Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist

Italian Yearbook of International Law, Vol. 21, 2012

15 Pages Posted: 11 Jul 2012 Last revised: 10 Jan 2018

See all articles by Carlos Espósito

Carlos Espósito

University Autónoma of Madrid (UAM)

Date Written: July 1, 2012

Abstract

In its judgment of 3 February 2012 in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), the International Court of Justice has considered the relationship between jus cogens and the rule of State immunity. The Court has denied the existence of a jus cogens exception to the rule of State jurisdictional immunities based primarily on the distinction between peremptory norms as rules of substance and jurisdictional immunities as rules of procedure. For the Court, a conflict between rules on jurisdictional immunities, 'essentially procedural in nature,' and substantive rules of jus cogens is conceptually impossible. This comment presents a critique of the approach and reasoning of the Court regarding the absolute separation between procedural and substantive rules, and supports that a legal conflict may exist between jus cogens and jurisdictional immunities. Moreover, it sustains that the decision of the Court is neither an ideal kind of stability for international law nor an encouraging legal message to national judges dealing with public interest claims arising from serious violations of international law.

Keywords: jus cogens, International Court of Justice, state immunity, jurisdictional immunity

Suggested Citation

Espósito, Carlos, Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist (July 1, 2012). Italian Yearbook of International Law, Vol. 21, 2012. Available at SSRN: https://ssrn.com/abstract=2103482 or http://dx.doi.org/10.2139/ssrn.2103482

Carlos Espósito (Contact Author)

University Autónoma of Madrid (UAM) ( email )

Faculty of Law
Madrid, 28049
Spain

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