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Published online by Cambridge University Press: 05 February 2013
Any legal system, including the international legal system, consists of rules that serve multiple purposes and functions that the legal system in question needs to perform in order to survive as a viable organism. Jurisprudence of national and international courts relating to areas such as responsibility, immunity, and dispute settlement has involved intensive discussions as to the nature and implications of the various categories of rules. Approaching this broad area, with its multiple components, requires careful differentiation of the nature of those various categories of rules, for the fact that the relevant classification of rules works in one area does not inherently make it workable in other areas, which is confirmed in practice. The most problematic issue remains the judicial application of jus cogens in relation to state immunities and the ensuing distinction between substantive and procedural rules. It is shown in this contribution that this artificial distinction does not reflect the functions international law actually accords to its various rules, and is instead a product of political and ideological preference to keep particular classes of plaintiffs out of certain jurisdictions.
1 Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, International Court of Justice (not yet published).
2 S. Talmon, ‘Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’, Bonn Research Papers on Public International Law Paper No 4/2012, 16 June 2012; and (2012) 25 LJIL 979.
3 Ibid., at 981.
4 Ibid., at 982.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid., at 984.
10 Ibid., at 983.
11 Report of the International Law Commission on the Work of Its Fifty-Third Session (23 April–1 June and 2 July–10 August 2001), Document A/56/10, at 31.
12 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, [2010] ICJ Rep. 14.
13 Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, [1995] ICJ Rep. 90.
14 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility Decision of 3 February 2006, [2006] ICJ Rep. 6.
15 East Timor, supra note 13, at 102, para. 28 and at 105, para. 34; for analysis see Orakhelashvili, A., ‘The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: From Monetary Gold to East Timor and Beyond’, (2011) 2 (2)Journal for International Dispute Settlement 373.CrossRefGoogle Scholar
16 Germany v. Italy, supra note 1.
17 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 397.
18 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95.
19 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222.
20 Pulp Mills, supra note 12, at 49, para. 77.
21 Ibid.
22 Ibid., para 78.
23 Ibid.
24 1966 International Covenant on Civil and Political Rights, 999 UNTS 171.
25 The difference between the law of treaties and law of state responsibility, drawn by the ICJ, is relevant here: ‘A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of state responsibility’. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 7, at 38. The rules regarding waiver and acquiescence operate in relation to both above categories either in relation to the continued substantive applicability of the rule, or in relation to the wrongful consequences once the rule has been breached. The former aspect is governed by the law of treaties and the latter one by the law of state responsibility. In both contexts the ILC has admitted that these arrangements do not prejudice the effect of jus cogens; for details, see Orakhelashvili, A., Peremptory Norms in International Law (2006), Chapter 11.Google Scholar
26 As was the case with the above Pulp Mills case, supra note 12; consider also the practice of the European Court of Human Rights regarding finding violation of the European Convention on Human Rights in relation to hindering the access of individuals to ECHR procedures.
27 2001 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts [2001] Yearbook of the International Law Commission vol. II (2).
28 Ibid.
29 According to Article 2 ILC Articles, supra note 27: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State.’
30 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3.
31 See supra note 1.
32 Talmon, supra note 2, at 986. Emphasis in original. In support of this proposition, Talmon refers to Cannizzaro, E., ‘A Higher Law for Treaties?’, in Cannizzaro, E. (ed.), The Law of Treaties beyond the Vienna Convention (2011), 425Google Scholar at 434, 439; but Cannizzaro in the same contribution has admitted that in certain cases there can be a conflict between jus cogens and immunity (at 439, last paragraph, suggesting the balancing test). Talmon's allusion to Cassese, A., ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v. Belgium Case’, (2002) 13 EJIL 853CrossRefGoogle Scholar, at 867, is also counterfactual, for Cassese was maintaining the distinction between substantive and procedural rules only in relative terms as Arrest Warrant (supra note 30) had suggested it. Cassese had suggested nothing that would justify the approach either in Jones v. Saudi Arabia ([2006] UKHL 16) or in Germany v. Italy (supra note 1), but has instead supported the primacy of jus cogens over immunities. See A. Cassese, International Law (2005), at 108.
33 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.
34 See supra note 1.
35 See supra note 30, at 25, para. 60.
36 Ibid., para. 61.
37 Jones v. Saudi Arabia, supra note 32, paras. 44–45.
38 See also Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Dissenting Opinion of Judge Yusuf, International Court of Justice (not yet published), especially paras. 35–42.
39 For a detailed analysis of jurisprudence to the effect that human rights law and humanitarian law create rights for individuals, not disposable by transactions between states, see Orakhelashvili, supra note 25, Chapter 4. A similar effect can be attributed to the individual right to obtain reparation for violation of humanitarian law, for the detailed analysis of which under Article 3 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land and relevant customary law see Fujita, H., Suzuki, I., and Nagano, K. (eds.), War and the Rights of Individuals (1999)Google Scholar (especially the expert opinions by F. Kalshoven, E. David, and C. Greenwood, at 31–72); and Orakhelashvili, supra note 25, Chapter 8.
40 Talmon, supra note 2, at 996.
41 See supra note 19, Article 35(1).
42 Although it is substantially different whether one can bring the action in the first place, and whether one should be prevented from doing so if it originally had such capacity but failed to take advantage of it by one's own omission.
43 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90.
44 See supra note 33.
45 See supra note 14.
46 There can, however, be convergence between the two. Most human rights and humanitarian-law treaties are conventional equivalents of customary jus cogens, not subject to derogation prohibited under Article 53 of the 1969 Vienna Convention (see supra note 33). This was recognized by the ILC in the 1960s when the codification of the 1969 Vienna Convention was under way, and overwhelmingly reflected in judicial practice and doctrine since then. Evidence is discussed in detail in Orakhelashvili, supra note 25, Chapter 4. Most recently, the decision of the European Court of Human Rights in Othman specified that ‘UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice’. Othman (Abu Qatada) v. The United Kingdom, Application No. 8139/09, Judgment of 17 January 2012 (not yet published), at para. 266. This point further undermines the argument that the denial of the immunity of a former head of state by the House of Lords of England and Wales in R v. Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [1999] 2 All E.R. 97 was undertaken on the basis of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1468 UNTS 85, as completely separate from jus cogens. The 1984 Torture Convention and jus cogens were also interchangeably used by the House of Lords of England and Wales in A and Others v. Secretary of State for the Home Department [2005] UKHL 71.
47 The ILC referred to the effect of jus cogens on ‘any [conflicting] act or situation’. Report of the International Law Commission on the work of its eighteenth session (4 May–19 July 1966) [1966] Yearbook of the International Law Commission 2, at 261. The International Criminal Tribunal for the Former Yugoslavia observed in Furundzija that ‘[t]he fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. Prosecutor v. Furundzija, Judgment, Case No. IT-95–17/1-T, T.Ch., 10 December 1998, at para. 155. Pursuant to Furundzija, Lord Browne-Wilkinson in Pinochet (supra note 46) observed that ‘The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed’. In this same case, Lord Hope was of the view that ‘acts the prohibition of which has acquired the status under international law of jus cogens . . . [compel] all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to punish such conduct’. Furthermore, Lord Millett added that ‘[i]nternational law cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose’. Overall, five Law Lords subscribed to such extra-conventional effect of jus cogens: Lord Nicholls, Pinochet, 939–940; Lord Steyn, ibid., 945–946; Lord Hutton, ibid., 165–166; Lord Millett, ibid., 179. Most recently, the Swiss Federal Tribunal reiterated the same view in A v. Ministère public de la confédération, Tribunal pénal fédéral, Numéro de dossier BB.2011.140, Judgment of 25 July 2012, at paras. 5.3.5 and 5.4.3. See further notes 48 and 52–5 infra and the accompanying text, to a similar effect.
48 ILC Articles on State Reponsibility, supra note 27, Articles 40–1. States shall not ‘recognise as lawful a situation created by a serious breach’ of jus cogens (Article 41). Articles 41–2, ILC Articles on the Responsibility of International Organisations, 2nd reading, 2011, A/66/10.
49 For detail, see Orakhelashvili, supra note 25, Chapter 15.
50 Phoenix Action, Ltd. v. Czech Republic, ICSID Case No. ARB/06/5 (Israel/Czech Republic), Award, 15 April 2009.
51 Talmon, supra note 2, at 994.
52 For further detail see Orakhelashvili, supra note 25, Chapter 15, also explaining that Schucking and Van Eysinga are generally regarded as early supporters of judicial relevance of jus cogens.
53 Cf. Crawford, J., The Creation of States in International Law (2006), Chapter 3.Google Scholar
54 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Declaration of Judge ad hoc Lauterpacht, [1996] ICJ Rep. 633; M. Shaw and K. Wellens, International Law Association Final Report on Accountability of International Organisations (2004), at 19; ILC Draft Articles on the Responsibility of International Organisations, [2011] Yearbook of the International Law Commission, vol. II(2), at 131–4; for further detail as to evidence see Orakhelashvili, supra note 25, Chapters 12–14.
55 See generally Dugard, J., Recognition and the United Nations (1987)Google Scholar; Articles 40 and 41 ILC Articles on State Responsibility, supra note 27; Orakhelashvili, supra note 25, Chapter 11.
57 Al-Adsani v. the United Kingdom, Application No. 35763/97, Judgment of 21 November 2001, (2002) 34 EHRR 11.
