in a concentration camp during the Second World
War, the District Court first denied immunity on the basis of implied waiver by
Germany, and the reversal of this decision by the Court of Appeal was highly criticized
by the doctrine.39 The recent judgment in the Samantar 40 case, where immunity of
a former high-ranking Somali official was in question, shows a tendency to deny
immunity to foreign officials for jus cogens violations, even if the acts are performed in
the defendant’s official capacity. With regards to the legislative framework, since 1976
the issue of foreign State immunities has been governed by the Foreign Sovereign
Immunities Act (FSIA). This employs the restricted approach and enumerates several
exceptions where State immunity is not granted; the jus cogens notion, however, has
not been included.41
Canadian courts have had a more clear-cut approach. In the Bouzari 42 case the
plaintiff sought reparation for injuries resulting from torture, allegedly committed
by Iranian state officials. The Ontario Court of Appeal strictly applied the Canadian
34 Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246, District Court of Columbia, 1985.
35 Siderman de Blake v. Republic of Argentina, 965 F. 2d 699, 9th Circuit Court of Appeals, 1992.
36 ibid., p. 718.
37 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, U.S. Supreme Court, 1989. On
a critical discussion on that case see Potesta, M., State Immunity and Jus Cogens Violations: The Alien
Tort Statute Against the Backdrop of the Latest Developments in the ‘Law of Nations’. In 28 Berkeley
Journal of International Law 2010, pp. 571-586.
38 Princz v. Federal Republic of Germany, 26 F. 3rd 1166, Court of Appeals for the District of Columbia
Circuit, 1995. On scholar’s view see Reinmann, M., A Human Rights Exception to Sovereign
Immunity: Some Thoughts on Princz v. Federal Republic of Germany. In: 16 Michigan Journal of
International Law (1995), p. 422.
39 See Johnson, T. A., A Violation of Jus Cogens as an Implicit Waiver of Immunity Under the Federal
Sovereign Immunities Act. In 19 Maryland Journal of International Law (1995), pp. 259-291.
40 Yousuf v. Samantar, 4th Circuit Court, case No. 11-1479 (2012). Comment on this Judgment
by Wuerth, I., Guest Post: Immunity – Separation of Powers, Human Rights Cases and Yousuf
v. Samantar, available at: -
human-rights-cases-and-yousuf-v-samantar/ [accessed on 10 June 2013].
41 Exceptions relate to cases where immunity has been waived explicitly or by implication, to commercial
activities, real property and estates, maritime property and partially to foreign expropriations. Despite
the absence of explicit reference to jus cogens, by its legislation the U.S. has set a non-immunity rule
for certain violations of peremptory norms. The limiting point, however, is, that these claims are only
admissible against a State “designated as a State sponsor of terrorism”. See §1605(a)(7) of the FSIA. As
of June 2013 four States were listed as such by the U.S. Department of State, namely Cuba, Iran, Sudan
and Syria. See [accessed on 10 June 2013].
42 Bouzari v. Islamic Republic of Iran [2004] OJ No. 2800 Docket No. C38295.