CYIL Vol. 4, 2013

ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND JUS COGENS A formulation of the substantive/procedural argument was adopted in the Court’s reasoning in the Jurisdictional Immunities case, where the ICJ held: 95. … A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application. Thus, the Court concluded with a statement that jus cogens rules are substantial, while the immunity norms are “procedural in nature”, and therefore no mutual conflict existed. A potential criticism of this approach lies in the recognition that certain rules may produce both substantive and procedural effects, or may not easily be categorized as substantive and “procedural in nature”. Rules on exhaustion of local remedies and on estoppel are good examples. 87 Moreover, some authors even suggest that every peremptory rule “contains or presupposes a procedural rule which guarantees its judicial enforcement”, 88 mainly due to the fact that no central supervisory authority exists to ensure the enforcement, and that therefore jus cogens rules possess a “procedural dimension”. 89 The substantial/procedural argument may be further criticized as too formalistic, while at the same time acknowledging that no rule or principle of international law can stand and function separately. Rather, the various rules should be understood as creating one cohesive system, corpus juris , which cannot produce a status of legal uncertainty; that is, the system will not allow the emergence of a norm having a special status and protecting the most crucial values and at the same time fail to provide for the enforcement of that norm and thus render ineffective the protection of the values embraced therein. Procedural norms are intended to operate so that substantial norms can be realized. Artificially severing these norms would result in the creation of two individual subsystems of one corpus, a situation in which ‘one hand is not aware of what the other is doing’. Orakhelashvili underlines 90 that “international law knows of no straightforward distinction between ‘substantive’ and ‘procedural’ norms” and, by emphasizing the consensus or acceptance between States thanks to which the rules are created, he concludes “there are neither established criteria nor a recognized agency to split them into such categories”. Additionally, while Law (2012), at p. 1008, mentioning an example, when a substantive norm grants A the right to obtain something and a procedural norm totally prevents A from having recourse to the institutional mechanism available for the enforcement of this right. 87 See alsoTalmon, S., at p. 984; and Boudreault, F., at p. 1008, doubting on an unequivocal categorization of the rules on admissibility and jurisdiction. 88 Bartsch, Erbeling, at p. 486. 89 Espositó, C., Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist, In 21 Italian Yearbook of International Law (2011), p. 10 ff. 90 Orakhelashvili, A., State immunity and Hierarchy of Norms, p. 968.