CYIL Vol. 4, 2013

MICHAELA RIŠOVÁ CYIL 4 ȍ2013Ȏ was used by the Permanent Court of International Justice, the predecessor of the ICJ, namely by one of the judges in his dissenting opinion. 24 To the extent that the existence of jus cogens in international law is now generally accepted, the impact of jus cogens on the other international norms, namely those on State immunity, remains more controversial, and will be elaborated in following part. As indicated above, the sole convention in force dealing with jus cogens or peremptory norms is the Vienna Convention. That instrument does not contain, nor was it intended to contain, any provision regarding an attachment of jus cogens to specific norms of international law such as those on immunities. The UN Jurisdictional Immunities Convention is a treaty not yet in force, and thus not yet an international treaty in the proper sense. Regardless of whether or not it represents customary international law, several States have already expressed their consent to be bound by the Convention in signing (and ratifying) it, which obliges them not to act against the purpose and object of this treaty. 25 In light of this, and for purposes of the present article, the Jurisdictional Convention will be treated as an “international treaty in statu nascendi ”, and thus its articles will not be prevented from being taken into account. Further considerations may be made by interpreting the two instruments: First, Article 53 of the Vienna Convention reads in part as follows: “A treaty is void if, at the time of its conclusion it conflicts with a peremptory norm of general international law”, and Article 64 provides: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. Applying those provisions to the relationship between jus cogens and State immunity norms, one may admit that, for instance, rules contained in the Jurisdictional Convention may presumably not conflict with jus cogens norms; otherwise they would, since the Convention’s very creation, be void. In other words, those rules must logically be compatible with norms of a peremptory nature. Second, one cannot infer from the Jurisdictional Convention’s silence that the issue is a settled one. 26 Indeed, the notion of jus cogens had been mentioned during the drafting. Although the Working Group of the ILC finally decided, due 24 See Oscar Chinn case , PCIJ, Ser. A/B, No. 63 (1934), Judge Schucking (Dissenting, at 341) opinioned: “I think that the case in which a convention has to be regarded as automatically null and void is not an entirely isolated case in international law. … And I can hardly believe that the League of Nations would have already embarked on the codification of international law if it were not possible, even today, to create a jus cogens , the effect of which would be that, once States have agreed on certain rules of law, and have also given an undertaking that these rules may not be altered by some only of their number, any act adopted in contravention of that undertaking would be automatically void.” 25 See Art 18 of the Vienna Convention referring to obligation of States not to defeat the object and purpose of a treaty prior to its entry into force. 26 Knuchel, S., State Immunity and the Promise of Jus Cogens. In Northwestern Journal of Int Hum Rights , Vol. 9 (2011), p. 154. III. Relationship between State immunity and jus cogens 1. International treaties and “treaties in statu nascendi”