CYIL Vol. 4, 2013

MICHAELA RIŠOVÁ CYIL 4 ȍ2013Ȏ Although it has beenmaintained that immunity is not tantamount to impunity, 103 the fact that once a claim seeking a remedy for serious violations of human rights is rejected due to the granting of immunity to the alleged perpetrator, the victim may not have any other forum within which to bring the claim and allow justice to be done. 104 If the granting of immunity to a foreign State in the case of a jus cogens violation does not directly lead to de facto impunity 105 then it, at least, generates a direct non-access to justice. This fact regrettably bears a risk of rendering the values common to and recognized by the international community unenforceable. V. Conclusions Much has been written and said about the relationship between State immunity and jus cogens . The issue, however, remains unsettled, as the divergent decisions of both national and international courts, together with the equally heterogeneous opinions of scholars, indicate. The concept of State immunity is much older than the notion of peremptory norms. The latter, having emerged relatively recently, was born as a child of modern international law, where not only the sovereignty of States but also certain common values protecting an individual’s rights represent the core of the international community. Acknowledging that the sources of international law are not so unequivocal in addressing the coexistence of the concepts, and that they thus leave space for the emergence of certain (often contrasting) tendencies within State practise, several decisions in the past decade have exacerbated the debate. Focusing on the relationship between these two concepts from the perspective of international treaties, State practise, jurisprudence of the international courts and academic views, the present research sought to address the questions of whether international law has evolved enough to create certain principles or rules on the interplay of jus cogens and State immunity, and what solutions (or problems) these rules, if they exist, produce. The fact that the Vienna Convention on the Law of Treaties, the sole multilateral treaty in force that governs the legal status of peremptory norms, does not contain any particular or explicit reference to the State immunity, may lead to a premature impression that this source is of no relevance to the issue. The opposite, however, is true. Since the Convention prescribes that a peremptory norm is non-derogable and renders void any conflicting rule of international law, there is no reasonable ground to conclude that it would not affect the rules on State immunity. This premise is theoretically based on the so-called normative hierarchy, which puts jus cogens norms, embracing the obligations erga omnes and protecting the most important values, on the top of the ‘virtual normative pyramid’, leaving below the other, ‘ordinary’, rules. These peremptory norms then enjoy a special primacy, or supremacy, and cannot be 103 Arrest Warrant case , para. 60. 104 See McGregor, L., Torture and State Immunity , p. 908 ff., who discusses the diplomatic protection as a potential remedy. 105 A term used by one of the ICJ judges, Arrest Warrant case , Diss. Op. of Judge van den Wyngaert, para. 34.