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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
2. A conflict does not exist (“substantial/procedural” argument)
This argument infers, in reaction to the normative hierarchy, that no conflict
between
jus cogens
and State immunity occurs, since the former is attached to
a substantive rule and the latter to a procedural one.
To verify this statement, one may commence by defining the notion of
‘normative conflict’. The ILC has determined that a conflict of norms arises “where
two norms that are both valid and applicable point to incompatible decisions, so that
a choice must be made between them”.
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No reference to the “category” of norms,
in the sense of differentiation between procedural and substantial, was made. If, for
example, one takes a norm that prohibits acts of torture against the rule that grants to
a State immunity from the jurisdiction of another State, there is not
prima facie
any
evidence of ‘incompatible decisions’: one result does not exclude and contradict the
another. However, if the former norm operates to both prevent acts of torture from
occurring and from going unpunished if they have occurred, the desirable result thus
is to ensure non-impunity of those acts. This may be achieved both by criminalizing
the acts in question and by providing victims with efficient and
realizable
access to
remedies. Simultaneous application of the immunity norm requires a forum State
to grant to another immunity from jurisdiction, and thus obliges it not to obey the
former rule. It is thus clearly visible that, employing the terminology of the ILC, the
two norms “point to incompatible decision” or results and that “a choice must be
made between them”.
On the other hand, Fox argues:
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State immunity is a procedural rule going to the jurisdiction of a national court.
It does not go to substantive law; it does not contradict a prohibition contained
in a jus cogens norm but merely diverts any breach of it to a different method of
settlement. Arguably, then, there is no substantive content in the procedural plea
of State immunity upon which a jus cogens mandate can bite.
Similarly, Talmon asserts that “substantive rules of a
jus cogens
character generally
leave procedural rules unaffected and, in particular, do not automatically override
such rules”.
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This is, however, not always true since, for instance, a rule on State
immunity affects the rule of
jus cogens
by means of barring its enforcement. Even if
one infers that there is no direct conflict between these two in terms of the wording, it
must nonetheless be admitted that a conflict between values and purposes protected
and intended by these norms arises. Thus, a procedural norm can undermine or even
negate substantive rights.
86
83
ILC, Conclusions of the Work of the Study Group on the Fragmentation of International Law,
para. I. 1(2).
84
Fox, H.,
The Law of State Immunity
(2
nd
ed.
.
). Oxford University Press, 2012, p. 525.
85
Talmon, S., Jus Cogens After Germany v. Italy. In: 25
Leiden Journal of International Law
(2012),
p. 987.
86
Boudreault, F., Identifying Conflicts of Norms: The ICJ Approach in the Case of the
Jurisdictional
Immunities of the State (Germany
v.
Italy: Greece Intervening)
, In 25
Leiden Journal of International