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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
3. International courts
The jurisprudence of international courts and tribunals practically arose in response
to the domestic practise of States, and it thus mostly reflects the factual scenarios of the
respective cases as discussed above. Within the jurisprudence of the ECtHR two cases
are of the most relevance in this regard:
Al-Adsani
62
and
Kalogeropoulou.
63
In the first
case, the ECtHR, by a very narrow majority (9:8), was “unable to discern … [that]
a State no longer enjoys immunity from civil suit in the courts of another State
where acts of torture are alleged”.
64
It based its conclusion on the same argument that
later the ICJ employed in
Jurisdictional Immunities
case,
i.e.
that
jus cogens
related to
substantial norms, while the rules on immunity relate merely to procedural ones.
65
However, equal attention should be given to the Joint Dissenting Opinion of Judges
Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić.
They noted:
66
3. The acceptance therefore of the jus cogens nature of the prohibition of torture
entails that a State allegedly violating it cannot invoke hierarchically lower rules
(in this case, those on State immunity) to avoid the consequences of the illegality
of its actions. … Due to the interplay of the jus cogens rule on prohibition of
torture and the rules on State immunity, the procedural bar of State immunity
is automatically lifted, because those rules, as they conflict with a hierarchically
higher rule, do not produce any legal effect. …
The
Kalogeropoulou
case arose from initial proceedings before Greek courts (see
above). The claimants, after having been unsuccessful on the national level, brought
their claim before the ECtHR, arguing that Greece, by having upheld the immunity
of Germany, violated their right of access to court as enshrined in Article 6 of the
European Human Rights Convention. The Court, however, dismissed their claim,
holding that relying on State immunity against civil proceedings did not breach the
right of access to court.
67
Nevertheless, the Court stressed that, while this statement
reflected the current state of international law, it did “not preclude a development
in customary international law in the future”.
68
The remarkably disparate opinions
within the ECtHR (in the
Al-Adsani
case), together with the fact that the Court
explicitly left open the question of further development of a
jus cogens
exception
to State immunity in the future (in the
Kalogeropoulou
case), may cast doubt upon
62
Al-Adsani v. United Kingdom
[GC], Application No. 35763/97, Judgment of 21 November 2001,
ECtHR.
63
Kalogeropoulou et al. v. Greece and Germany
, Application No. 59021/00, Admissibility Decision of
12 December 2002.
64
Al-Adsani
, Judgment, para. 61.
65
“The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the
national courts’ power to determine the right.” (para. 48)
66
Al-Adsani
, Diss. Op. of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto
and Vajić, para. 3.
67
Kalogeropoulou
, Admissibility Decision, Part D.1 (a).
68
ibid
.