CYIL Vol. 4, 2013

ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND JUS COGENS denied or bypassed by any other rule. Employed by several national tribunals 106 and to some extent by the UN International Law Commission, 107 the stumbling block of this interpretation lies on the recognition that such rules, peremptory norms on one side and State immunity rules on another, conflict. International tribunals 108 seem to have a tendency to distinguish between procedural and substantial norms, categorizing State immunity to the former rank, while jus cogens to the latter, and thus purport to exclude any potential conflict between them. This approach has been both criticized and complimented by scholars. One should bear in mind, however, that the international courts are to apply and interpret law as it stands and, while doing so, cannot overlook the practise of several, albeit minority, States. No international treaty or customary source determines whether the rules of jus cogens or of State immunity bear a substantial or procedural feature; and similarly, no legal rule excludes the potentiality of conflict between them. No international rule operates separately, and they all together form a unified system. The contribution of the ICJ’s recent decision in the Jurisdictional Immunities case to the future development of State practise in this regard remains to be seen. The ICJ has pronounced in a significant, unequivocal way, and one may wonder whether this decision will have a regressive impact on the practise of certain States that previously tended to follow the opposite approach. Nevertheless, if it is accepted that the distinction between substantial norms and those that are ‘procedural in nature’ is without prejudice to the incidence of conflict among them, State immunity shall, in terms of normative hierarchy, be put aside in those cases where jus cogens violations are involved. If the opposite is true and there is a real and legal , not only formal and theoretical, classification of substantial and procedural international norms excluding a mutual conflict, then the balance of values should still be traced in the will of States. In other words, the normative approach should simultaneously be applied with the value approach, i.e. those who apply international rules cannot only take into account the format or wording in which the rules are embraced and at the same time disregard the values borne by these. Accordingly, one may conclude that no international rule prevents the incidence of conflict between jus cogens and State immunity; and taking into account the divergent results that the application of both leads to, the practical existence of conflict cannot be denied. It remains problematic that no international rule explicitly pronounces on the relationship between both; or at least, no unequivocal interpretation is attached to the rules separately governing these two concepts. Some guidance may be derived from the Vienna Convention of the Law of Treaties and practise of several States. Thus, which interpretation will be given to the existing rules 106 Von Dardel case, Samantar case , Discrict Court in Princz case (all the U.S.); Pinochet case (UK); Prefecture of Voiotia case (Greece); Ferrini (Italy). 107 See ILC, Report on the Fragmentation, paras. 344 ff. 108 The ICJ in Jurisidictional Immunities case and in Arrest Warrant case and the ECtHR in Al-Adsani (by a very narrow majority).