CYIL Vol. 4, 2013

ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND JUS COGENS customary law. Further, it is noteworthy that the Vienna Convention, which, despite not enjoying universal ratification, is still of great importance, provides for the invalidating effect of jus cogens regardless of the nature of rules, i.e. regardless of whether the conflicting rules are substantial or procedural. Thenormativehierarchyargument hasbeenbroadlyemployed inthe jurisprudence 77 and has found considerable support in scholars’ works. 78 The weakness of this argument, however, lies in the notion of ‘conflict’. There may be certain difficulties in determining which of the international norms, and under what circumstances, are capable of conflict. That such a conflict cannot, in principle, arise among norms of jus cogens themselves seems doubtless. 79 The difficulty lies in the classification of international rules into substantive and procedural norms, as is impliedly required by the “procedural/substantial argument” (see below), which allegedly impedes putting the jus cogens and State immunity against each other. Nevertheless, it has been held several times 80 that merely acknowledging a certain norm as jus cogens and thus recognizing its superior character does not necessarily give rise to a corresponding right to civil remedy for its violation. Moreover, critics of the normative hierarchy theory suggest that the existence of a jus cogens norm that would prohibit the granting of immunity for serious breaches of human rights should necessarily to be proven. Knuchel, for instance, argues 81 that since the prohibition on torture, as a jus cogens norm, is “a primary norm which solely aims at outlawing the practice of torture … [and] it does not stipulate anything about the ways in which the rule must be enforced”, the emergence of another peremptory norm that obliges the forum State to provide victims with civil remedies in such cases (and thus to lift up the foreign State immunity) would need to occur. Indeed, this view may be correct at some point; but if it is accepted that a jus cogens norm, at least at certain level of its application, clashes with the rule of State immunity, the primacy of the jus cogens norm must operate. No other international norm may apply in such a way as to conflict with values protected by a peremptory norm. Orakhelashvili emphasizes. 82 “As soon as peremptory rules can in principle prevail over conflicting rules, acts and transactions, it is unclear why they cannot take such effect with regard to sovereign immunity. … Thus, immunities, if and to the extent they exist in international law, are subject to the operation of the international public order in the same ways as any other norm is”. 77 See Al-Adsani , Diss. Op. of Judge Rozakis et al. , at 111-112; Furundzija , Judgment, para 155; Ferrini , Court of Cassation of Italy, para. 9; Prefecture of Voiotia Case , Greek Court, para. 599. 78 Notably by A. Orakhelashvili, see the cited articles. 79 See the example of the right to use a force in order to realize the right of self-determination mentioned by the ILC; Report on Fragmentation, para. 367 (“there is no hierarchy between jus cogens norms inter se ”). 80 See Bouzari , Court of Appeal, para. 94. 81 Knuchel, op. cit. , p. 160. Similarly Caplan, op. cit. , p. 772. 82 Orakhelasvili, A., Peremptory norms, p. 342.