CYIL Vol. 4, 2013

MICHAELA RIŠOVÁ CYIL 4 ȍ2013Ȏ denying any ‘procedural’ element of an immunity rule, or, more precisely denying a distinction between procedural and substantive norms, one cannot deny that the question of immunity is preliminary in nature, since it is to be considered not later than the issue of dispute per se . However, this preliminary nature does not exclude judges from the obligation ‘to make a prima facie consideration of the elements of the case, which may perfectly reflect the gravity of the violations … involved’. 91 3. Ex injuria non oritur jus This argument is founded on the premise that an act that is contra lege and void cannot produce any legal benefits for the perpetrators. In other words, if an act of torture or other international crime was committed, it cannot attract immunity for the wrongdoers even if those are sovereign States. The existence of this principle within the international law is uncontroversial. 92 Its spirit is encompassed, inter alia, in the obligation not to recognize as lawful a situation having resulted from the breach of jus cogens . Article 41(2) of the Articles on Responsibility of States reads as follow: “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation”. The effects of several situations and acts have not been recognized as lawful and thus able to give rise any legal rights due to this principle. 93 Those who deny the relevance of the obligation not to recognize the ‘State immunity versus jus cogens’ issue often assert that “the acceptance of State immunity from jurisdiction is tantamount to recognition as lawful the situation produced by the breach of jus cogens ”, 94 which also was the Court’s opinion in the Jurisdictional Immunities case. 95 However, it must be underlined that the ‘obligation not to recognize’ has a narrower scope than the rule ex injuria itself. The wording of this rule is clear: it applies to international rules in general, regardless of their nature, and impedes the very incidence of any possible legal benefits or rights. The obligation not to recognize is thus an additional rule, though one probably derived from, or with a basis in, the ex injuria principle. It is linked to the concept of a breach of jus cogens , but does not equate to this principle, which prevents the two concepts from being used interchangeably. If it is accepted that the rule that no benefit can be received from an illegal act applies generally, and even more rigorously in the cases where a violation of a peremptory norm is involved, there is no reasonable ground to refuse its application to the law of State immunity. 91 Espositó, C., p. 5. 92 Generally see Brownlie, p. 509. See also the Gabčíkovo-Nagymaros Project case , ICJ Reports, 1997, pp. 7, 76. 93 See examples cited by Shaw, M.N., International Law (6 th ed.). Cambridge University Press, 2008, p. 468. 94 See Moneta, F., State Immunity for International Crimes: The Case of Germany versus Italy before the ICJ, p. 5. 95 Jurisdictional Immunities case , para. 93.