CYIL Vol. 4, 2013

ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND JUS COGENS only by a subsequent norm of general international law having the same character”. Its provisions further give jus cogens a priority if a conflict with a treaty lacking the same peremptory nature arises. Given that the scope of the Vienna Convention is limited on the law of treaties, it might erroneously be suggested that the legal effects of peremptory norms do not extend beyond that scope. 16 The effects of peremptory norms, however, are no longer limited to the law of treaties but probably penetrate into the spheres such as international responsibility, 17 creation of States and international protection of human rights, 18 as confirmed by the jurisprudence. 19 The International Tribunal for the former Yugoslavia (hereinafter “ICTY”) was the first international tribunal to pronounce explicitly on jus cogens . 20 Preceded by the criminal tribunal and regional courts 21 the ICJ employed the term of jus cogens and confirmed its primacy over other rules within the international legal order for the first time in 2006 in Armed Activities in Congo, 22 although in its earlier decisions and opinions it referred to erga omnes obligations. 23 Interestingly, a notion of jus cogens 16 On the general debate on further implications of the jus cogens see e.g. Linderfalk, L., The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences? In EJIL 5 (2007), pp. 853-871. 17 See specifically Article 26 of Articles on Responsibility of States for International Wrongful Acts. 18 Un Human Rights Committee in its General Comment No. 24: Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant , CCPR/C/21/Rev.1/Add.6 (1994), asserts that, “Reservations that offend peremptory norms would not be compatible with the object and purpose of the [International] Covenant [on Civil and Political Rights]” (para.8); and “some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character – the prohibition of torture and arbitrary deprivation of life are examples” (para.10). 19 See e.g. the decisions of the International Tribunal for the Former Yugoslavia in case IT-95-17/1-T, Prosecutor v. Furundzija , Judgement of 10 December 1998, p. 317, and of the British House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) , ILR, Vol. 119. Cf. Legality of the Threat or Use of NuclearWeapons , ICJ, Adv. Op., 1996, p. 257, para.79. 20 Prosecutor v. Furundzija , ICTY Case No. IT-95-17/1-T, Judgment of December 10, 1998, at paras.153-154. 21 See Al-Adsani v. The United Kingdom , Application No. 35763/97, Council of Europe: European Court of Human Rights, Judgment of 21 November 2001, paras. 23, 30, 51, 60-65; Ahmed Ali Yusuf et Al Barakaat International Foundation v. Council and Commission, T-306/01, joined with Yassin Abdullah Kadi v. Council and Commission, T-315/01 , European Union: Court of First Instance, Judgment of 21 September 2005, paras. 277-282. 22 Armed Activities on the Territory of Congo , Judgment of 3 February 2006, paras. 64-70; most recently Jurisdictional Immunities Case , Judgement of 3 February 2012, paras. 89-97. 23 See Reservations to Genocide Convention , Adv. Opinion of 28 May 1951, p. 22-24; Barcelona Traction Case , Judgment of 5 February 1970, p. 32, para. 34; Nicaragua Case , Judgment of 27 June 1986, p. 100-101, para. 190; East Timor Case , Judgment of 30 June 1995, p. 102, paras. 28-29; Legality of Threat or Use the Nuclear Arms , Adv. Opinion of 8 July 1996, p. 257-258 (in these, a notion of erga omnes obligation is mentioned rather than a notion of jus cogens ). See also SouthWest Africa case (Second Phase) , ICJ Reports 1966 (Judge Tanaka, Dissenting).