ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
A formulation of the substantive/procedural argument was adopted in the
Court’s reasoning in the
Jurisdictional Immunities
case, where the ICJ held:
95. … A jus cogens rule is one from which no derogation is permitted but
the rules which determine the scope and extent of jurisdiction and when that
jurisdiction may be exercised do not derogate from those substantive rules which
possess jus cogens status, nor is there anything inherent in the concept of jus cogens
which would require their modification or would displace their application.
Thus, the Court concluded with a statement that
jus cogens
rules are substantial,
while the immunity norms are “procedural in nature”, and therefore no mutual
conflict existed.
A potential criticism of this approach lies in the recognition that certain rules may
produce both substantive and procedural effects, or may not easily be categorized as
substantive and “procedural in nature”. Rules on exhaustion of local remedies and
on estoppel are good examples.
87
Moreover, some authors even suggest that every
peremptory rule “contains or presupposes a procedural rule which guarantees
its judicial enforcement”,
88
mainly due to the fact that no central supervisory
authority exists to ensure the enforcement, and that therefore
jus cogens
rules
possess a “procedural dimension”.
89
The substantial/procedural argument may be further criticized as too formalistic,
while at the same time acknowledging that no rule or principle of international law
can stand and function separately. Rather, the various rules should be understood
as creating one cohesive system,
corpus juris
, which cannot produce a status of legal
uncertainty; that is, the system will not allow the emergence of a norm having
a special status and protecting the most crucial values and at the same time fail to
provide for the enforcement of that norm and thus render ineffective the protection
of the values embraced therein. Procedural norms are intended to operate so that
substantial norms
can
be realized. Artificially severing these norms would result in the
creation of two individual subsystems of one corpus, a situation in which ‘one hand is
not aware of what the other is doing’. Orakhelashvili underlines
90
that “international
law knows of no straightforward distinction between ‘substantive’ and ‘procedural’
norms” and, by emphasizing the consensus or acceptance between States thanks
to which the rules are created, he concludes “there are neither established criteria
nor a recognized agency to split them into such categories”. Additionally, while
Law
(2012), at p. 1008, mentioning an example, when a substantive norm grants A the right to
obtain something and a procedural norm totally prevents A from having recourse to the institutional
mechanism available for the enforcement of this right.
87
See alsoTalmon, S., at p. 984; and Boudreault, F., at p. 1008, doubting on an unequivocal categorization
of the rules on admissibility and jurisdiction.
88
Bartsch, Erbeling, at p. 486.
89
Espositó, C., Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice:
A Conflict Does Exist, In 21
Italian Yearbook of International Law
(2011), p. 10 ff.
90
Orakhelashvili, A., State immunity and Hierarchy of Norms, p. 968.