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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
denying any ‘procedural’ element of an immunity rule, or, more precisely denying
a distinction between procedural and substantive norms, one cannot deny that the
question of immunity is
preliminary
in nature, since it is to be considered not later
than the issue of dispute
per se
. However, this preliminary nature does not exclude
judges from the obligation ‘to make a prima facie consideration of the elements of the
case, which may perfectly reflect the gravity of the violations … involved’.
91
3. Ex injuria non oritur jus
This argument is founded on the premise that an act that is
contra lege
and void
cannot produce any legal benefits for the perpetrators. In other words, if an act of
torture or other international crime was committed, it cannot attract immunity for
the wrongdoers even if those are sovereign States. The existence of this principle
within the international law is uncontroversial.
92
Its spirit is encompassed,
inter alia,
in the obligation not to recognize as lawful a situation having resulted from the
breach of
jus cogens
. Article 41(2) of the Articles on Responsibility of States reads as
follow:
“No State shall recognize as lawful a situation created by a serious breach within
the meaning of article 40, nor render aid or assistance in maintaining that
situation”.
The effects of several situations and acts have not been recognized as lawful and
thus able to give rise any legal rights due to this principle.
93
Those who deny the
relevance of the obligation not to recognize the ‘State immunity versus
jus cogens’
issue
often assert that “the acceptance of State immunity from jurisdiction is tantamount
to recognition as lawful the situation produced by the breach of
jus cogens
”,
94
which
also was the Court’s opinion in the
Jurisdictional Immunities
case.
95
However, it must
be underlined that the ‘obligation not to recognize’ has a narrower scope than the
rule
ex injuria
itself. The wording of this rule is clear: it applies to international rules
in general, regardless of their nature, and impedes the very incidence of any possible
legal benefits or rights. The obligation not to recognize is thus an additional rule,
though one probably derived from, or with a basis in, the
ex injuria
principle. It is
linked to the concept of a breach of
jus cogens
, but does not equate to this principle,
which prevents the two concepts from being used interchangeably. If it is accepted
that the rule that no benefit can be received from an illegal act applies generally, and
even more rigorously in the cases where a violation of a peremptory norm is involved,
there is no reasonable ground to refuse its application to the law of State immunity.
91
Espositó, C., p. 5.
92
Generally see Brownlie, p. 509. See also the
Gabčíkovo-Nagymaros Project case
, ICJ Reports, 1997,
pp. 7, 76.
93
See examples cited by Shaw, M.N., International Law (6
th
ed.). Cambridge University Press, 2008,
p. 468.
94
See Moneta, F., State Immunity for International Crimes: The Case of Germany versus Italy before the
ICJ, p. 5.
95
Jurisdictional Immunities case
, para. 93.