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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
customary law. Further, it is noteworthy that the Vienna Convention, which, despite
not enjoying universal ratification, is still of great importance, provides for the
invalidating effect of
jus cogens
regardless of the nature of rules,
i.e.
regardless of
whether the conflicting rules are substantial or procedural.
Thenormativehierarchyargument hasbeenbroadlyemployed inthe jurisprudence
77
and has found considerable support in scholars’ works.
78
The weakness of this
argument, however, lies in the notion of ‘conflict’. There may be certain difficulties
in determining which of the international norms, and under what circumstances,
are capable of conflict. That such a conflict cannot, in principle, arise among norms
of
jus cogens
themselves seems doubtless.
79
The difficulty lies in the classification of
international rules into substantive and procedural norms, as is impliedly required by
the “procedural/substantial argument” (see below), which allegedly impedes putting
the
jus cogens
and State immunity against each other.
Nevertheless, it has been held several times
80
that merely acknowledging a certain
norm as
jus cogens
and thus recognizing its superior character does not necessarily
give rise to a corresponding right to civil remedy for its violation. Moreover, critics
of the normative hierarchy theory suggest that the existence of a
jus cogens
norm that
would prohibit the granting of immunity for serious breaches of human rights should
necessarily to be proven. Knuchel, for instance, argues
81
that since the prohibition on
torture, as a
jus cogens
norm, is “a primary norm which solely aims at outlawing the
practice of torture … [and] it does not stipulate anything about the ways in which
the rule must be enforced”, the emergence of another peremptory norm that obliges
the forum State to provide victims with civil remedies in such cases (and thus to
lift up the foreign State immunity) would need to occur. Indeed, this view may be
correct at some point; but if it is accepted that a
jus cogens
norm, at least at certain
level of its application, clashes with the rule of State immunity, the primacy of the
jus
cogens
norm must operate. No other international norm may apply in such a way as
to conflict with values protected by a peremptory norm. Orakhelashvili emphasizes.
82
“As soon as peremptory rules can in principle prevail over conflicting rules, acts
and transactions, it is unclear why they cannot take such effect with regard to
sovereign immunity. … Thus, immunities, if and to the extent they exist in
international law, are subject to the operation of the international public order
in the same ways as any other norm is”.
77
See
Al-Adsani
, Diss. Op. of Judge Rozakis
et al.
, at 111-112;
Furundzija
, Judgment, para 155;
Ferrini
,
Court of Cassation of Italy, para. 9;
Prefecture of Voiotia Case
, Greek Court, para. 599.
78
Notably by A. Orakhelashvili, see the cited articles.
79
See the example of the right to use a force in order to realize the right of self-determination mentioned by
the ILC; Report on Fragmentation, para. 367 (“there is no hierarchy between jus cogens norms
inter se
”).
80
See
Bouzari
, Court of Appeal, para. 94.
81
Knuchel,
op. cit.
, p. 160. Similarly Caplan,
op. cit.
, p. 772.
82
Orakhelasvili, A., Peremptory norms, p. 342.