99 / 350
ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
While recognizing that the breaches of peremptory norms do not attract immunity,
the Greek courts employed this argument in the
Prefecture of Voiotia
case.
96
4. The qualification argument
97
The qualification argument relies on the distinction between
acta jure imperii
and
acta jure gestionis
: it maintains that acts of State violating
jus cogens
cannot be seen as
sovereign acts of State and therefore are not linked to immunity.
98
On the weakness
of this argument, Knuchel explains
99
that “the abuse of sovereign prerogatives …
does not in itself transform sovereign acts into
acta jure gestionis
; such abuse is still
performed in pursuance of the State’s governmental authority”. The jurisprudence,
however, is not so definite: the ICJ in
Arrest Warrant
case excluded certain conduct,
amounting to an international crime, from the category of official acts susceptible to
immunity.
100
5. The “last resort” argument
The last resort argument, usually employed in combination with one of
previous ones, purports to prevent violations of
jus cogens
from going unpunished
and unsettled. The rationale of this argument was well formulated by Italy in the
Jurisdictional Immunities
case. In its Counter Memorial, Italy argued that, under
those circumstances where all remedies were unavailable to victims or had been
refused, the Italian courts could not overlook the necessity of avoiding impunity, and
that therefore the exercise of jurisdiction was “necessary as a measure of last resort”.
101
The ICJ, however, understood this argument as relating to the general obligation to
make reparation and concluded:
100. … whether a State is entitled to immunity before the courts of another
State is a question entirely separate from whether the international responsibility
of that State is engaged and whether it has an obligation to make reparation.
Pavoni suggests:
102
It is submitted that a reasonable balance between the competing interests …
is achieved when it can be shown that the victims of gross violations of human
rights may be or have been granted remedies and reparation for the damage
sustained. This seems an inescapable imperative of contemporary international
law. Hence, a grant of State immunity should be conditional upon the existence
of … remedies alternative to those available in the forum state.
96
At p. 595, 599. And also Lord Millett in
Pinochet case
, p. 279.
97
A term used by Knuchel, p. 164.
98
See Knuchel, p. 164, Caplan, pp. 774-775.
99
Knuchel,
ibid
,, p. 165.
100
Arrest Warrant case
, paras. 227, 228.
101
Counter-Memorial of Italy, para. 6.26; see also Judgment, para. 80.
102
Pavoni, R.: Human Rights and the Immunities of Foreign States. In De Wet, E. – Vidmar, J. (eds.):
Hierarchy in International Law: The Place of Human Rights
. Oxford University Press, 2012, at p. 91.