CYIL Vol. 4, 2013

MICHAELA RIŠOVÁ

CYIL 4 ȍ2013Ȏ

3. International courts The jurisprudence of international courts and tribunals practically arose in response to the domestic practise of States, and it thus mostly reflects the factual scenarios of the respective cases as discussed above. Within the jurisprudence of the ECtHR two cases are of the most relevance in this regard: Al-Adsani 62 and Kalogeropoulou. 63 In the first case, the ECtHR, by a very narrow majority (9:8), was “unable to discern … [that] a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged”. 64 It based its conclusion on the same argument that later the ICJ employed in Jurisdictional Immunities case, i.e. that jus cogens related to substantial norms, while the rules on immunity relate merely to procedural ones. 65 However, equal attention should be given to the Joint Dissenting Opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić. They noted: 66 3. The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions. … Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity, the procedural bar of State immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal effect. … The Kalogeropoulou case arose from initial proceedings before Greek courts (see above). The claimants, after having been unsuccessful on the national level, brought their claim before the ECtHR, arguing that Greece, by having upheld the immunity of Germany, violated their right of access to court as enshrined in Article 6 of the European Human Rights Convention. The Court, however, dismissed their claim, holding that relying on State immunity against civil proceedings did not breach the right of access to court. 67 Nevertheless, the Court stressed that, while this statement reflected the current state of international law, it did “not preclude a development in customary international law in the future”. 68 The remarkably disparate opinions within the ECtHR (in the Al-Adsani case), together with the fact that the Court explicitly left open the question of further development of a jus cogens exception to State immunity in the future (in the Kalogeropoulou case), may cast doubt upon 62 Al-Adsani v. United Kingdom [GC], Application No. 35763/97, Judgment of 21 November 2001, ECtHR. 63 Kalogeropoulou et al. v. Greece and Germany , Application No. 59021/00, Admissibility Decision of 12 December 2002. 64 Al-Adsani , Judgment, para. 61. 65 “The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts’ power to determine the right.” (para. 48) 66 Al-Adsani , Diss. Op. of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, para. 3. 67 Kalogeropoulou , Admissibility Decision, Part D.1 (a). 68 ibid .