CYIL Vol. 4, 2013

MICHAELA RIŠOVÁ CYIL 4 ȍ2013Ȏ On the Author : JUDr.Michaela Rišová is Teaching assistant at Comenius University in Bratislava, Ph.D. candidate at Charles University in Prague. Master of Laws completed at Comenius University in Bratislava (2007), post-graduate education and legal training gained at the Institute of International Relations and Comparative Law in Bratislava (2007–2009), University of René Descartes in Paris (2010–2011), the International Law Seminar at the UN International Law Commission in Geneva (2012) and The Hague Academy of International Law (2013). Co-author of three textbooks and of the first Slovak translation of Brownlie’s Principles. Research focus on jus cogens, international security, human rights and diplomatic law. Member of the Slovak Society for International Law, of the European Society of International Law and of the Slovak Committee for UNICEF. I. Introduction In February 2012 the International Court of Justice handed down its judgment in Jurisdictional Immunities case, settling the dispute between Germany and Italy. 2 The dispute arose when Italian national courts denied Germany sovereign immunity by allowing civil claims brought against the latter for alleged violations of international humanitarian law during the Second World War. One of primary arguments submitted by Italy was that jus cogens norms prevail over rules on immunity, and that therefore State immunity cannot be invoked to preclude action against a State alleged to have committed acts violating jus cogens norms. 3 The judgment was highly anticipated as an opportunity for the Court to clarify the legal position regarding the coexistence and potential conflict between the principle of sovereign immunity, on the one hand, and the primacy of jus cogens norms, on the other . This case has reopened debate among scholars on the existence of a normative hierarchy in international law, and in particular, on the question of normative conflict and potential solutions thereto. The controversy that continues to surround these issues, both in theory and practise, reflects the uncertainty of the concept of jus cogens . Though the existence of jus cogens norms is now seldom disputed, the legal effects they may produce on other international norms remains in question. In this paper, the author discusses the relationship between peremptory norms and rules on State immunity, by examining the impact of jus cogens on the law of State immunity. Mainly, it focuses on the question whether there is a clash between these two and if so, whether international law provides rules to solve this conflict. It critically addresses the arguments employed by States, tribunals and scholars in order to establish whether international law and/or State practise offer certain guidelines, if not legal rules, to clarify the relationship between the concepts and determine whether there is or not a conflict between them. If such a conflict exists, the question 2 Jurisdictional Immunities of the State Case (Germany v. Italy; Greece intervening) , Judgment of the International Court of Justice, 3 February 2012. 3 Jurisdictional Immunities of the State Case (Germany v. Italy; Greece intervening), Counter-Memorial of Italy, 22 December 2009, paras. 4.67 ff.