Thesis International and European Law: Public International Law Graduate School of Law
State Immunity & Jus Cogens
A legal assessment of scholarly critique on the ICJ Jurisdictional Immunities of the State case.
Author mr. R.J. (Roderik) Tukker Email address roderik_tukker@msn.com Student number 11031794
Mastertrack Public International Law Supervisor mw. dr. R. van Alebeek
Date 24 July 2020
Word count ± 12.600
Abstract
In this paper I set out the judgment on State immunity and jus cogens by the ICJ in the Jurisdictional Immunities of the State case. I make use of descriptive and evaluative research by means of library sources. The aim of my research is to provide an overview of the criticism of the judgment and my rebuttal thereof.
The ICJ held that jus cogens violations cannot conflict with the concept of State immunity because they address different matters. Jus cogens concerns a substantive bar, while State immunity is of a procedural nature. Legal scholars have been critical of this distinction and argued that the Court should have rendered a different judgment by pointing out the errors in the Court’s judgment.
The concepts of State immunity and jus cogens are discussed to provide a concise overview of the origins of the concepts and how they operate in contemporary international law. Immunity must be granted to a State for acts that have been carried out in an official capacity, jure imperii, while acts of a commercial nature, jure gestionis, are not covered by immunity. Jus cogens are rules of international law that possess a higher status than other rules of international law, such as the prohibition of genocide and the prohibition of torture. The violation of jus cogens rules can bring about legal consequences for a State.
Legal critics have presented arguments, such as improper use of case law and legally deficient argumentation, that were aimed at proving the ICJ’s judgment on State immunity and jus cogens wrong. In this paper, I analysed and rebutted those arguments by reference to the ICJ judgment and the legal framework of State immunity and jus cogens as described above. The analysis of the judgment provides for an interesting discussion on the subject.
Table of contents
Abstract 1
Table of contents 2
List of abbreviations 4
Introduction 5
1. Overview of the concept of State immunity in international law 7
§ 1.1. Introduction 7
§ 1.2. From absolute immunity to restrictive immunity 7
§ 1.3. Acta jure imperii & acta jure gestionis 10
§ 1.4. Scope & application 11
§ 1.5. Conclusion 11
2. Jus cogens (peremptory norms) 12
§ 2.1. Introduction 12
§ 2.2. History of jus cogens 12
§ 2.3. Theoretical framework 13
§ 2.4. Jus cogens in ICJ case law 16
§ 2.5. Conclusion 17
3. ICJ Germany v. Italy 18
§ 3.1. Introduction 18
§ 3.2. Merits 18
§ 3.3. Conflict between jus cogens and State immunity 21
§ 3.4. Decision 22
§ 3.5. Dissenting opinions 22
§ 3.6. Conclusion 23
4. Legal criticism of Court judgment 24
§ 4.1. Introduction 24
§ 4.2. State consent during written proceedings 24
§ 4.3. Proportionality test 25
§ 4.4. ICJ case law 25
§ 4.5. De lege lata & de lege ferenda 27
§ 4.6. Normative hierarchy theory 27
§ 4.7. Procedural/substantive rule distinction 28
§ 4.8. Conclusion 30
5. Legal analysis of criticism 31
§ 5.2. State consent during written proceedings 31
§ 5.3. Proportionality test 32
§ 5.4. ICJ case law 33
§ 5.5. De lege lata & de lege ferenda 34
§ 5.6. Normative hierarchy theory 34
§ 5.7. Procedural/substantive rule distinction 35
§ 5.8. Venus vs. Mars 37
§ 5.9. Conclusion 37
6. Conclusion 38
Bibliography of primary sources 40
Table of cases 40
Table of legislation 41
Bibliography of secondary sources 42
Books 42
Articles 42
List of abbreviations
ARSIWA Articles on the Responsibility of States for Internationally Wrongful Acts ECtHR European Court of Human Rights
FSIA Foreign Sovereign Immunities Act of 1976
Genocide Convention Convention on the Prevention and Punishment of the Crime of Genocide Germany Federal Republic of Germany
ICJ / Court International Court of Justice ILC International Law Commission
Italy Italian Republic
SIA State Immunity Act 1978
SR Special Rapporteur
UK United Kingdom
UN United Nations
UN Convention UN Convention on Jurisdictional Immunities of States and Their Property
US United States of America
Introduction
Background
On 3 February 2012, the International Court of Justice rendered its judgment in the Jurisdictional Immunities of the State case, which involved a dispute between Germany and Italy whereby Germany requested the Court to declare that Italy had failed to respect the jurisdictional immunity which Germany enjoys under international law. In its judgment, the ICJ upheld Germany’s request, which was met with widespread acclaim as well as criticism from the international plane. Some legal scholars had hoped that the ICJ would rule on a possible exception to State immunity in cases of gross human rights violations, or jus cogens violations. Arguments against the decision were primarily based on the notion that the ICJ ruled too formalistic and conservative, but can these arguments be considered legally sound?
Problem statement
In a time where human rights are becoming more and more important for the world population and societies are changing at a fast pace, the question arises why the ICJ accorded State immunity to Germany in its judgment even though Germany committed serious human rights violations during the Second World War. It has been said that the ICJ ruled too conservative and formalistic, and therefore stopped the development of human rights in international law. However, can that criticism be rebutted? This research paper will make use of a research statement, rather than a research question, and reads as follows:
This paper will provide the theoretical framework for the concepts of State immunity and jus cogens in international law. The ICJ, in the Jurisdictional Immunities of the State judgment, held that no conflict exists between the grant of State immunity and jus cogens violations. Legal arguments against the decision on a possible conflict will be presented and thoroughly analysed. The aim of this paper is to provide a legal discussion and rebuttal of the aforementioned arguments from the writer’s perspective on the law of State immunity and jus cogens.
I will analyse the ICJ ruling and focus on the Court’s discussion of State immunity and jus cogens violations in particular, other aspects of the judgment will be left out of consideration as these aspects are irrelevant to my research.
Layout
Every chapter will start with a brief introduction, with a characterisation of the applicable methodology, in which the applicable sub-question will be addressed. In Chapter 1, an overview will be provided of the concept of State immunity, such as its origin and its content. In Chapter 2, the concept of jus cogens, also known as peremptory norms, will be discussed. In Chapter 3, a closer look will be taken at the ICJ Jurisdictional Immunities of the State judgment. The merits of the case and ruling on State immunity and jus cogens violations will be thoroughly discussed, as well as the dissenting opinions. In Chapter 4, the legal criticism that is written in response to the Court’s ruling on jus cogens and State immunity will be set forth. Finally, Chapter 5 will consist of a thorough analysis of the aforementioned criticism. The arguments set forth in the preceding Chapter 4 will be analysed from my perspective on international law. The thesis will be concluded with a concise overview of all my findings.
Research methods & methodology
For this thesis, the primary research method has been by use of library research to answer my research question. The ICJ Jurisdictional Immunities of the State judgment is the leading document and the reason for the research. Other case law, along with articles from legal scholars and writers, and handbooks, will be necessary components for my findings. With regard to methodology, the research will be of a descriptive and evaluative character. The core concepts around the Jurisdictional Immunities of the State judgment will be looked at, which will be of a descriptive character, while the analysis and rebuttal of the arguments against the decision will be of an evaluative character.
1. Overview of the concept of State immunity in international law
§ 1.1. Introduction
This chapter will cover the concept of State immunity in international law. First, the origin of immunity will be discussed where the emphasis will be on the rationale behind the concept. After that, the scope and application of State immunity will be addressed. Hence, this chapter will be of a descriptive character. The applicable sub-question is: What is (jurisdictional) State immunity in international law?
§ 1.2. From absolute immunity to restrictive immunity
The concept of State immunity is based on the principle of par in parem non habet imperium, a concept that can be traced back to 1354. A sovereign State cannot be impleaded before a 1 foreign court without its consent, because every State is equal under international law and States simply cannot exercise jurisdiction over one another. 2
In general, the origin of the concept of State immunity in the common law tradition can be traced back to the American The Schooner Exchange v. McFaddon case. This case dealt with a 3 French naval vessel that was docked in the port of Philadelphia. The libellants brought a claim for repairs before a United States (hereinafter: US) court, alleging that the vessel had been sailing under the US flag before it was seized by France and renamed. The Supreme Court held that it had no jurisdiction over the matter as they agreed with Chief Justice Marshall’s opinion that
this perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a
1Peter-Tobias Stoll, 'State Immunity' [2011] Max Planck Encyclopedias of International Law <DOI:10.1093/law:epil/9780199231690/e1106> accessed 26 June 2020, §4.
2Alexander Orakhelashvili, Peremptory norms in international law (Oxford University Press 2008), p. 322. 3The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).
part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation. 4
This concept of absolute immunity was upheld in case law regarding State vessels for a significant period of time, especially in the United Kingdom (hereinafter: UK). Two later cases extended the concept. First, the UK Court of Appeal embraced absolute immunity from foreign jurisdiction in The Parlement Belge case. When the case reached the Court of Appeal, the judges ruled they had no jurisdiction as absolute immunity from foreign jurisdiction extended to all ships in possession of a foreign State, regardless of the capacity – public or private – in which these ships sailed. The second case concerned the vessel Christine, a vessel owned by a5 Spanish company that sailed under the Spanish flag. The case was brought before a UK court where the Spanish government argued to dismiss the case in view of its sovereign immunity. 6 Lord Atkin delivered the final ruling and stated that absolute immunity was to be granted on two bases. Namely, the courts of a State could not implead a foreign State and immunity was not limited to ownership. 7
During the same period, the US saw a different approach emerging to the concept of absolute immunity from foreign jurisdiction as a result of two US Supreme Court cases also involving State vessels. Immunity was not granted in relation to vessels that were State-owned but not in possession nor in control of that State. These cases resulted in a change of attitude regarding 8 State immunity. In 1952, Jack B. Tate, Acting Legal Advisor to the US State Department, sent a letter to the Attorney General of the US announcing his intent to abandon the recognised concept of absolute immunity. As a result, the US saw the introduction of the concept of 9 restrictive immunity in its case law in 1967, when the Supreme Court ruled that mere
4The Schooner Exchange (n 3), at 137.
5The Parlement Belge (1879-1890) 5 Prob Div 197 (CA).
6Compania Naviera Vascongado v. Steamship “Cristina” and Persons Claiming an Interest therein (“The Cristina”), [1938] A.C. 485.
7“The Cristina” (n 6), at 490.
8In this regard: Ex parte Republic of Peru, 318 U.S. 578 (1943) & Republic of Mexico v. Hoffman, 324 U.S. 30 (1945).
9Jack B Tate, “Changed Policy Concerning the Granting of Sovereign Immunity to Foreign Governments” 26 Department of State Bulletin 984 (1952).
commercial transactions of a foreign State would no longer be protected by immunity. Shortly 10 after, the US introduced the Foreign Sovereign Immunities Act of 1976 (hereinafter: FSIA). 11
The UK followed the same pattern of change after the Court of Appeal ruled on the Trendtex case. Lord Denning held that international law no longer accepted the doctrine of absolute12 immunity as a sovereign State, over the preceding decades, engaged in commercial activities. 13 Lord Denning further acknowledged that international law had seen a shift to the doctrine of restrictive immunity whereby governmental activities will be protected by immunity ( acta jure imperii), but where commercial activities by governments will not (acta jure gestionis). More 14 on these two concepts in the next paragraph. As a result, the UK introduced the State Immunity Act 1978 (hereinafter: SIA) which codified, just as the FSIA of 1976 did, the doctrine of15 restrictive immunity in the UK.
In the civil law tradition, a different evolution with regard to State immunity took place during the course of international law’s history. In 1980, Special Rapporteur (hereinafter: SR) to the International Law Commission (hereinafter: ILC), Sucharitkul wrote his Second report on jurisdictional immunities of States and their property, a document which provided an insight 16 into the doctrine of restrictive immunity in Europe. Sucharitkul concluded that civil law countries, such as France, Italy, and Belgium, had recognised and applied the doctrine of State immunity as early as the nineteenth century. In contrast to the common law tradition, the civil 17 law tradition introduced State immunity as a means to identify the competence of a court. Sucharitkul concluded in 1980 that there was little doubt that the principle of State immunity had been established as a norm of customary international law. 18
10Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976).
11United States, Congress, Public Law 94-583, Foreign Sovereign Immunities Act of 1976, Government Printing Office, 1976, 94th Congress.
12Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 QB 529. 13Trendtex Trading Corporation v. Central Bank of Nigeria (n 12), at 366. 14Trendtex Trading Corporation v. Central Bank of Nigeria (n 12), at 366. 15State Immunity Act 1978, c. 33.
16Sompong Sucharitkul, Second report on jurisdictional immunities of States and their property, A/CN.4/331 and Add.1.
17Sucharitkul (n 16) at §77-82, p. 218. 18Sucharitkul (n 16) at §90, p. 221.
§ 1.3. Acta jure imperii & acta jure gestionis
As mentioned in the preceding paragraph, the doctrine of restrictive immunity applies in contemporary international law which entails a distinction between acts of a State that fall under the scope of State immunity and acts that do not.
Before the distinction between the different acts of State can be made and the concept of State immunity can be applied, it needs to be determined whether an act has been performed by an entity that falls under the scope ‘State’. When an act has been performed by an organ or entity19 which can be considered an act of State, a clear distinction is to be made between acta jure imperii and acta jure gestionis in order to assess the recourse to State immunity. This distinction is essential as acts of a sovereign nature ( jure imperii) are immune to foreign jurisdiction, while acts of a non-sovereign nature ( jure gestionis) are not. For the latter concept, a State acts as if it were an ordinary legal person, these acts are usually of a commercial nature. 20
Acta jure gestionis are summarised by the United Nations (hereinafter: UN) in the UN Convention on Jurisdictional Immunities of States and Their Property21 (hereinafter: UN Convention), which closely resembles the UK’s SIA. Part III of the UN Convention cover the acts where immunity cannot be invoked, they include acts that consists of (1) commercial transactions , (2) contracts of employment , (3) ownership, possession and use of property ,22 23 24 (4) intellectual and industrial property , (5) participation in companies or other collective25 bodies , and (6) ships owned or operated by a State. It must be mentioned that this list can be26 27 considered to be one of many approaches to the concept of acta jure gestionis. The nature of
19Gleider Ignacio Hernández, International Law (Oxford University Press 2019), §9.3.1, p. 224-225.
20In this regard, see Special Rapporteur Sucharitkul’s discussion of the distinctions drawn between acts to which State immunity is applicable and acts to which it is not, in: Sompong Sucharitkul, Fourth report on jurisdictional immunities of States and their property, A/CN.4/357 and Corr.1, §35-51 on p. 208-212.
21UN General Assembly, United Nations Convention on Jurisdictional Immunities of States and Their Property (UN Convention), 2 December 2004, A/RES/59/38.
22UN Convention (n 21), Article 10. 23UN Convention (n 21), Article 11. 24UN Convention (n 21), Article 13. 25UN Convention (n 21), Article 14. 26UN Convention (n 21), Article 15. 27UN Convention (n 21), Article 16.
the transaction is considered the decisive criterion for an acta jure gestionis. The purpose of a28 transaction can also be taken into account if the parties have so agreed or if the purpose is relevant for the determination of the act.29 It must be added that the summary of the aforementioned six acts disregards the possible exceptions that can exist, as this summary is only to provide a brief overview of acta jure gestionis.
Acta jure imperii, or sovereign acts, on the other hand, are acts that fall within the scope of State immunity and must be granted immunity. 30
§ 1.4. Scope & application
In practise, State immunity is to be accorded to any sovereign State which entails that the State itself or its property cannot be subjected to the jurisdiction and proceedings of a foreign State’s court. Article 6 of the UN Convention provides the legal foundation for this statement and31 describes that a State shall give effect to a third State’s immunity by refraining from exercising jurisdiction in a proceeding before one of its courts. Although State immunity has been 32 codified in the UN Convention, it has been acknowledged by the ILC as part of customary international law. 33
§ 1.5. Conclusion
The concept of State immunity has changed from a perception of absolute to restrictive immunity. Today, a State cannot be subjected to a foreign State’s jurisdiction when the act performed can be categorised as acta jure imperii, i.e. a sovereign act. Acts that cannot be categorised as sovereign acts are jure gestionis. Examples of such acts are commercial acts, such as those summarised in the UN Convention. State immunity has been acknowledged by the ILC to be part of customary international law.
28Malcolm Nathan Shaw, International Law (8th edn, Cambridge University Press 2017), p. 532. 29UN Convention (n 21), Article 2(2).
30UN Convention (n 21), Article 5. 31Stoll (n 1), §19 and §22.
32UN Convention (n 21), Article 6.
33ILC, ‘Yearbook of the International Law Commission 1980 Volume II (2)’ A/CN.4/SER.A/1980/Add.1 (Part 2), §26 on p. 147.
2. Jus cogens (peremptory norms)
§ 2.1. Introduction
This chapter will explore the concept of jus cogens, or as they are also known, peremptory norms. In line with the previous chapter, the history of the concept of jus cogens will be discussed first. After that, the theoretical framework of jus cogens in contemporary international law will be addressed. Finally, ICJ case law regarding jus cogens will be briefly outlined as well. This chapter, like the previous chapter, is of a descriptive character. The applicable sub-question is: What are peremptory norms (jus cogens) in international law?
§ 2.2. History of jus cogens
Jus cogens, or peremptory norms, are rules of international law that possess a higher status than other rules of international law. On the one hand, it can be argued that jus cogens rules are 34 distinct from jus dispositivum (‘law adopted by consent’) as jus cogens rules are deemed to be superior to jus dispositivum and need not be established by State consent. On the other hand, 35 many contemporary writers perceive jus cogens from a positivist approach, which implies that rules can only acquire jus cogens status as a result of State consent. These two schools of 36 thought will be discussed in the next paragraph.
The concept of jus cogens, the Latin term for peremptory norms which translates to ‘compelling law’ , has been around since Roman times, although it did not exist in Roman law37 itself. Well-known examples of jus cogens rules are the prohibition of genocide and the38 39 prohibition of torture. The original perception of jus cogens was that it found its base in public 40 order, however, legal scholars were in no way unanimous, and today still disagree, about its
34Hernández (n 19), p. 59. 35Hernández (n 19), p. 60.
36Dire Tladi, First report on jus cogens, A/CN.4/693, §53 on p. 32.
37Thomas Weatherall, Jus Cogens: International Law and Social Contract (Cambridge University Press 2015), p. 3.
38Manfred Lachs, The Development and General Trends of International Law in Our Time (Volume 169) (NP 1980), p. 202.
39Hernández (n 19), p. 72. 40Hernández (n 19), p. 73.
precise meaning and application. On the one hand, writers argued that no rule of international41 law should force States to commit to a rule, therefore denying the existence of rules of a peremptory character. Others took a more open approach and found that jus cogens could be42 based on legal grounds. 43
Jus cogens was only codified in international law in the twentieth century, through the Articles 53 en 64 of the Vienna Convention on the Law of Treaties (hereinafter: VCLT): 44
Article 53
Treaties conflicting with a peremptory norm of general international law (‘jus cogens’) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Article 64
Emergence of a new peremptory norm of general international law (‘jus cogens’) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. 45
§ 2.3. Theoretical framework
Two different theoretical approaches (schools) have emerged with regard to the perception of jus cogens and will be discussed further on in this paragraph. The adoption of the VCLT can be regarded as the starting-point for the formal introduction of jus cogens in international law.
41Lachs (n 38), p. 202 & 203. 42Lachs (n 38), p. 203. 43Lachs (n 38), p. 203.
44United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
Although the VCLT only concerns and covers treaty law, the inclusion of these articles reflects the applicability of the principle in general international law.
During the drafting process of the VCLT, the ILC appointed four SRs to provide their views on the codification efforts which resulted in a series of reports by, inter alia, Lauterpacht and46 Fitzmaurice as well as several other documents published by the ILC. Lauterpacht argued47 48 that a category of international law should exist that represents the morality of the international community as a whole; principles of international public policy that is. 49 According to Weatherall, this view represents a departure from the idea that international law can exclusively be derived from State practise. Fitzmaurice elaborated on Lauterpacht’s argument and wrote50 that a distinction had to be made between rules of jus cogens and rules of jus dispositivum. 51 This implies a distinction between rules that are adopted by consent and rules superior to those, although it can be argued that rules of jus cogens are also adopted by State consent.
The two schools of thought that seek to provide the theoretical legal framework for the concept of jus cogens are those of positivism and natural law. Tladi, SR to the ILC, provides an 52 overview of the two schools in his reports on jus cogens. The natural law approach implies that jus cogens rules are higher norms and are derived from the idea of superior law. This 53 approach implies the existence of jus cogens superior to and beyond the reach of State consent, as opposed to the positivist approach. This natural approach, however, brings with it the question of determinability, because who determines the content of natural law? 54
46Hersch Lauterpacht, First Report on the Law of Treaties, [1953] II YbILC 154–6, in ILC, ‘Yearbook of the International Law Commission 1953 Volume II’ A/CN.4/SER.A/1953/Add. 1.
47Gerald Fitzmaurice, Third Report on the Law of Treaties, [1958] II YbILC 40, in ILC, ‘Yearbook of the International Law Commission 1953 Volume II’ A/CN.4/SER.A/1953/Add. 1.
48 In this regard, see: <https://legal.un.org/ilc/guide/1_1.shtml> for an overview of the documents published. 49Lauterpacht (n 46) §4 on p. 155.
50Weatherall (n 37), p. 4.
51Fitzmaurice (n 47) §76 on p. 40. 52Tladi, First report (n 36), §50 on p. 30. 53Tladi, First report (n 36), §51 on p. 30 & 31. 54Tladi, First report (n 36), §52 on p. 31.
The positivist approach to jus cogens is based on the idea that the free will of States determines the content of international law and that it is only through State consent that certain rules can achieve jus cogens status. According to writers who adhere to this theory, Article 53 VCLT55 reflects customary international law and provides the definition of jus cogens from their point of view. As a result, the status of a rule that has acquired jus cogens status must be determined56 by the ordinary processes that create customary international law, which means that State consent provides the basis for a jus cogens rule. 57
SR Tladi’s conclusion regarding the criteria for a jus cogens norm is set out in his second report on jus cogens. The two criteria for the identification of jus cogens norms are to be derived58 from Article 53 VCLT and encompass that (1) jus cogens are norms of general international law and (2) are accepted and recognised by the international community of States as a whole.59 As a result, no derogation is permitted, unless another jus cogens rule replaces the former 60
The ILC identified the legal consequences of jus cogens and concluded, inter alia, that rules of customary international law cannot come into existence, or exist at all, if it conflicts with jus cogens. 61
For the purpose of this research paper, one of the legal consequences of a jus cogens norm can be described by reference to Article 41 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter: ARSIWA). The consequence of a serious breach62 of jus cogens is the non-recognition of that breach by (third) States, or not to aid or assist in maintaining the unlawful situation. 63
55Tladi, First report (n 36), §53 on p. 32.
56Ulf Linderfalk, “Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and Legal Idealism” in Maarten den Heijer and Harmen van der Wilt (eds), Netherlands Yearbook of International Law 2015 Jus cogens: Quo vadis? (Asser Press 2016), p. 52.
57Linderfalk (n 56), p. 58.
58Dire Tladi, Second report on jus cogens, A/CN.4/706. 59Tladi, Second report (n 58), §40.
60Tladi, Second report (n 58), §63 & §65.
61ILC, ‘Report of the Drafting Committee on the Work on Peremptory norms of general international law (jus cogens) of its 71st Session’ (29 April–7 June and 8 July–9 August 2019) A/CN.4/L.936, draft conclusion 14. 62International Law Commission, ‘The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts’, The International Law Commission’s articles on state responsibility
(Cambridge University Press 2002). 63Weatherall (n 37), p. 359.
§ 2.4. Jus cogens in ICJ case law
The ILC is currently working on a conclusion on jus cogens and published a draft conclusion in 2019. In its draft conclusion, an annex was added which contained a non-exhaustive list of eight rules that can be considered to possess jus cogens status according to the ILC. As 64 mentioned before, the prohibition of genocide and prohibition of torture, inter alia, have been acknowledged to possess jus cogens status. These two examples have been applied in the 65 International Court of Justice’s (hereinafter: ICJ or Court) case law and show how the concept operates in ICJ practise.
The jus cogens status of the prohibition of genocide has been confirmed in the 2006 ICJ Armed Activities judgment. As will be discussed in § 4.4, the question before the Court involved the consensual jurisdiction and dealt with the question whether the jus cogens status of a norm could establish the Court’s jurisdiction. In its judgment, the Court also addressed the issue66 whether the prohibition of genocide in the Genocide Convention possessed jus cogens status, which it assuredly affirmed. However, it was not this confirmation of the jus cogens status of 67 the prohibition of genocide which established the Court’s jurisdiction and as a result, the ICJ did not address the legal consequences of the jus cogens status.
The jus cogens status of the prohibition of torture was confirmed by the ICJ in its 2012 Obligation to Prosecute or Extradite judgment. The Court confirmed the jus cogens status on the basis that it has been part of widespread international practise and the opinio juris of States.
The ICJ relied on the fact that the prohibition had been included in numerous international 68
instruments as well as in States’ domestic law, which confirms the nature and status of the rule. The consequence of this affirmation of the jus cogens status in that particular set of circumstances was Belgium’s right to request the Court to rule on the dispute. 69
64ILC, ‘Report of the Drafting Committee on the Work on Peremptory norms of general international law (jus cogens) of its 71st Session’ (n 61), draft conclusion 23.
65Hernández (n 39) and (n 40).
66Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, §64 on p. 32.
67Armed Activities on the Territory of the Congo (New Application: 2002) (n 66) §64 on p. 32.
68Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, para. 99.
69Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (n 68), p. 456-458, paras. 96-104.
Apart from the two examples mentioned before, the ILC has confirmed the jus cogens status of six other rules of international law, which are:
● the prohibition of aggression;
● the prohibition of crimes against humanity; ● the basic rules of international humanitarian law; ● the prohibition of racial discrimination and apartheid; ● the prohibition of slavery;
● and the right of self-determination. 70
§ 2.5. Conclusion
Jus cogens, or peremptory norms, are rules of international law that possess a higher status than other rules of international law. According to the ILC, it is a norm that is accepted and recognised by the international community of States as a whole and it cannot be derogated from, unless by another jus cogens rule replacing the former. Jus cogens was first codified in the VCLT and cover rules such as the prohibition of torture and prohibition of genocide. The two schools of thought that seek to provide the theoretical legal framework for the concept of jus cogens are those of positivism and natural law.
70ILC, ‘Report of the Drafting Committee on the Work on Peremptory norms of general international law (jus cogens) of its 71st Session’ (n 61), draft conclusion 23.
3. ICJ Germany v. Italy
§ 3.1. Introduction
This chapter will set out the relevant facts and considerations of the ICJ Jurisdictional Immunities of the State judgment. First, the merits of the case will be discussed to provide a general overview of the issue before the Court. Attention will be paid to the Italian judgments that lead to the proceedings. Afterwards, the Court’s discussion of State immunity and jus cogens and its final ruling will be addressed. This chapter will be of a descriptive character and the applicable sub-question is: How did the ICJ rule on State immunity and jus cogens violations in the case of Germany v. Italy?
§ 3.2. Merits
In short, the case before the ICJ concerned a dispute between the Federal Republic of Germany (hereinafter: Germany) and the Italian Republic (hereinafter: Italy). Germany instituted proceedings against Italy on 23 December 2008 on the grounds that Italy had failed to respect Germany’s jurisdictional immunity because Italy allowed its courts to rule on civil proceedings against Germany for reparations regarding victims’ injuries caused by international humanitarian law violations in the Second World War. 71
During the 1990’s and 2000’s, a series of cases were brought before Italian and Greek courts. The first case concerned Mr. Ferrini, an Italian national who was deported to Germany in 1944 and forced to work in an ammunition factory. His case was rejected by Italy’s two lower courts twice on the grounds that the courts had no jurisdiction, but the Italian Court of Cassation held that the Italian courts did have jurisdiction over the claims for compensation because Germany could not enjoy immunity as the case in question concerned an international crime. The Court 72 of Cassation held that respect for inviolable human rights has acquired the status of a fundamental principle of international law. As a result, the rules of State immunity and the 73
71Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99.
72Ferrini v. Germany, Appeal decision, Case no 5044/04, ILDC 19 (IT 2004), 11th March 2004, Italy; Supreme Court of Cassation, §12.
human rights violations were not to be assessed in isolation, but in relation to each other and other fundamental principles. The Court of Cassation concluded that Germany’s immunity74 could not be maintained as functional immunity is a corollary of State immunity and the 75 presence of an international crime prevents the very application of State immunity. In the end, 76 the Court of Appeal in Florence held that Germany was obliged to award damages to Mr. Ferrini because Germany’s jurisdictional immunity is not absolute and cannot be invoked when the set of facts constitute an international crime. 77
The second case involved twelve claimants who were treated under the same circumstances as Mr. Ferrini and were seeking similar damages. Here, the Italian Court of Cassation also held that Germany was not entitled to State immunity because of the gravity of the violations, which meant that the Italian courts had jurisdiction to decide on the matter. A similar judgment was 78 also rendered by the Italian Court of Cassation in a case where claims were brought before the court against a member of the German armed forces, Mr. Max Josef Milde. 79 80
As a result of the Italian cases, Germany brought the dispute before the ICJ on the grounds that:
by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law. 81
74Ferrini v. Germany (n 72) §9.2. 75Ferrini v. Germany (n 72) §9.2. 76Ferrini v. Germany (n 72) §11.
77Jurisdictional Immunities of the State (n 71) see §27.
78Germany v Mantelli and ors, Preliminary Order on Jurisdiction, Case No 14201/2008, (2008) Riv Dir Int 896, ILDC 1037 (IT 2008), 29th May 2008, Italy; Supreme Court of Cassation, §11.
79Germany v Milde (Max Josef), Appeal judgment, Case no 1072/2009, (2009) 92 Riv Dir Int 618, ILDC 1224 (IT 2009), 13th January 2009, Italy; Supreme Court of Cassation; 1st Criminal Section.
80The third case was the so-called Distomo case and was brought before Greek courts first and Italian courts later. The subject matter of this case is irrelevant for the present research, so no further elaboration will be given about the procedural background and facts.
Italy contended the failure to respect Germany’s jurisdictional immunity. The issue before the ICJ, which is relevant for this research, was centered around the question whether State immunity were to be granted to Germany in respect of acta jure imperii when those acts qualified as jus cogens violations. The ICJ had to decide whether State immunity was applicable to acts committed by the armed forces of a State during an armed conflict, or by other organs of that State working alongside those armed forces. Germany argued that82 immunity was applicable as there exists no limitation on the immunity arising out of acta jure imperii. Italy presented two arguments against this reasoning on the grounds that (1)83 immunity, with regard to acta jure imperii, did not extend to torts or delicts that resulted in death, personal injury or damage to property on the forum State’s territory , and (2) that 84 Germany was not entitled to immunity at all because the acts at hand involved the most serious violations of rules of international law which possess jus cogens status for which no alternative means of redress was available. 85
The second argument, that involving jus cogens violations, consists of three separate strands of argumentation. Italy first argued that Germany could not enjoy State immunity as international law does not accord immunity (or restricts the right to immunity) when a State has committed serious violations of international humanitarian law. Italy then argued that the rules which 86 were violated by Germany during the Second World War possessed jus cogens status, which would mean that a conflict exists between those rules of jus cogens and the rule that would accord Germany immunity. The last argument put forth by Italy rests on the fact that Italy87 could justify the denial of State immunity to Germany as all other attempts to secure compensation for the victims had failed, in short the ‘last resort’ argument, but it did not substantiate that claim further. 88
82Jurisdictional Immunities of the State (n 71) see §61. 83Jurisdictional Immunities of the State (n 71) see §61. 84Jurisdictional Immunities of the State (n 71) see §61. 85Jurisdictional Immunities of the State (n 71) see §61. 86Jurisdictional Immunities of the State (n 71) see §81. 87Jurisdictional Immunities of the State (n 71) see §92. 88Jurisdictional Immunities of the State (n 71) see §98.
Italy’s aforementioned two arguments will not be discussed in absolute detail. The first argument put forth by Italy concerns the so called ‘territorial tort principle’, a principle which involvesacta jure imperii and State immunity, but not State immunity in relation to jus cogens violations, which is the subject of this research. Therefore, the second strand to Italy’s second argument will be the primary focus of this research.
§ 3.3. Conflict between jus cogens and State immunity
The Court addressed the conflict between jus cogens violations and the rule of State immunity in six concise paragraphs. The ICJ began its discussion with the statement that Italy’s argument implied that a conflict must exist between a rule of jus cogens and the customary rule State immunity. It quickly concluded that no such conflict exists, as both rules, that being the rule89 of jus cogens and the rule of State immunity, address different matters.
The Court makes a clear distinction between both sets of rules. The concept of State immunity concerns a procedural bar only, which implies that a court must determine whether or not it may exercise jurisdiction over a third State regardless of the lawfulness of the conduct that a claim is based on. In that respect, the Court refers to Article 41 ARSIWA and it decided that 90 the recognition of immunity of a foreign State does not imply that such recognition confirms the lawfulness of a situation which is created by the violation of a jus cogens rule. As a result, 91 the principle enshrined in Article 41 ARSIWA is not contravened.
The Court went on to acknowledge that the acts which took place during the Second World War, such as murder, deportation, and slave labour, are deemed illegal. However, it does not 92 explicitly write that the acts performed by Germany during the Second World War constitute a violation of jus cogens. The Court omits to address the jus cogens status of the crimes 93 committed by Germany, even though Italy argues that the acts performed by Germany did possess jus cogens status. The Italian courts on the other hand did explicitly mention that the94
89Jurisdictional Immunities of the State (n 71) see §93. 90Jurisdictional Immunities of the State (n 71) see §93. 91Jurisdictional Immunities of the State (n 71) see §93. 92Jurisdictional Immunities of the State (n 71) see §94. 93Jurisdictional Immunities of the State (n 71) see §97. 94Jurisdictional Immunities of the State (n 71) see §80.
respect for inviolable human rights has attained the status of a fundamental principle of international law , but it neither addressed the jus cogens character of that principle. 95
§ 3.4. Decision
The ICJ came to the conclusion that the applicability of the customary law on State immunity was not affected by the violations of jus cogens rules. In reaching that conclusion, the Court referred to two of its previous judgments which it considered applicable to the present case.
In ICJ Armed Activities, the Court held that even though a rule possesses the status of jus cogens, this does not provide a court with the jurisdiction which it would otherwise not possess. In ICJ Arrest Warrant, the Court ruled that the fact that a Minister of Foreign Affairs was
96
accused of crimes which possess the character of jus cogens did not entail the deprivation of the Democratic Republic of the Congo of its entitlement to State immunity. 97
In addition to the aforementioned ICJ case law, the Court also relied upon national case law from several States around the world, including the UK, Canada, Poland, Slovenia, New Zealand and Greece, as well as the European Court of Human Rights (hereinafter: ECtHR). 98 The ICJ concluded that the only national case law in which the arguments set forth by Italy were accepted, came from Italian courts themselves and which were the subject of the proceedings in the Jurisdictional Immunities of the State case.
§ 3.5. Dissenting opinions
Three dissenting opinions were appended to the final judgment of 3 February 2012, written by Judge Cançado Trindade, Judge Yusuf, and Judge ad hoc Gaja. Judge Cançado Trindade presented a comprehensive dissenting opinion which encompassed the ICJ Jurisdictional Immunities of the State judgment as a whole. 99
95Ferrini v. Germany (n 72) §9.2.
96Jurisdictional Immunities of the State (n 71) see §95 and Armed Activities on the Territory of the Congo (New Application: 2002) (n 66) §64 on p. 32 and §125 on p. 52.
97Jurisdictional Immunities of the State (n 71) see §95 and Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, §58 on p. 24 and §78 on p. 33.
98Jurisdictional Immunities of the State (n 71) see §96.
99Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99 (Judge Cançado Trindade).
With regard to the conflict between State immunity and jus cogens violations, Judge Cançado Trindade was of the opinion that the acta jure imperii and acta jure gestionis distinction should not have been a relevant consideration in the first place. 100 In his opinion, the acts committed by Germany during the Second World War areacta delicta, grave crimes. The seriousness of the acts committed entail that recourse to State immunity should be deemed inadmissible, as there cannot exist immunity for grave violations of human rights and of international humanitarian law. 101
The majority’s determination that no conflict exists between the rules of jus cogens and rules of State immunity could not be followed by Judge Cançado Trindade as this conclusion ultimately required persuasive explanation, which is not provided for in the judgment. 102 In his opinion, the crimes committed by Germany during the Second World War are such grave breaches of the absolute prohibitions of jus cogens that the privilege of State immunity could not have been invoked. 103
§ 3.6. Conclusion
In its judgment, the ICJ ruled that the applicability of the customary law on State immunity was not affected by the violations of jus cogens rules. It concluded that the rules of State immunity are of a procedural nature, while rules of jus cogens concern a substantive bar. As a result, Italy’s argument that a conflict exists between these two rules was rejected. Judge Cançado Trindade disagreed with the majority judgment on the grounds that the crimes committed should not have been assessed in light of the acta jure imperii and acta jure gestionis distinction, but that they were grave crimes,acta delicta, for which State immunity could not be invoked.
100Judge Cançado Trindade (n 99), §177. 101Judge Cançado Trindade (n 99), §178 & 179. 102Judge Cançado Trindade (n 99), §298. 103Judge Cançado Trindade (n 99), §297.
4. Legal criticism of Court judgment
§ 4.1. Introduction
This chapter will focus on legal criticism of the Court’s ruling in ICJ Jurisdictional Immunities of the State. Scholars’ opinions will be addressed and compared and an overview and analysis of the critical opinions will be made. This chapter is therefore of a descriptive as well as an evaluative character. The sub-question is: What arguments have legal scholars formulated against the ICJ decision on the conflict between jus cogens and State immunity?
§ 4.2. State consent during written proceedings
Bianchi wrote a critical article on the Court’s ruling in which he referred to the written proceedings and how the Court failed to refer to State consent during the written proceedings. 104 He first set out the conclusion of the ICJ that there is no conflict between the rules of armed conflict which have acquired jus cogens status and the State immunity to be enjoyed by Germany. He refers to the debate on the relationship between jus cogens rules and jurisdictional immunity that had been going on for almost twenty years. 105 Bianchi then criticised the failure of the ICJ to refer to parties’ consent which should have played an important role in the ICJ’s final judgment.
Germany explicitly addressed the issue of State immunity and argued that it must be described as substantive rules as it was of the opinion that ‘sovereign immunity cannot be downgraded to a simple procedural rule.’106 A statement that Germany even confirmed over a year later. 107 Italy, however, argued that the rules on State immunity must be characterised as procedural. 108 Bianchi points to the fact that the Court refrained from addressing and discussing these statements of consent about key arguments of the discussion. 109
104Andrea Bianchi, 'Gazing at the Crystal Ball (again): State Immunity and Jus Cogens beyond Germany v Italy' [2013] 4(3) Journal of International Dispute Settlement <DOI:10.1093/jnlids/idt014> accessed 18 February 2020. 105Bianchi (n 104), p. 459.
106Memorial of the Federal Republic of Germany, 12 June 2009, §95. 107Reply of the Federal Republic of Germany, 5 October 2010, §37. 108Counter-memorial of the Italian Republic, 22 December 2009, §4.44. 109Bianchi (n 104), p. 460.
§ 4.3. Proportionality test
Bornkamm, in his article in the German Law Journal, discussed the Court’s shortsightedness and its inability to look at the dynamic development in the field of immunity. 110 In his discussion about the relation between rules of jus cogens and State immunity, he argued that the ICJ has reasoned too formalistic.111 Bornkamm argued that, from a human rights law perspective, a different outlook is needed on the exceptions to State immunity.
In short, Bornkamm wrote that the consequence of the Court’s judgment that no conflict exists between jus cogens and State immunity is the limitation of the fundamental right of access to justice. The fundamental right to access to justice is trumped when State immunity is granted, and Bornkamm was of the opinion that a limitation of such an individual right will call for a proportionality test.112 The Court does not take notice of such a test as this would mean that an enquiry must be made into the merits of the case, and that means subjecting a State to the jurisdiction of a foreign State, which the procedural character of State immunity does not allow.
113
§ 4.4. ICJ case law
Espósito, Trapp and Mills, and Orakhelashvili presented arguments against the ICJ’s use of its own case law to support the conclusion that the effect of jus cogens would not provide an exception to State immunity.
Espósito criticised the references made to the ICJ’s own case law in his article in the Italian Yearbook of International Law. 114 He disagreed with the ICJ’s reasoning and argued that the arguments presented by the Court are not particularly persuasive. He presents his argument by
110Paul Christoph Bornkamm, 'State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice in Jurisdictional Immunities of the State' [2012] 13(6) German Law Journal <DOI:10.1017/S2071832200020733> accessed 21 January 2020.
111Bornkamm (n 110), p. 781. 112Bornkamm (n 110), p. 781.
113Jurisdictional Immunities of the State (n 71) see §94 and Bornkamm (n 110), p. 782.
114Carlos Espósito, 'Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: ‘A Conflict Does Exist'' [2011] 21(1) The Italian Yearbook of International Law <DOI:10.1163/22116133-90000215> accessed 21 January 2020.
referring to the fact that none of the ICJ’s references in the paragraphs 93 and 94, as described in § 3.3 and § 3.4, fully support the conclusion that there exists no conflict between the two sets rules. First, theArmed Activities case concerned consensual jurisdiction, and second, the Arrest Warrant case concerned a different type of immunity. 115
Trapp and Mills elaborate on this argument more in depth and conclude that the ICJ case law provided no example because the question before the ICJ in the Jurisdictional Immunities of the Statecase was whether the jus cogens norms would provide an exception to State immunity. 116 They pointed out that theArrest Warrant case dealt with absolute immunity for Heads of State and Foreign Ministers, a type of immunity from which no derogation is permitted. 117 The Armed Activities case involved consensual jurisdiction and dealt with the question whether the jus cogens status of a norm could establish the Court’s jurisdiction. 118They therefore concluded that the precedents addressed in the decision are of little relevance as the Court was faced with a very different question in the ICJ Jurisdictional Immunities of the State case.
In addition to the aforementioned, Orakhelashvili pointed out that the Arrest Warrant case concerned a different type of immunity which did not expressly concern jus cogens norms, because in that judgment the ICJ tried to avoid impunity to guarantee that alternative forms of redress would remain available.119 The Armed Activities case did not concern the plea of immunity for a national court, but a plea of jus cogens as an additional question before the Court. As a result, Orakhelashvili questions the legal bindingness of the judgment as he finds that the ruling is legally deficient. 120
115Espósito (n 114) p. 171.
116Kimberley N Trapp and Alex Mills, 'Smooth Runs the Water Where the Brook Is Deep: The Obscured Complexities of Germany v Italy' [2012] 1(1) Cambridge Journal of International and Comparative Law <DOI:10.7574/cjicl.01.01.33> accessed 18 February 2020, p. 160.
117Trapp and Mills (n 116), p. 160. 118Trapp and Mills (n 116) p. 160.
119Alexander Orakhelashvili, 'Jurisdictional immunities of the state (Germany v Italy; Greece intervening)' [2012] 106(3) American Journal of International Law <DOI: 10.5305/amerjintelaw.106.3.0609> accessed 4 February 2020, p. 616.
§ 4.5. De lege lata & de lege ferenda
McMenamin wrote about the ICJ’s decision on State immunity and put it in the context of matters of de lege lata and de lege ferenda. His first statement rests on the fact that the Court’s decision is in line with how the law, de lege lata, currently is. This is based on the observation that the procedural/substantive rule distinction is in line with international (case) law and confirms the views of international legal scholars. 121
With regard to the issue of de lege ferenda, McMenamin argues for a narrow exception to State immunity from jurisdiction for serious violations of jus cogens rules if there are no alternative means for redress available to victims. The foundation for this argument comes from the fact that the international legal order is no longer State-centric. Individuals have risen to the international plane and obligations erga omnes provide for an exception to sovereignty as a justification for the avoidance of accountability for serious international crimes. 122McMenamin therefore calls for a re-evaluation of the scope and impact of State immunity to reflect the present-day developments in international law.
An example to facilitate such a re-evaluation is the transition from absolute immunity to restrictive immunity as discussed in § 1.2. McMenamin does notice that this transition arose from State practise, not by judicial activism. 123 He argues that the same evolution must happen with respect to State practise and opinio juris, for customary international law to shift to an exception to the concept of State immunity for violations of jus cogens rules if there are no alternative means for redress available to victims.
§ 4.6. Normative hierarchy theory
Esposito presented a possible alternative to the Court’s ruling on jus cogens violations. His proposition was that the ICJ could have taken a substantive position on jus cogens and could have elaborated on the consequences of a possible jus cogens violation in relation to State immunity. He argued that the Court could have assessed the Italian cases in more detail to
121Matthew McMenamin, 'State Immunity before the International Court of Justice: ‘Jurisdictional Immunities of the State (Germany v Italy)' [2013] 44(1) Victoria University of Wellington law review
<DOI:10.26686/vuwlr.v44i1.5004> accessed 18 February 2020, p. 205. 122McMenamin (n 121), p. 214.
identify whether the crimes of international law committed by Germany during the Second World War could trigger a situation where hierarchy exists between jus cogens and jurisdictional immunities.124 Espósito therefore calls for a ruling where normative hierarchy should have been introduced.
§ 4.7. Procedural/substantive rule distinction
Espósito affirmed the fact that the procedural/substantive distinction has been widely accepted and maintained by legal scholars.125 However, he disagreed with the ICJ’s argument that no conflict could exist because, in his view, both procedural and substantive rules overlap. Procedural rules are determined by other rules and values and serve those rules and values.126 He writes that it is actually the ICJ’s duty to treat State immunity as a substantive issue under its jurisdiction. 127
Furthermore, Espósito was of the opinion that jus cogens does possess a positive character, in that it has procedural dimensions which can play a role in the assessment whether State immunity is in conformity with the public order of international law. He substantiates this claim by reference to Article 41 of the Articles on State Responsibility. 128 In his view, Article 41 imposes a procedural obligation on international law subjects, that being primarily States in this case, to prevent ‘their primacy and effectiveness from being undermined by barriers to actions aimed at ending violations.’ 129 It can even be said that the procedural bar of jurisdictional immunity could add to the impunity of jus cogens violations. With that in mind, the prevalence of jus cogens rules over immunity has been confirmed in criminal law cases but not in civil ones,130 which should be so for all fields of law. Immunity should be trumped when it prevents jus cogens violations from being properly analysed and applied, otherwise the core nature of the concept of jus cogens is nullified. Espósito wrote that the ICJ, by not accepting the argument that jus cogens could have effects beyond trumping immunity, ignored the conflict
124Espósito (n 114), p. 166-167. 125Espósito (n 114), p. 170. 126Espósito (n 114), p. 170. 127Espósito (n 114), p. 171.
128International Law Commission, ‘The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (n 62).
129Espósito (n 114), p. 171. 130Espósito (n 114), p. 172.
which in his opinion does exist. 131 He concluded his argument with the remark that the judges were faced with a difficult challenge to provide stability for the international plane, but that this ruling has not created the stability which is needed for present day international law.
Orakhelashvili characterised the ICJ’s decision to rule that no conflict exists between substantive rules of jus cogens and procedural rules of State immunity as implausible. 132Rules of jus cogens do not merely address substantive legality but they address legal consequences. The qualification of jus cogens rules as substantive, against the procedural bar of State immunity, means that the relevant jus cogens rules are therefore excluded from the legal framework, as a result of which the rules cannot operate as such. 133This argumentation can be considered in line with Espósito’s argument about jus cogens therefore being nullified. 134
Orakhelashvili, as Espósito did as well , criticised the application of Article 41 ARSIWA. He 135 writes that the Court’s argument that no recognition of the lawfulness of a situation created by the breach of a jus cogens rule is given by granting immunity to a State. 136Article 41 does not concern the substantive legality of a breach of a jus cogens rule, but the effect and consequences of such a breach. As a result, the situation Article 41 refers to, that of ‘a situation created by a serious breach,’ is the impunity from a jus cogens rule violation and the lack of remedies. Orakhelashvili therefore concluded that the situation created by the ICJ is the recognition of that situation as lawful. 137
Souresh argued that the ICJ’s distinction between the procedural/substantive rule distinction was arbitrary.138 The ground for this argument is the fact that rules of jus cogens should be considered superior to any other norm, so in the present case, the rule of State immunity should
131Espósito (n 114), p. 172-173. 132Orakhelashvili (n 119), p. 615. 133Orakhelashvili (n 119), p. 615. 134Espósito (n 114) p. 172-173. 135Espósito (n 114) p. 171.
136Jurisdictional Immunities of the State (n 71) see §93 in connection with International Law Commission, ‘The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (n 62), Article 41.
137Orakhelashvili (n 119), p. 615.
138Anogika Souresh, 'Jurisdictional immunities of the state: Why the ICJ got it wrong' [2017] 9(2) European Journal of Legal Studies <https://ejls.eui.eu/issues/spring-2017/> accessed 18 February 2020.
give way to jus cogens. 139 She substantiates this claim with reference to Judge Cançado Trindade’s dissenting opinion to the Jurisdictional Immunities case.140 The Court failed to provide a sound legal argument for the lack of conflict between the two sets of rules. Souresh follows Espósito, McMenamin and Orakhelashvili in the argument that both State immunity and jus cogens rules possess characteristics of substantive as well as procedural rules. 141
Trapp and Mills further challenged the Court’s decision on the separation of procedural and substantive rules by reference to criminal and civil immunity. The Pinochet decision, to which the ICJ briefly refers in its judgment , illustrated that rules of substance and procedure were 142 linked as it was agreed, in short, that the substantive prohibition on torture included procedural consequences as well. 143 Trapp and Mills question whether the development of immunity in the criminal context should be brought in the civil context as well because both civil and criminal immunity are both forms of State immunity. 144 They are careful in their argumentation and argue thatPinochet was based on universal criminal jurisdiction, not universal civil jurisdiction. Universal jurisdiction could establish procedural implications, as the substance of norms that call for universal jurisdiction would mean they could be enforced in national courts. 145 Universal jurisdiction as a matter of customary international law is still a disputed statement, but according to Trapp and Mills it does prove that a link exists between questions of substance and questions of procedure. In their opinion, to suggest that there is no link between the concept and jus cogens and the procedural implications it brings about, as the ICJ did in its judgment,
§ 4.8. Conclusion
The ICJ’s ruling on State immunity with regard to jus cogens violations has been met with criticism from legal writers. Several scholars do not agree with the distinction the Court makes between the rules of procedure and rules of substance, that being State immunity and jus cogens rules respectively. Other aspects of the decision that have been criticised include the Court’s
139Souresh (n 138), p. 25. 140Souresh (n 138), p. 25. 141Souresh (n 138), p. 26-31.
142Jurisdictional Immunities of the State (n 71) see §87.
143R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.
144Trapp and Mills (n 116), p. 161. 145Trapp and Mills (n 116), p. 161-162.
