New Zealand Yearbook of International Law
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New Zealand Yearbook of International Law |
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Xiaodong Yang[*]
Where the issue of State immunity arises in a lawsuit against a foreign State or a foreign official for alleged human rights violations committed outside the State of the forum, the greatest difficulty facing human rights advocates is that they have to argue for denial of immunity within the framework of current international law on State immunity, which does not contain an exception to immunity with regard to human rights violations occurring outside the forum State. They thus often have to go beyond that framework by resorting to, among others, the concept of jus cogens. There accordingly came into existence what may for convenience be termed as the “abrogation theory”. According to this theory, the immunity of a foreign State is either automatically overridden by the peremptory character of a jus cogens human rights norm, or is considered as having been implicitly waived by a foreign State by reason only of its human rights violations. This article attempts to show that the abrogation theory rests on uncertain or unproven premises, is inconsistent and untenable in theory and would serve to undermine and detract from jus cogens human rights norms. The article concludes that human rights advocates should work under and build upon existing international treaties, rather than depend on a dubious and self-defeating hypothesis.
The gist of the abrogation theory is that certain principles of international human rights law have become peremptory norms of general international law (jus cogens), and as such they can override State immunity or, alternatively, their acceptance by States can be regarded as implying a waiver of immunity. Take torture as an example. Since the prohibition of torture has now acquired the status of jus cogens, it will automatically displace immunity of foreign States with respect to alleged acts of torture, even if these acts took place outside the forum State. By extension, any international human rights norm that can be shown as having a jus cogens character will automatically lead to a denial of immunity.
Al-Adsani, decided by the European Court of Human Rights (ECHR), concerned a claim that the United Kingdom, in granting Kuwait immunity for alleged acts of torture committed in Kuwait, violated the right of access to court as provided for by article 6(1) of the European Convention on Human Rights.[1] While the judges in the majority rejected the claim,[2] the dissenting judges maintained that immunity should not be granted in any proceedings, whether criminal or civil, against foreign States regarding acts of torture.[3] According to the dissenting judges:[4]
By accepting that the rule on prohibition of torture is a rule of jus cogens, the majority recognise that it is hierarchically higher than any other rule of international law… For the basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule.
Thus, the dissenting judges, without offering further explanation, prejudged State immunity to be a non-jus cogens norm[5] and presumed it to be automatically in conflict with the jus cogens norm of prohibition of torture, thereby reaching a foregone conclusion:[6]
The prohibition of torture, being a rule of jus cogens, acts in the international sphere and deprives the rule of sovereign immunity of all its legal effects in that sphere.
The above quotations show clearly that the dissenting judges were not only making a particular suggestion that a jus cogens norm overrides State immunity, but also a general proposition that any jus cogens rule could override any ordinary rule, regardless of their subject matter. As we shall see, such propositions may run into serious difficulties.
The dissenting judges in Al-Adsani are neither the first nor the only ones to put forward the abrogation theory. In fact, the dissenting judges’ opinion succinctly summarizes the central idea of what might be regarded as a major current of thought gathering popularity among scholars debating over the interplay of State immunity and human rights, though these scholars are uncertain as to what international human rights norms can be listed as jus cogens norms.[7] In many cases no explanation is given as to how those norms have become jus cogens.
On the other hand there are scholars who are either sceptical about or even positively deny the existence of jus cogens norms.[8] The international practice is hardly more helpful. It is generally accepted that the most authoritative definition of the term jus cogens is to be found in the 1969 Vienna Convention on the Law of Treaties (Vienna Convention), article 53 of which defines a peremptory norm of general international law (jus cogens) as “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”. However, the drafters of the Convention were careful to confine the definition to “the purposes of the present Convention” (article 53). What is more, the Convention is discreetly silent as to what norms are actually envisaged for this category.[8] In the few cases where the International Court of Justice (ICJ) was brought face to face with the subject, except where it was quoting the parties or from other sources, the Court always adopted the term ‘erga omnes’[9] instead of ‘jus cogens’, thereby shifting the focus from the nature of the alleged norms to the nature of the obligations arising from those norms. In so doing the Court avoided making a definitive pronouncement on jus cogens.[10] In Furundzija, the International Criminal Tribunal for the former Yugoslavia (ICTY), while holding that the prohibition on torture had reached the status of a jus cogens norm and imposed upon States obligations erga omnes, seemed to regard “principles such as those prohibiting genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self-determination” also as jus cogens norms.[11]
Thus it can be seen that opinions still differ as to the exact scope and content of the body of jus cogens. As Brownlie aptly comments, “more authority exists for the category of jus cogens than exists for its particular content”.[12] It may be asked how a discussion of the effect of jus cogens human rights norms can be intelligently conducted without knowing clearly what they exactly are. However, the difficulty lies not so much in the accurate enumeration of jus cogens norms as in the manner in which those norms are to be applied to human rights litigation. Assuming that jus cogens norms can be accurately identified, their application to displace State immunity is still problematic under the present circumstances.
The abrogation theory has a number of difficulties, requiring it to assume that: (1) international law is a hierarchical system; (2) jus cogens norms can be clearly identified; and (3) the effects of jus cogens norms are not confined to the law of treaties. It will be shown that, even if all these assumptions can be granted, the abrogation theory still remains untenable.
Underlying the abrogation theory is what might be called a “hierarchy-trump hypothesis”, which maintains that jus cogens norms, being of a higher status, trump, override, supersede, or displace, non-jus cogens norms (State immunity being held to be a non-jus cogens norm). At the level of international law, this postulates a hierarchy of international legal norms, with jus cogens norms at the pinnacle and “ordinary” rules of international law down the scale. On the plane of national law, the hypothesis would require that domestic law give jus cogens a direct effect, with the result that domestic legal rules in disagreement with jus cogens shall be invalidated, modified, or reinterpreted. According to Karagiannakis, for example, international law requires refusal of immunity if a State violates fundamental human rights encompassed in the concept of jus cogens norms, even if the violation has no connection with the forum State. This is typically justified by either a hierarchy of norms approach or implied waiver. According to the former, jus cogens norms by definition preclude a grant of immunity; while the latter holds that the act of violation itself is to be equated with an implied waiver of immunity.[1]
Thus the abrogation theory amounts to arguing that jus cogens norms not only give the private party a cause of action but also require, or authorise, a denial of immunity to foreign States in respect of allegations of human rights violations wherever occurring. But this cannot happen unless these norms carry with them a procedural element to this effect, or unless there is a further norm demanding denial of immunity where jus cogens norms are at stake. In either case one is presupposing the existence of a general exception to immunity on the basis of jus cogens norms, but this is exactly what one needs to prove. Besides, whether there is indeed a hierarchy of norms in international law still seems to be an open debate.[1] For the sake of argument, it is assumed here that such a hierarchy exists.
The Vienna Convention says nothing more than that a treaty in conflict with a jus cogens norm is void,[14] and an ambivalence can be observed elsewhere regarding further effects of jus cogens beyond invalidating incompatible treaties.[15] Indeed, in the (so far) most comprehensive work on jus cogens, the sole invalidating power of jus cogens lies in the area of the law of treaties, while the mode of response to possible violations of peremptory norms seems exclusively to be collective action taken by the international community as a whole through UN bodies.[16]
On the other hand, there seems to be a growing belief that the effects of jus cogens may extend beyond the context of the law of treaties.[17] Recent developments indicate an extension of the scope of ‘derogation’ so as to cover customary rules as well. This is certainly a corollary of the compelling nature of jus cogens. In the words of Crawford, “It is difficult to accept that a rule should be sacrosanct in one context and freely prescriptible in another”.[18] In Furundzija, the ICTY held that a jus cogens norm enjoys:[19]
…a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
Article 40 of the 2001 International Law Commission (ILC) Draft Articles on State Responsibility defines “a serious breach by a State of an obligation arising under a peremptory norm of general international law” as a breach that “involves a gross or systematic failure by the responsible State to fulfill the obligation”.[2] Here what entails State responsibility is the gravity, not the mode or form, of the breach. Clearly, the ILC envisages that a jus cogens obligation could be breached by means other than the conclusion of a treaty.[21] For our purposes it is here assumed that jus cogens norms have legal effects outside the sphere of the law of treaties. The point is, however, even on such an assumption, the abrogation theory still has its difficulties, as can be illustrated by the prohibition of torture.[22]
It is widely accepted that the prohibition of torture is now a jus cogens norm.[23] The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention)[24] has played a pivotal role in the evolution of this norm. The salient feature of the Torture Convention is that it deals with the substantive prohibition and the exercise of jurisdiction over the acts and perpetrators of torture in separate articles. Thus, article 2(1) provides that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”, while article 4 lays upon each State Party the obligation to “ensure that all acts of torture are offences under its criminal law” and to “make these offences punishable by appropriate penalties”. The question of jurisdiction is dealt with in article 5, which provides:
(1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences…in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. (2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him…to any of the States mentioned in paragraph I of this article…
Under article 14(1), “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.”
It must be pointed out from the outset that it would be highly formalistic to regard the separate provisions as indicating that the obligation to prevent and punish torture (articles 2 and 4), the obligation to establish jurisdiction (article 5) and the obligation to provide redress and compensation (article 14), are completely separable and unrelated obligations. The individual’s right not to be subjected to torture and the correlative obligation on the State to prevent and punish acts of torture, in order to be meaningful and not illusory, must entail the existence of procedural rules establishing jurisdiction and enforcing such a right and obligation. It would be senseless to speak of the prohibition of torture without laying down procedural rules whereby perpetrators of torture can be brought to justice. Without articles 5 and 14, articles 2 and 4 would be devoid of any practical significance. Thus, the prohibition of torture must of necessity either contain as its inherent component a procedural element dealing with jurisdiction, or entail procedural effects, including remedies.[25] And this may be true of other human rights norms, whether or not they can be considered as of a jus cogens character.
But here we are immediately confronted with a difficult question: when we say that the prohibition of torture has become a norm of jus cogens, are we suggesting that only the prohibition in its narrow sense (that is, a ban on torture) has become jus cogens, or are we implying that both the ban and the related jurisdictional rules, including remedies, have become jus cogens? Specifically, does this jus cogens norm encompass only those articles in the Torture Convention (such as articles 2 and 4) that address the substantive obligation on the State to prohibit and punish torture, or does it also include those articles that are essentially of a procedural nature (such as articles 5 and 14)?[26]
This question is of crucial importance for the discussion of jus cogens. For if the prohibition of torture should only be a narrowly defined substantive norm, then no procedural rule could be derived from this norm alone and, accordingly, this norm would have no bearing on the issue of State immunity, which is by definition a procedural problem. If, on the other hand, the prohibition of torture has both a substantive and a procedural element, a State will be obligated not only actively to prevent and punish torture, but also to provide the victims (and their relatives) with remedies, including compensation. The point is, whether or not a jus cogens norm contains a procedural element, it is difficult to derive a denial of State immunity from such a norm alone.
Assuming that what is peremptory is simply a narrowly defined prohibition of torture, that is, a rule that prohibits any conduct authorizing or condoning torture, then, whatever form the ‘derogation’ may take, it relates first and foremost to a substantive obligation upon States not to commit, or allow to be committed, any act of torture. But such a substantive obligation to refrain from torture should not be confused with an obligation of voluntary submission to foreign national courts. It certainly requires more than a substantive rule for a court to be able to adjudicate upon claims against another State based on alleged acts of torture committed outside the jurisdiction of, or having no connection with, the forum State. As the ICJ in the East Timor case more succinctly put it, jurisdiction and the status of a substantive rule are two different things.[27] More recently, the ICJ further clarified that:[2]
it does not follow from the mere fact that rights and obligations erga omnes are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute.
The issue can also be approached from the angle of the rule of immunity. In the view of Fox:[2]
State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite.
Thus, in order for a national court to have jurisdiction over a foreign State for alleged acts of torture committed within the latter’s own territory, the jus cogens norm, besides having a substantive element outlawing torture, must of necessity contain a procedural element to this effect. Does the present norm have such an element? Or can it have that?
A closer inspection of article 5 of the Torture Convention will reveal that the jurisdiction conferred by the Convention, though so extensive as can be regarded as universal in character, is nonetheless founded on well-established jurisdictional bases, such as territoriality (article 5(1)(a)), nationality (article 5(1)(b)) and passive nationality (article 5(1)(c)) principles. Article 5(2) may lead to an exercise of jurisdiction over acts of torture that have no territorial or nationality connection with the State of the forum, but that jurisdiction has to be activated by the presence of the alleged offender in the territory of the forum State. There is no jurisdiction under the Torture Convention for acts of torture having no connection with the forum State. A court cannot exercise jurisdiction over the offender in absentia.
Second, the ‘offender’ as envisaged by article 5 is clearly an individual, not a State, and the ‘offences’ are then acts of torture committed by individuals, not by the State qua State. Thus, in the context of the Torture Convention, there is no such thing as an ‘offending State’.[2] In the absence of a rule authorizing national courts to do so, they cannot exercise jurisdiction over a foreign State for acts of torture committed within the territory of that foreign State.
Third, the Torture Convention is silent on the question of State immunity. The reason for the silence may be a matter of conjecture but one thing is clear, that is, in the absence of a specific provision dealing with State immunity, the interpretation and application of the Torture Convention should be subject to existing rules of international law pertaining to this matter. The existence of universal jurisdiction does not necessarily entail a loss of immunity, as has been affirmed in unequivocal terms by the ICJ.[29]
If the Torture Convention and the practice surrounding it do not contain any rule compelling a denial of immunity to a foreign State for alleged acts of torture, it would be difficult to show the existence of such a rule elsewhere.[30] More generally, a careful survey of relevant practice indicates that: [31]
Whilst certain of the most serious human rights violations are increasingly recognised as violations of jus cogens, there is no evidence that this finding in itself carries with it an obligation on the Forum State to provide the victim with civil remedies when the acts are committed by a foreign State outside the territory of the Forum State.
In general, there does not yet seem to be a rule in current international law denying immunity to States before foreign national courts for alleged violations of human rights committed outside the territory of the Forum State.[32]
The abrogation theory has a logical difficulty. If there should exist only one jus cogens norm in international law, then it would be understandable that this norm could override all other norms in conflict with it. But if there should exist two or more jus cogens norms, as is definitely the case in current international law,[33] then they must not override each other, otherwise there would ultimately be only one or no jus cogens norm left. In other words, if there should exist two or more jus cogens norms, then no conflict could be presumed between them, since one of each pair of conflicting norms must be eliminated, leaving ultimately a group of jus cogens norms that do not conflict each other.[34] Like the dissenting judges in Al-Adsani v United Kingdom, all the writers favouring the hierarchy fiction start with the assertion (or an unexpressed belief) that human rights norms are jus cogens while State immunity is not,[35] so that the latter can later be conveniently disposed of by an alleged jus cogens norm, but it has never been adequately explained why State immunity (to be more exact, the present restrictive immunity doctrine) should not be a jus cogens norm as well. This preconceived, unproven idea begs the question; for, if State immunity was also a jus cogens norm, then it would not be capable of being overridden by another jus cogens norm on a different subject matter: a jus cogens norm of State immunity cannot but co-exist with a jus cogens norm against torture. Since the whole argument is perched precariously upon the notion that State immunity is not, or should not be, a jus cogens norm, it would collapse if State immunity could be shown also to be a jus cogens norm.[36] Of course one may contend that it is often the case that norms of the same status potentially conflict and that a resolution of this conflict has to be effected by means of interpretation. But what will be proposed then would be an entirely different argument from the present one based on the asserted non-jus cogens character of State immunity.
Yet, even if State immunity should be a non-jus cogens norm, there would still exist insurmountable difficulties for the abrogation theory. If it can be said that State immunity “is trumped by jus cogens”,[37] or that “international law against torture is…a jus cogens, or compelling law, which overrides…sovereign immunity”,[38] or that “the prohibition of torture, being a rule of jus cogens…deprives the rule of sovereign immunity of all its legal effects in that sphere”,[39] or that “[i]n the event of a conflict between a jus cogens rule and any other rule of international law… the conflicting rule is null and void”,[40] the conclusion is inescapable that a jus cogens norm destroys a non-jus cogens norm. That is, by attributing the overriding effect simply to the fact of jus cogens being jus cogens, such a theory would apparently be suggesting an overall incompatibility between jus cogens rules and non-jus cogens rules, regardless of their subject matter; for non-jus cogens rules, merely because of their inferior status, would be overridden by jus cogens rules. In other words, jus cogens rules and non-jus cogens rules cannot logically co-exist. But then it would be impossible to conceive of a “vertical international legal system”[41] presumably comprising both types of rules.
Apart from this self-contradictory “status” theory, further difficulty arises in regard to the question of conflict. In the opinion of the dissenting judges in Al-Adsani, if there is a conflict between a jus cogens norm and a non-jus cogens norm, the jus cogens norm renders the non-jus cogens norm “null and void”, that is, overrides or destroys it. Considering that a treaty which, at the time of its conclusion, conflicts with a jus cogens norm is void ab initio and in its entirety,[42] that any existing treaty becomes void and terminates once a contrary norm of jus cogens emerges,[43] and that the consequences of any act performed in reliance on any treaty provision in conflict with a jus cogens norm must be eliminated as far as possible,[44] if the operation of the notion of jus cogens were to be extended beyond the context of the law of treaties, so that jus cogens would have the same effect vis-à-vis, say, rules of customary international law, the word ‘override’ cannot be understood as meaning anything less than a complete destruction (namely, rendering ‘null and void’). Then an important question arises: what do we mean by ‘conflict’?
Surely the conflict cannot be deduced from the sole fact that one norm is jus cogens while the other is not; that is, there cannot be a “presumption of conflict” between a jus cogens and a non-jus cogens norm: we cannot assume that, because a particular norm is not jus cogens, then it should automatically conflict with any jus cogens norm, and that for that reason it should be overridden by that jus cogens norm. For if an override should result solely from the peremptory character of jus cogens, in the sense that a jus cogens norm should override a non-jus cogens norm simply because the former is jus cogens while the latter is not, that would amount to saying that any jus cogens norm automatically overrides any non-jus cogens norm, or that one single jus cogens norm can override all non-jus cogens norms, or, alternatively, that all jus cogens norms collectively override all non-jus cogens norms. In short, we would be claiming that jus cogens norms can, either single-handedly or as a combined effect, override or destroy all non-jus cogens norms. This would lead to an absurd result.
As shown above, the abrogation theory in essence depends on two premises: (1) there is in international law a hierarchy of international legal norms, which are classified as jus cogens and non-jus cogens ones; and, as a consequence, (2) jus cogens norms automatically override non-jus cogens ones (that is, a blanket trump rule). From these two premises the theory concludes that, therefore, jus cogens norms override State immunity, the latter being asserted to be a non-jus cogens norm. But the two premises tend to cancel each other. By classifying international legal norms as jus cogens and non-jus cogens and ordaining a pecking order to them, the hierarchy fiction actually implies, and relies for its survival upon, a co-existence of jus cogens and non-jus cogens norms. But then jus cogens norms must not automatically override or destroy non-jus-cogens norms, for otherwise all non-jus cogens norms would be wiped out or otherwise cease to operate, and there would be nothing left of international law but a handful of watchful, self-assertive jus cogens norms. This means that the coexistence would vanish, and the hierarchy theory itself would break down. It follows that the hierarchy theory is incompatible with a blanket trump rule.
Therefore, one must not maintain that any jus cogens norm can override any non-jus cogens norm. That is to say, a jus cogens norm cannot override all ordinary norms: it can only override some ordinary norms, but not others. To be more exact, a jus cogens norm overrides only those non-jus cogens norms that are in conflict with it.[45] We are back to the question: What do we mean by ‘conflict’? As demonstrated above, there cannot be a “presumption of conflict” between any jus cogens norm and any non-jus cogens norm. For there to be a conflict between a jus cogens norm and a non-jus cogens norm, there must exist some kind of close relationship between them: the jus cogens norm must contain something that the non-jus cogens norm cannot derogate from, or, conversely, the non-jus cogens norm must contain something that is incompatible with the jus cogens norm. Only then can we talk meaningfully of a conflict.
Thus, as far as State immunity is concerned, a jus cogens norm cannot override State immunity (here assumed to be non-jus cogens) unless that jus cogens norm contains a stipulation to the effect that there is no immunity for the violation of the jus cogens norm. Then in what terms should this stipulation be formulated? It has to be stressed that the word ‘immunity’ in this connection means that a State cannot, without its consent, be brought before a foreign national court; and this immunity extends to those individuals or bodies that can be identified with or assimilated to the State.
Suppose the stipulation is framed as a permissive or discretionary rule: “A State violating this jus cogens norm may be denied immunity”, or, “the court may deny immunity to a State that has violated this jus cogens norm.” That is, the court has some measure of discretion: it can choose either to give effect to the jus cogens norm by denying immunity or not to do so. As a consequence, immunity might be granted even if a jus cogens norm has been violated. But this would mean that a jus cogens norm does not automatically override State immunity. In other words, a State does not automatically lose its immunity simply by violating a jus cogens norm. Then the argument that “when a State violates jus cogens, it loses its immunity” (i.e. jus cogens overrides immunity) becomes only partially true.
This is quite contrary to what is asserted by proponents of the override hypothesis. The override hypothesis, in order to stand, must of necessity claim that the denial/loss of immunity encapsulated in the jus cogens norm is an obligation binding upon a court instead of an authorised discretion. That is, the stipulation should be cast as a mandatory or compulsory rule: “a State violating this jus cogens norm shall be denied immunity”, or, “the court shall deny immunity to a State that has violated this jus cogens norm.” Simply put, if the denial of immunity should be part of the jus cogens norm, it would have to be an obligation incumbent upon every State and its courts. This obligation would have to be fulfilled by either an active assertion of jurisdiction over acts of torture committed within a foreign State (that is, outside the forum State) or a denial of immunity in judicial (or quasi-judicial) proceedings already pending before a court. Such an exercise of jurisdiction would consist in either the criminal prosecution of a foreign State for acts of torture, the initiation of civil proceedings for compensation, or, where proceedings have already been brought by private individuals against a foreign State, the rejection of a claim of immunity submitted by that foreign State or an ex officio refusal to grant immunity in default of an appearance by the defendant foreign State. Conversely and correlatively, such an exercise of jurisdiction would entail a legal obligation on States of compulsory submission to the jurisdiction of foreign national courts.
But this would give rise to an even more serious problem. If States should be under an obligation to exercise jurisdiction, then a State that should fail to do so would be derogating from the jus cogens norm because it did not apply the norm to the full. Thus if one State violated a jus cogens norm, all other States would violate the norm as well, unless, of course, they fulfilled the obligation to take jurisdiction. Again take torture as an example. Such an exercise of jurisdiction would require that the jus cogens norm against torture consist of two stipulations: (1) that torture is prohibited; and (2) that a State committing torture within its own territory[46] shall be denied immunity before a foreign national court. Thus if one State committed torture, thereby violating this jus cogens norm, all other States would violate it also, unless they took jurisdiction. But the Torture Convention does not contain such an extensive jurisdictional clause, nor do States in reality seek to assert such a sweeping jurisdiction, even though the perpetration of torture is widespread in the world, just as the failure is equally prevalent of States to take jurisdiction over other States (or their officials).[4]
In the phraseology adopted by article 53 of the Vienna Convention, this situation would lead to two conclusions. First, this would indicate that “the international community of States as a whole” is collectively unaware of such a far-reaching obligation, in which case the existence of a jus cogens norm to this effect would be called into question, because it would be impossible to talk about such a norm having been “accepted and recognized by the international community of States as a whole” [emphasis added] as a jus cogens norm, a formula that implies not only awareness but also positive action. Second, even if the international community were aware of such an obligation, the prevalent failure to assert jurisdiction or deny immunity would mean that this norm would have long been derogated from by the international community of States as a whole. Then by definition it would cease to be a jus cogens norm, because it would not have been “accepted and recognized…as a norm from which no derogation is permitted” [emphasis added]. Seen in this light, the abrogation theory actually undermines the very peremptory character of jus cogens, thereby doing this notion a serious disservice.
Thus, as international law currently stands, a denial/loss of immunity cannot logically be part of a jus cogens norm prohibiting a certain violation of human rights. In other words, a jus cogens norm cannot simultaneously contain a substantive element prohibiting certain conduct and a procedural element authorizing or obligating domestic courts to exercise jurisdiction against a foreign State for offences committed in the territory of the latter. Simply put, under current international law, a jus cogens norm cannot logically contain a jus cogens procedural element.[4] It follows that a denial/loss of immunity cannot be deduced solely from the jus cogens character of the norm against torture or, by extension, from the peremptory nature of any jus cogens human rights norm.
To sum up, under current international law, it is impossible to derive a rule denying immunity from the peremptory character of jus cogens alone. A denial/loss of immunity cannot be demonstrated simply by showing a certain norm to be jus cogens, nor by inserting into a norm a jus cogens negation of immunity. The denial of immunity has to be effected by something extraneous to the jus cogens norm. That is, the fact that a jus cogens norm is jus cogens does not automatically displace immunity: the jus cogens norm has to be assisted by another, separate and independent, norm (whether jus cogens or not) to the effect that “a State violating jus cogens is not entitled to immunity from suit before the courts of another State”. Thus what we need at present is actually TWO norms: one prohibiting violation and the other denying immunity to the State committing such violation. The procedural rule of denial of immunity cannot be distilled from the substantive jus cogens rule of ban on torture and can only be developed separately outside the ban. As international law now stands, the assertion that, because certain human rights norms are jus cogens, immunity is automatically overridden by them is a logical impossibility.
There is yet another confusion with regard to jus cogens. The starting point is the suggestion that jus cogens binds States without their consent.[48] Such a ‘binding-without-consent’ theory has since early times been translated by some into an automatic loss of immunity: [49]
Jus cogens norms…do not depend on the consent of individual states, but are universally binding by their very nature. …when a state violates such a norm, it is not entitled to immunity.
Besides containing the above-discussed error of deducing a loss of immunity solely from the peremptory nature of jus cogens, this view both runs foul of the language of the Vienna Convention[50] and lacks support in practice.[5] In any event, by saying that jus cogens binds a State without its consent, we are saying no more than that a State has a peremptory, substantive obligation to refrain from acts constituting violations of jus cogens. Here ‘consent’ means consent to the binding nature of jus cogens, not consent to domestic jurisdiction of another State. Thus, even if ‘consent’ could be established, or, for that matter, even if jus cogens could have binding force without a State’s consent, it still could not lead to amenability to a foreign national court, for consent to undertake a substantive obligation and consent to submit to the jurisdiction of a court are two different things. To derive a loss of immunity from the ‘binding-without-consent’ theory is to confuse a substantive obligation with a procedural commitment. It would be surprising if the binding character of jus cogens alone can empower a national court to prosecute or sit in judgment over another State for such violations without the latter’s voluntary submission, either ante hoc or ad hoc. The obverse is also true, a State has no obligation to appear before the courts of another State for jus cogens violations unless there is an express rule obliging it to do so. If God says “Thou shalt not kill”, then we are forbidden to kill; but it would be strange if from this alone we were to draw the inference that everyone were to be everyone else’s judge, for that would presuppose a further commandment, namely, ‘“Thou shalt be thy neighbour’s judge.’ In a word, in stating that a State violating jus cogens should be denied immunity before the courts of another State, one is actually stating – and one should state – two norms instead of one: (1) that States are forbidden to violate jus cogens norms; and (2) that a State that violates jus cogens norms shall not be immune before foreign national courts. The first is demonstrably true; but the second does not yet exist in current international law.
The argument goes that foreign States waive their immunity by implication when they violate jus cogens norms of international human rights law.[5]
It would be still more difficult to contend that a State violating jus cogens human rights norms has impliedly waived its immunity before a foreign national court. First, in order to be able to waive something, one must have it in the first place; so such a contention would imply that a State, as a matter of basic principle, enjoys immunity for violations of human rights, or else why does it have to waive the immunity? Thus such a waiver theory serves rather to confirm immunity than to contest it. Secondly, a waiver would have to posit some conscious action or at least some manifestation of intention on the part of a State, indicating its willingness to submit to a foreign national court, and this would be inexplicable when a State in one way or another attempts to defend its immunity.[52] In either case, it would be self-defeating to claim that, by the act of violation alone, a State implicitly waives its immunity.
In short, the abrogation theory advanced in the present literature is, unfortunately, unconvincing. The argument itself is inherently inconsistent, based on unproven premises, and fraught with various confusions of concepts. The greatest merit of this theory consists, not in its legal tenability, but in affording a strong moral basis for arguing against immunity for violations of human rights. It is only in this moral sense that the abrogation theory can be of assistance to existing rules for the protection of human rights.
At the level of national law, the proposition that jus cogens norms displace or disapply immunity would amount to giving a direct procedural effect to jus cogens norms in national courts. But it is highly disputable whether jus cogens norms are directly applicable in the absence of a domestic rule to this effect;[53] and the abrogation theory has been repeatedly rejected by national courts.
The US Supreme Court, interpreting the US Foreign Sovereign Immunities Act of 1976 (FSIA)[54] in Amerada Hess, drew “the plain implication that immunity is granted in those cases involving alleged violations of international law that do not come within one of the FSIA’s exceptions”.[55] In that case, the plaintiff brought a claim for damages for the bombing of an oil tanker (which later had to be scuttled) in 1982 by Argentine military aircraft during the Falklands/Malvinas War between the UK and Argentina. Since the incident had taken place on the high seas, jurisdiction was claimed on the basis that the attack was in violation of the law of nations. The US Supreme Court granted immunity on the grounds that “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country, and that none of the enumerated exceptions to the Act applies to the facts of this case”.[56]
Although the notion of jus cogens was not expressly pleaded in Amerada Hess, the decision set the keynote for subsequent US jurisprudence. In particular, after Amerada Hess, any claim against a foreign State in a US court must be framed in terms of one of the exceptions in the FSIA. As there is no jus cogens exception to immunity in the FSIA, the applicant naturally has to squeeze a previously unknown exception to immunity into the tight-fitting scheme of the FSIA. This practical necessity underlies and shapes the “implied waiver” theory, which, under Section 1605(a)(1) of the FSIA, seems to be the most congenial to the jus cogens argument.[57] Hence the argument that foreign States waive their immunity by implication when they violate jus cogens norms of international human rights law.
In the Siderman case, an action was brought in the US against Argentina for torture committed in Argentina by Argentine military personnel. The appellants argued, among other things, that State immunity was trumped or superseded by the jus cogens norm of prohibition of torture. The Circuit Court agreed that the prohibition of official torture had attained the status of jus cogens and that any State engaged in official torture violated jus cogens; but the Court nonetheless held that that alone did not strip Argentina of immunity in the absence of an express provision in the FSIA. The Court decided that it had to follow the Supreme Court’s emphatic holding in Amerada Hess that the FSIA was the sole basis for a claim against a foreign State, so that immunity was to be granted in those cases that did not come within one of the FSIA’s exceptions, even if they might involve alleged violations of international law. The Court concluded that “if violations of jus cogens committed outside the United States are to be exceptions to immunity, Congress must make them so. The fact that there has been a violation of jus cogens does not confer jurisdiction under the FSIA”.[58]
In an important later case, in which the plaintiff alleged unlawful detention and acts of torture in Saudi Arabia, the argument of jus cogens did not appear at all. The case was argued and decided solely under Section 1605(a)(2) (commercial activity) of the FSIA.[59]
The reasoning in Amerada Hess and Siderman was explicitly followed by the English courts in the Al-Adsani case. This case is a good illustration of how the argument of jus cogens is usually advanced for the purpose of overcoming the impossibility of suing a foreign State in the absence of a statutory provision. Al-Adsani instituted civil proceedings in England against Kuwait and three individual defendants in respect of torture in Kuwait and threats made against him after his return to England. The High Court drew a distinction between the acts alleged to have taken place in Kuwait and those alleged to have occurred in England. As to the former, the Court found that the clear language of the 1978 UK State Immunity Act (UK SIA)[60] conferred immunity upon foreign sovereign States for acts committed outside the jurisdiction of English courts. As far as the latter were concerned, the Court was not satisfied on the balance of probabilities that the Kuwaiti Government was responsible for the threats. As a result, the tort exception provided for by Section 5 of the UK SIA did not apply and the Kuwaiti Government was immune in respect of these allegations.[61]
On appeal by Al-Adsani, the Court of Appeal held that the important question was whether State immunity applied in respect of the alleged events in Kuwait. Stuart-Smith LJ understood the argument to be “that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of sovereign immunity”.[62] However, according to him, “the [1978] Act is a comprehensive code and is not subject to overriding considerations”.[63]
In the opinion of Ward LJ:[64]
Unfortunately, the Act is as plain as plain can be. A foreign State enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that State immunity is afforded in respect of acts of torture committed outside this jurisdiction.
Thus, the prohibition of torture under international law does not lead to a denial of State immunity in the absence of a statutory provision expressly authorizing a court to do so. Since there is no jus cogens exception to immunity in the SIA, a foreign State still enjoys immunity in respect of torture or other acts contrary to international law not falling within one of the express exceptions.
Al-Adsani contended before the ECHR that the prohibition of torture had acquired the status of a peremptory norm (jus cogens) in international law, taking precedence over treaty law and other rules of international law. The majority of the judges, while accepting that the prohibition of torture had achieved the status of jus cogens, held that this alone could not displace immunity: [65]
Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern…any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.
Hugo Princz, a US citizen of Jewish origin, brought an action for damages against Germany based on his internment and barbaric treatment by the Nazi regime during World War II. The District Court held that Germany was effectively estopped by reason of the atrocities of the Nazis from relying on State immunity. Judge Sporkin, giving the judgment of the Court, denied immunity in an impassioned pronouncement:[66]
A government which stands in the shoes of a rogue nation the likes of Nazi Germany is estopped from asserting U.S. law in this fashion.
On appeal by the German government, it was argued that the Third Reich had impliedly waived Germany’s sovereign immunity under the FSIA by violating jus cogens norms of the law of nations. The Court of Appeals responded by saying that a violation of jus cogens did not form a basis for jurisdiction under the FSIA. In addition, for a court to find that a State had impliedly waived its immunity, there had to be strong indications that the State intended to do so. In the absence of such indications, the Court could not conclude that violation of jus cogens norms by the Third Reich constituted an implied waiver of immunity under the FSIA.[67]
In Smith, where claims were brought against Libya for the Lockerby bombing, a US Circuit Court made a detailed analysis of the contention of an implied waiver of immunity in respect of jus cogens violations. Finding that Congress illustrated the implied waiver exception under the FSIA “with examples drawn entirely from the context of conduct related to the litigation process” [emphasis added],[6] the Court rejected the argument that a jus cogens violation constituted an implied waiver, on the ground that “Congress did not intend the implied waiver exception of section 1605(a)(1) to extend so far, however desirable such a result might be”.[6]
In this case, Germany was sued in a US court for reparations from funds created for Holocaust survivors. It was argued that, when violations of jus cogens norms were concerned, immunity was automatically lost. Instead of directly engaging the argument of jus cogens, the Circuit Court fell back on a cluster of grounds, ranging from legal and technical to generally political considerations.[6] The Court said: [69]
We do not question that the allegations in Sampson’s complaint rise to the level of jus cogens violations – they are a paradigm case – but that does not mean that Congress intended an implicit waiver provision to encompass this expanding legal doctrine.
The Court concluded that: “Congress did not create an implied waiver exception to foreign sovereign immunity under the FSIA for jus cogens violations.”[70] The argument of jus cogens has been rejected by US courts in other cases as well.[71]
Bouzari brought proceedings in Canada against Iran, alleging that he had been wrongfully jailed, tortured and threatened with death in Iran, because of his involvement in an oilfield project, and that his family had been forced to pay large sums of money to secure his release. He had subsequently taken up residence in Canada. The court held that Iran was immune.[7]
The plaintiff argued, among other things, that the prohibition against torture was a norm of jus cogens, which obliged Canada to provide a right to sue a foreign State in a Canadian court for damages for torture committed outside Canada. Swinton J commented, perceptively, that:[7]
This is not really an argument based on jus cogens, but rather a suggestion that I should take a step in developing a new exception to state immunity.
However, the judge concluded that:[7]
…there is no principle of customary international law which provides an exception from state immunity where an act of torture has been committed outside the forum, even for acts contrary to jus cogens. Indeed, the evidence of state practice…leads to the conclusion that there is an ongoing rule of customary international law providing state immunity for acts of torture committed outside the forum state.
All the above cases involved acts committed by foreign States outside the forum State. In such cases the most important issue for national courts should not, in fact, be the question of immunity, but that of jurisdiction. For immunity presupposes jurisdiction. If jurisdiction, whether over the foreign State or over its officials, cannot be established in the first place by virtue of rules of international law, then the issue of immunity should not arise. The courts quoted here do not seem to have been fully aware of this point, for they often directly approached the issue of immunity without first asking whether they already had jurisdiction over the case. However, it is at least clear that, in the opinion of these courts, there is currently no rule of customary international law compelling a denial of immunity for violations of jus cogens human rights norms committed outside the forum State. This said, the strong moral force of the jus cogens argument, and the resultant distastefulness of its rejection, are also clearly appreciable.
The Distomo, the Ferrini and the Pinochet cases deserve separate treatment because, unlike in the cases discussed above, the courts in these three cases, in denying immunity to the respective defendants, adopted a positive stand on the role of jus cogens. However, a careful examination of the three cases will reveal that they cannot serve as precedents for the assertion that jus cogens, without more, can displace immunity.
In 1995, the Prefecture of Voiotia in southern Greece and some individual claimants brought a claim of indemnity before a local Greek court against Germany on the basis of wilful murder and destruction of private property committed by German occupying forces in the Greek village of Distomo in 1944. The court entered a default judgment for the claimants and awarded damages of approximately $30 million.[7]
In asserting its jurisdiction over the case, the court first noted that, under international law, immunity enjoyed by foreign States was extended only to sovereign acts (acta jure imperii) but not to acts committed by the foreign State as a private party (acta jure gestionis).[74] It then observed that the obligation imposed by the Regulations annexed to the Hague Convention (No. IV, 1907) Respecting the Laws and Customs of War on Land on the occupying forces to protect certain rights, such as the rights to life and property, was part of jus cogens. The court concluded that, where a State acts in breach of a rule of jus cogens, that State loses its right to invoke sovereign immunity.[75] Besides holding that Germany had tacitly waived its immunity by acting in breach of jus cogens,[76] the court declared:[77]
The acts of a state that violate jus cogens norms do not have the character of sovereign acts. In such cases it is considered that the accused state did not act within the ambit of its capacity as a sovereign.
And, finally:[7]
Since the principle of territorial sovereignty is superior to the principle of state immunity, a state that violates the former principle by illegally occupying foreign territory cannot invoke the principle of sovereign immunity for acts committed during that illegal occupation [emphasis added].
The local court’s decision was affirmed by the Areios Pagos (the Greek Supreme Court) upon appeal by Germany.[7] The Supreme Court proclaimed, in particular:[79]
…the torts in question (murders that also constitute crimes against humanity) were…carried out in the territory of the forum by organs of the German Third Reich in an abuse of sovereign power. [Such acts were] in breach of rules of peremptory international law (article 46 of the [Hague IV Convention] Regulations), and they were not acts jure imperii [emphasis added].
The Court concluded that Germany had tacitly waived the privilege of immunity and that Greek courts had jurisdiction to adjudicate the case.[80]
Because the Greek courts in this case happened to invoke the notion of jus cogens in their reasoning, some commentators explicitly or implicitly hold the view that this case mainly concerns the relationship between State immunity and jus cogens,[81] or that this case embodies an existing[82] or an emergent rule[83] that immunity is/should be denied to violations of jus cogens norms, irrespective of where such violations were committed. But this is a mistaken belief, for this case mainly concerned the relationship between State immunity and territorial jurisdiction, not between State immunity and jus cogens; and it does not support the assertion of an existing or emergent rule that jus cogens, without more, overrides immunity.
As is made quite clear by their opinions quoted above, the Greek courts were keenly aware that they were dealing with atrocities that had been committed in Greek territory and therefore they were above all exercising their jurisdiction based on territoriality, a prototypical type of jurisdiction long established in international law. Indeed:[84]
Deliberately to cause harm or damage on the territory of another State by an act of ‘public power’ is, in the absence of some special exception, a plain violation of international law, whether the harm is caused by assassination or invasion. The exercise of local jurisdiction in such cases is an assertion of the forum’s right, acknowledged by international law, to deal with the consequences of unlawful acts on its territory.
The recourse to the notion of jus cogens in the Distomo case might be explicable by the fact that Greece has no national legislation specifically dealing with State immunity. In cases of tortious conduct causing injury/damage within the territory of the forum State, the practice of the States with specific immunity legislation differs from that of the States without such legislation, though the results may not be radically different. In those States with immunity legislation, such as the UK and the US, the courts simply apply the statutory provisions, which base jurisdiction on the territoriality principle, that is, on the tortious conduct or/and actual injury/damage actually occurring within the territory of the forum State, regardless of whether such conduct can be considered as acta jure imperii or acta jure gestionis.[85] Because the jure imperii/jure gestionis distinction is not a statutory requirement for jurisdiction over non-commercial torts, where injury/damage has been caused by a tortious conduct of a foreign State, all the courts have to do is ascertain whether a territorial nexus can be established. They do not have to worry about the characterization of the conduct in question; and the defendant State cannot contend that the conduct in question is jure imperii, entitling it to immunity.[86]
By contrast, in the absence of such legislation, as is the case in Greece and many other countries, the acta jure imperii/acta jure gestionis distinction is virtually the only criterion the courts apply in deciding whether they should grant or deny immunity. Thus, in such countries, the courts must perform two tasks: the establishment of the territorial connection and the characterization of the conduct in question. Once the territorial connection becomes clear, as it did in the Distomo case, the characterization of the tortious conduct becomes central to the courts’ decision; and, correlatively, it is still open to the defendant State to argue for immunity on the ground of the conduct being jure imperii.[87] Such a situation would involve a great measure of ingenuity on the part of the courts in characterizing, say, the delivery of mail for an embassy as not an act jure imperii, but as the operation of a motor vehicle and the use of public roads, that is, jure gestionis.[88] Confronted with certain repugnant conduct committed by foreign armed forces in the course of military occupation, something quintessentially sovereign – jure imperii, the Greek courts, if they intended to exercise jurisdiction and deny immunity, had precisely to perform the difficult task of defeating the argument of jure imperii by characterizing the conduct in question as jure gestionis. But a claim for immunity based on military operations – and therefore firmly grounded in sovereignty – is a forceful one: for the related acts could not be characterized as anything other than acta jure imperii; and denying the sovereign character of the German troops’ prototypical sovereign acts would thus require a theory that is so powerful that even an argument founded on the principle of sovereignty would be vitiated. The notion of jus cogens, with its effect of straightforward nullification of contrary treaty and customary rules and, by extension, contrary acts of States, provided just the counterargument needed. Once the acts in question could be considered as in contravention of jus cogens, then it would be a small step to the conclusion that such acts “do not have the character of sovereign acts” (that is, they are not jure imperii) and “are null and void, and cannot constitute a source of legal rights or privileges, such as the claim to immunity”.[89] In short, because the acts in question contravened jus cogens, immunity should, and must, be denied.
It follows that, in the Distomo case, the notion of jus cogens was employed as a criterion for the characterization of the acts in question, not strictly as a jurisdictional basis. The Greek courts were asserting jurisdiction over acts committed in the territory of Greece; in other words, what gave the Greek courts jurisdiction was not jus cogens, but the fact that the atrocities had been committed within the territory of the forum State. Jus cogens operated to strip the atrocious acts of sovereign attributes when the territorial jurisdiction of the Greek courts was incontestable. Had the atrocities been committed outside Greece, it would be extremely questionable if jus cogens alone would have been sufficient to establish jurisdiction. Seen in this light, the principle of territorial sovereignty, even though placed by the court of the first instance at the very end of its list of grounds for jurisdiction,[90] is actually what decisively clinched the jurisdictional issue.[91] For this reason the Distomo case is of little, if any, value for a discussion on whether immunity should be denied for acts committed outside the State of the forum. Moreover, that the case was brought by Greek nationals also signifies another important jurisdictional link. If, for instance, Greek courts, relying on jus cogens alone, denied immunity to Japan in an action brought by Chinese citizens for atrocities committed by Japanese occupying forces in the then Chinese capital of Nanking during World War II,[92] then we would indeed have a pertinent case for the abrogation theory under discussion in this article.
In many respects the Ferrini case bears a striking resemblance to Distomo. It likewise involved a tort action against Germany for compensation for alleged acts committed by German occupying forces during World War II, this time deportation and forced labour. More important, two jurisdictional links were also present: the case was brought by an Italian national and the alleged acts took place in Italian territory. In a judgment in 2004,[93] the Italian Court of Cassation held that Germany was not entitled to immunity, thus reversing the lower courts’ decisions that had granted immunity on the ground of the alleged acts being jure imperii.
For one thing, the Italian Court of Cassation – rightly – rejected the reasoning of the Greek Supreme Court that Germany, in violating rules of peremptory international law, had tacitly waived its immunity.[94] Noting that deportation and forced labour were crimes under international law, crimes defined as serious violations of non-derogable norms protecting fundamental human rights, the Court of Cassation declared that the grant of immunity in the case of such crimes would hamper the protection of values that are of essential importance to the international community.[95] While the approach that emphasizes the perceived universal values shared by the international community merits further analysis,[96] it is undeniable that the actual basis for the assertion of jurisdiction by the Court of Cassation, like in the Distomo case, was territoriality. This is amply testified by the fact that the Court distinguished Ferrini from the recent case law of other national courts (e.g., Al-Adsani), where immunity was granted to foreign States, on the ground that in all the relevant cases, the violation had occurred in a State other than the forum State.[97] In the sense that the territorial nexus was truly a sine qua non for the denial of immunity,[98] Ferrini added little new to Distomo. Contrary to the view held by some,[99] Ferrini does not provide much support for the denial of immunity for acts committed outside the forum State.[100]
The notion of jus cogens played only a secondary, supportive role in the English House of Lords’ denial of immunity to Pinochet. It served to reaffirm the substantive rule of prohibition of torture, but was treated as insufficient, in the absence of an international convention binding the States concerned, to establish jurisdiction over foreign State officials.
Lord Browne-Wilkinson accepted that the prohibition of torture had reached the status of jus cogens and therefore justified universal jurisdiction wherever the torture was committed.[101] In this connection, being contrary to jus cogens, “the implementation of torture as defined by the Torture Convention cannot be a state function” [emphasis added].[102] The necessity of the Torture Convention for holding torture a jus cogens crime meant that, before the entry into force of the Torture Convention, it was doubtful whether “the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as performance of an official function.”[103] In his opinion, even if the prohibition of torture might have existed as jus cogens before the Torture Convention, the jus cogens character alone was insufficient to preclude immunity. The denial of immunity was made possible only by the Torture Convention, which provided a previously missing universal jurisdiction.[104]
Lord Hope considered jus cogens, which imposed an obligation erga omnes upon all States to punish any conduct in contravention thereof, as an exception to immunity ratione materiae, which protected all acts which the head of State has performed in the exercise of the functions of government.[105] This might suggest that the jus cogens character alone could displace immunity, but then an obligation erga omnes upon States to punish jus cogens offences may mean only to punish such offences committed within their own territories (as in the case of genocide[1]). In the absence of specific international arrangements effected by means of conventions, such an obligation does not readily translate into an obligation (or right) to punish such offences committed in foreign
territory. Lord Hope must have been aware of this, for he went on to state that:[1]
But even in the field of such high crimes as have achieved the status of jus cogens under customary international law there is as yet no general agreement that they are outside the immunity to which former heads of state are entitled from the jurisdiction of foreign national courts.
So recourse was likewise to be had to the Torture Convention:[1]
…once the machinery which [the Torture Convention] provides was put in place to enable jurisdiction over such crimes to be exercised in the courts of a foreign state, it was no longer open to any state which was a signatory to the Convention to invoke the immunity ratione materiae in the event of allegations of systematic or widespread torture committed after that date being made in the courts of that state against its officials or any other person acting in an official capacity.
Thus, it is not the jus cogens nature of the prohibition of torture, but a treaty obligation incumbent upon the States parties (Chile included) to the Torture Convention that prevented immunity from being validly claimed for a former head of State in a foreign national court. Moreover, immunity seemed deniable only in the case of “systematic or widespread torture”.
Lord Hutton took the view that the prohibition of torture had acquired the status of jus cogens by 29 September 1988 (the date on which Section 134 of the Criminal Justice Act of 1988, which was enacted to give effect to the Torture Convention, came into force).[107] Thus, after that date, the commission of acts of torture was not under international law a function of the head of State, and therefore could not be the subject of immunity ratione materiae, which covered only the official functions of the head of State.[108]
The most radical position seems to have been taken by Lord Millett, who started by suggesting that by 1973 the use of torture by State authorities had been prohibited by international law, and that the prohibition had acquired the character of jus cogens, which could form the basis of a universal jurisdiction.[109] Thus, for Lord Millett, “systematic use of torture on a large scale and as an instrument of State policy”, being in violation of jus cogens, “had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction” by 1973. Therefore, at that time, “the courts of this country already possessed extraterritorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it” [emphasis added].[110]
However, as discussed above, even if jurisdiction can be established, this is still insufficient for a denial of immunity, for jurisdiction and loss of immunity cannot be proven at one stroke but instead must be demonstrated separately one after the other.[111] At any rate, Lord Millett did not further pursue his point. Instead, noting the other Law Lords’ view that statutory authority was indeed necessary for an exercise of extraterritorial criminal jurisdiction even in respect of crimes of universal jurisdiction, he proceeded to consider the case on the basis that Pinochet could not be extradited for any acts of torture committed prior to the coming into force of Section 134 of the Criminal Justice Act of 1988, which first conferred the requisite statutory authority.[112] His conclusion was that:[113]
..the Republic of Chile was a party to the Torture Convention, and must be taken to have assented to the imposition of an obligation on foreign national courts to take and exercise criminal jurisdiction in respect of the official use of torture. …International 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 coextensive with the obligation it seeks to impose.
Thus, even if immunity was incompatible with the jus cogens character of the rule against torture, it was a treaty obligation that precluded Chile from claiming any immunity for Pinochet.
Lord Phillips also accepted that torture had attained the status of jus cogens and of obligation erga omnes. Pinochet had engaged in a campaign of abduction, torture and murder in violation of norms of international law and, for this reason, could “have no immunity against prosecution for any crime that formed part of that campaign.”[114] This seems to suggest that Lord Phillips would regard the jus cogens character of the prohibition of torture as sufficient for the denial of immunity; however, he continued:[1]
Each state party [to the Torture Convention] is required to make such conduct criminal under its law, wherever committed. More pertinently, each state party is required to prosecute any person found within its jurisdiction who has committed such an offence, unless it extradites that person for trial for the offence in another state. The only conduct covered by this Convention is conduct which would be subject to immunity ratione materiae, if such immunity were applicable. The Convention is thus incompatible with the applicability of immunity ratione materiae [emphasis added].
Ultimately it was the Convention – and not the jus cogens nature of the prohibition of torture – that decisively disposed of the issue of immunity.
To sum up, in Pinochet, the notion of jus cogens served only to reinforce the argument that torture had long been prohibited in international law. As far as the issue of immunity was concerned, their Lordships expressly or impliedly held that the jus cogens character of the prohibition of torture was insufficient for a denial of immunity. What made a claim of immunity unacceptable was not that torture was against jus cogens, but that the Torture Convention compelled the States parties either to deny, or to refrain from claiming, immunity. In particular, Chile, bound by the Torture Convention to recognise the jurisdiction of foreign States over acts of torture committed by its officials, was precluded from objecting to, or claiming immunity for its officials from, criminal proceedings instituted before the national courts of another State party pursuant to the jurisdiction conferred by that Convention. In other words, although the notion of jus cogens was important in establishing individual criminal responsibility for torture, it was not, as might be thought, adequate in either conferring an extraterritorial jurisdiction on the courts of a State where the torture had not been committed or, even if such jurisdiction could be established, in displacing immunity.
On the other hand, the Torture Convention, which is in force and binding on all the States involved in the proceedings, proved of enormous value and played an indispensable and decisive role in denying immunity to Pinochet. Thus, while the moral force of the abrogation theory is indisputable, the legal force of an effective international convention should never be overlooked.
US scholars are the chief proponents of the idea that a court can exercise jurisdiction over a foreign State for jus cogens violations.[1]
Caplan attempts to solve the tension between State immunity and jus cogens by denying that State immunity exists in international law. He maintains that the whole problem actually does not involve “a conflict between two international law norms, state immunity and jus cogens”, since “state immunity is not a norm that arises from a fundamental principle of international law”.[116] On the other hand, “the principle of state jurisdiction, i.e., a state’s freedom to exercise jurisdiction, especially on the basis of territoriality, through its own governmental institutions, including its national courts” is a norm of jus cogens.[117] Foreign states are entitled to immunity for human rights violations “only to the extent that a forum state grants them that privilege.”[118] More precisely:[119]
Foreign states are not immune from human rights litigation by virtue of a fundamental sovereign right or a rule of customary international law. With ultimate authority both to grant and to rescind the entitlement to immunity in these circumstances, the forum state may establish a state immunity policy in this area unrestricted by international law [emphasis added].
In other words, Caplan tries to solve the problem simply by writing off State immunity. However, his assertion that State immunity does not derive from international law is contrary to the established consensus under current international law,[120] contrary to US law,[121] and indeed contrary to himself.[122] But even assuming that State immunity is entirely a matter for the internal law of the State of the forum, the question of jurisdiction, which is a necessary prerequisite for the issue of immunity, still remains to be resolved.
On this most crucial point Caplan says nothing about whether the “adjudicatory jurisdiction” he contemplates covers only the conduct of a foreign State within the territory of the forum State, or conduct committed anywhere in the world, especially including the conduct of foreign States in their own territories. He is also silent as to whether such jurisdiction should be directed only against individual defendants found in the territory of the State of the forum, or should it be extended to those remaining outside the territory of the forum State (that is, jurisdiction in absentia), or for that matter to foreign States as well. Moreover, since the relevant international conventions refer to gross violations of human rights as criminal offences[123] or otherwise in penal terms,[124] one cannot help but ask what type of proceedings – civil or criminal – he has in mind. On this point again he remains silent. The permutation and combination of different extents of jurisdiction, different prospective defendants and different types of proceedings will yield an infinite range of modalities of exercising jurisdiction, each subject to distinct rules and procedures. The result will be a dazzling array of possibilities.
If the jurisdiction as proposed by Caplan relates only to civil proceedings for conduct committed within the territory of the forum State, then it is nothing but a restatement of the jurisdiction which is already being exercised by various courts over tortious conduct under current international law of State immunity. If, however, such jurisdiction extends to conduct committed anywhere in the world and covers both civil and criminal proceedings against a foreign State, then Caplan is proposing the most extensive jurisdiction ever known to international law. For this would mean that the authorities of a State would have the necessity to investigate alleged human rights violations committed in the territory of a foreign State; then the investigating State would of necessity seek to exercise its sovereign powers in the territory of another State without the latter’s consent, a scenario in direct contradiction to Caplan’s declared fundamental principle of territorial jurisdiction. The problem does not stop here, for upon necessary investigation being completed, the courts of the investigating State would, in Caplan’s view, have the power to adjudicate upon the alleged violations, to award damages against the foreign State, or even to entertain criminal proceedings against the foreign State qua State.
The only qualification Caplan seems to hit upon for such a ubiquitous and omnipotent jurisdiction, embodying “a state immunity policy…unrestricted by international law”, seems to be the nexus of nationality between the alleged victim of human rights violations and the forum State. In his words, “state conduct that does not enhance interstate relations, such as the abuse of citizens of the forum state, should not be entitled to immunity protection”.[1] Should this be the case, then Caplan would be seriously mistaken if he should believe that only US courts would exercise such a jurisdiction; for he must concede that courts of other States would be equally entitled to sit in judgment over violations of human rights of their citizens by or attributable to the US Government, even if such violations occurred in US territory. This would likewise make significant encroachments upon the territorial sovereignty of the US, a situation he is definitely not prepared to entertain, given his firm belief in the “principle of exclusive state jurisdiction”.[1]
Other US scholars proffer essentially the same formula but attempt specifically to limit the application of jus cogens to the benefit of US nationals. For example, some propose an amendment to the US FSIA embodying a denial of immunity to foreign States by virtue of jus cogens, but limit it only to cases of harm to US citizens.[126] Naturally it is hard to understand why, if jus cogens is so fundamental and compelling, the availability of a remedy based upon it should depend on whether the plaintiff happens to hold a US citizenship. Even more important, as pointed out above, jurisdiction based on jus cogens alone is a double-edged sword. If courts of one State can exercise jurisdiction over other States pursuant to jus cogens, then any court of any State can do that. Strangely, the stark possibility that, by the same logic, other States might enact similar legislation that would eventually hale the US Government before foreign courts for alleged violations of human rights, is not discussed in the writings of these and many other US scholars. This can only be explained by either that they are entirely unaware of this possibility, or that they remain confident that no court could ever do this to the US. In a rare case, however, while suggesting “a narrowly crafted jus cogens exception to foreign sovereign immunity”, Fitzpatrick warns of “the risk that the United States itself would be unfairly subjected to politically motivated litigation in the courts of other states”,[127] but she does not explain how it is at all possible to reserve to oneself the same immunity denied to others, or why a proceeding in pursuance of jus cogens would be “unfair” and “politically motivated” if instituted in a foreign, say, UK, court against the US, but would be fair and free from political motivation if brought in a US court against a foreign State, say, the UK. In short, what these US scholars envisage is a sort of jus cogens that is to operate only in favour of US citizens and that is to be administered only by US courts. This is not jus cogens: it is jus cogens Americanum.
In sum, the propositions by these scholars are untenable in theory and unworkable in practice. Rather than strengthen the jus cogens human rights norms, these proposals detract from their peremptory character and reduce their credibility. And it is doubtful whether these proposals will have a wide acceptance outside the US. The same is true of the abrogation theory that informs and indeed underlies such proposals.
The abrogation theory advanced in the present literature is, unfortunately, unconvincing. The theory rests on many presuppositions or unproven premises. It has to assume that there exists a hierarchy of norms in international law, that jus cogens human rights norms can be clearly identified, and that jus cogens has effects outside the purview of the law of treaties. These assumptions are either purely speculative and still under debate, as is the case of hierarchy, or yet to be fully worked out, as is the case of identification, or in need of both further elaboration and support by State practice, as is the case of non-treaty effects. The abrogation theory itself is inconsistent and does not really hold. The “hierarchy-trump” hypothesis proves to be self-contradictory and even self-destructive; while the fiction of implied waiver of immunity proves equally incoherent and contrary to case law. A number of proposals based on the jus cogens argument are both untenable in theory and unfeasible in practice.
Upon closer inspection, the abrogation theory actually detracts from the peremptory character of jus cogens norms and diminishes their credibility; for the theory has either to assert a blanket trumping effect, i.e. an excessively wide application, of the notion of jus cogens, thereby seriously reducing the prospects of its wide acceptance, or to rely on additional means (despite and besides the abrogation theory itself) for its operation, thus calling the peremptory character itself into doubt. In short, rather than strengthen them, the abrogation theory paradoxically undermines and weakens jus cogens human rights norms. The abrogation theory defeats the very purpose it seeks to serve: the better protection of human rights. Thus the merit of the abrogation theory lies in its moral force, not in being a legal, or a legally sound, argument. In short, the abrogation theory is a moral argument; as a legal argument it is untenable.
As the Pinochet case demonstrates, while the moral force of the abrogation theory is indisputable, the legal force of an effective international convention, binding on the States concerned, proves decisive. So it would seem that the correct course of action for human rights advocates would be to operate under and build upon existing international treaties, and possibly to press for the conclusion of further ones, rather than rely on an elusive abrogation theory.
[*] Lecturer in Law, University of Aberdeen, United Kingdom.
[1] Al-Adsani v United Kingdom (2002) ECHR, Application No 35763/97; [2001] ECHR 761; (2001) 34 EHRR 11; 123 ILR 24. Art 6(1) provides: “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing…by an independent and impartial tribunal established by law”.
[2] By an extremely narrow margin: nine votes to eight.
[3] Judge Ferrari Bravo’s dissenting opinion seems slightly ambiguous on this point: [2001] ECHR 761; 123 ILR 24, 52.
[4] Dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, [2001] ECHR 761; 123 ILR 24, 49-50, para 1.
[5] Ibid, para 2.
[6] Ibid, para 4. See also para 3, and the dissenting opinion of Judge Loucaides, at 52.
[7] See Rosanne van Alebeek, ‘The Pinochet Case: International Human Rights Law on Trial’ (2000) 71 British Year Book of International Law 29, 49; Jodi Horowitz, ‘Universal Jurisdiction and Sovereign Immunity for Jus Cogens Violations’ (1999-2000) 23 Fordham International Law Journal 489, 507; Jill M Sears, ‘Confronting the “Culture of Impunity”: Immunity of Heads of State from Nuremberg to ex parte Pinochet’ (1999) 42 German Yearbook of International Law 125, 138; Jennifer A Gergen, ‘Human Rights and the Foreign Sovereign Immunities Act’ (1995-1996) 36 Virginia Journal of International Law 765, 791; Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 European Journal of International Law 237, 272; Garland A Kelley, ‘Does Customary International Law Supersede A Federal Statute?’ (1998-1999) 37 Columbia Journal of Transnational Law 507, 517; Magdalini Karagiannakis, ‘State Immunity and Fundamental Human Rights’ (1998) 11 Leiden Journal of International Law 9, 18-19; Jack Alan Levy, ‘As between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus Cogens Violators’ (1997-1998) 86 Georgetown Law Journal 2703, 2704; Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 147, 160 and 188; Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1994-1995) 16 Michigan Journal of International Law 403, 406-407; Anonymous Author, ‘Case Note on Princz v Federal Republic of Germany’ (1994-1995) 108 Harvard Law Review 513, 517; Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1993-1994) 46 Austrian Journal of Public & International Law 195, 206 and 219; c.f. his list in‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 European Journal of International Law 237, 272; and Adam C Belsky et al, ‘Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365, 389. The longest list of violations of jus cogens human rights norms is that proposed by the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, vol 2, (American Law Institute Publishers, 1987) s 702, 161; Comment N, 167.
[8] See Anthony D’Amato, ‘Human Rights as Part of Customary International Law: A Plea for Change of Paradigms’ (1995-1996) 25 Georgia Journal of International and Comparative Law 47, 57; Anthony D’Amato, ‘There Is No Norm of Intervention Or Non-Intervention In International Law’ (2001) 7 International Legal Theory 33, 34-35; Anthony D’Amato, ‘It’s a Bird, It’s a Plane, It’s Jus Cogens!’ (1990) 6 Connecticut Journal of International Law 1, 1-2; J Shand Watson, Theory & Reality in the International Protection of Human Rights, (Transnational Publishers, 1999) 44; and Georg Schwarzenberger, ‘International Jus Cogens?’ (1965) 43 Texas Law Review 455, 476 and 477-478.
8 The UN International Law Commission (ILC), which drafted the Convention, mentioned in its commentary that “the law of the [UN] Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens”: para (1) of the commentary to art 50 of the Draft Articles on the Law of Treaties, (1966) II Yearbook International Law Commission, 247. The ILC eventually “decided against including any examples of rules of jus cogens in the article”: para (3), 248. The ILC’s commentary on the prohibition of the use of force was quoted by the International Court of Justice in the Nicaragua case, but the Court’s purpose in this connection was to demonstrate that the prohibition of the use of force was a rule of customary international law, not that it was a norm of jus cogens: see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits (1986) ICJ Rep 14, 100-101, para 190.
[9] See Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase (1970) ICJ Rep 3 , 32, para 33; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits (1986) ICJ Rep 14, 100-101, para 190; East Timor (Portugal v Australia) (1995) ICJ Rep 90, 102, para 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (1996) ICJ Rep 595, 616, para 31 and Armed Activities on the Territory of the Congo 2002 (Democratic Republic of the Congo v Rwanda), Request for the Indication of Provisional Measures (2002) ICJ Rep, para 71. See also: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep 226, 257, para 79; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) ICJ Rep, paras 88 and 155-157. The term “erga omnes” has also been used by the ICJ in connection with unilateral statements made by a State (see Nuclear Tests Case (Australia v France) (1974) ICJ Rep 253, 269, para 50 and Nuclear Tests Case (New Zealand v France) (1974) ICJ Rep 457, 474, para 52) and to a situation created by certain UN actions (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion (1971) ICJ Rep 16 , 56, para 126).
For scholarly discussion of jus cogens norms giving rise to obligations erga omnes see, Magdalini Karagiannakis, ‘State Immunity and Fundamental Human Rights’ (1998) 11 Leiden Journal of International Law 9, 16 and 20; Jack Alan Levy, ‘As between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus cogens Violators’ (1997-1998) 86 Georgetown Law Journal 2703, 2705; Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 147, 160; Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1993-1994) 46 Austrian Journal of Public & International Law 195, 203 and 223; and the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, vol 2, (American Law Institute Publishers, 1987) s 702, 161; Comment N, 167.
For the relationship between the notions of jus cogens and erga omnes see ILC, Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted in 2001, Report of the International Law Commission on the Work of Its Fifty-third Session, Official Records of the General Assembly, A/56/10, ch IV.E.2, 281, commentary to Chapter III of Part Two, para (7). See also Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, (Clarendon Press, 1997) 43-73; Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic Journal of International Law 211 and André de Hoogh, Obligations Erga Omnes and International Crimes (Kluwer Law International, 1996) 53-56 and Theodor Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1, 11.
[10] See especially Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep, 226, 258, para 83.
[11] Prosecutor v Anto Furundzija (1998) Case No IT-95-17/1, ICTY, Trial Chamber II, Judgment, para 147. See also paras 144 and 151; 121 ILR 213, 257-258 and 260.
[12] Ian Brownlie, Principles of Public International Law (Clarendon Press, 6th ed, 2003) 490.
[1]4 Magdalini Karagiannakis, ‘State Immunity and Fundamental Human Rights’ (1998) 11 Leiden Journal of International Law 9, 19-20. Haffke is likewise of the view that jus cogens, being non-derogable and of the highest status in international law, will arguably supersede a State’s conflicting domestic law that embodies State immunity. Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal, 1467, 1501-1505. See also Kerstin Bartsch and Björn Elberling, ‘Jus cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 484 (override); Rosanne van Alebeek, ‘The Pinochet Case: International Human Rights Law on Trial’ (2000) 71 British Year Book of International Law 29, 49 (override); Jodi Horowitz, ‘Universal Jurisdiction and Sovereign Immunity for Jus cogens Violations’ (1999-2000) 23 Fordham International Law Journal 489, 490 and 524 (override/trump); 522-523 (implied waiver); Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 European Journal of International Law 237, 262 and 265 (invalidate/trump); Jean-Yves de Cara, ‘L’Affaire Pinochet devant la Chamre des Lords’ (1999) 45 Annuaire Français de Droit International 72, 88 (override); Jonathan I Charney, ‘Progress in International Criminal Law?’ (1999) 93 American Journal of International Law 452, 457 (override); Garland A Kelley, ‘Does Customary International Law Supersede A Federal Statute?’ (1998-1999) 37 Columbia Journal of Transnational Law 507, 507 and 517-518 (jus cogens may override immunity but not a statute); Hari M Osofsky, ‘Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches’ (1998) 11 New York International Law Review 35, 44 (implied waiver); Jack Alan Levy, ‘As between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus cogens Violators’ (1997-1998) 86 Georgetown Law Journal 2703, 2710 (implied waiver); Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 208 (override); Michael Byers, ‘Case Note on Al-Adsani v Government of Kuwait’ (1996) 67 British Year Book of International Law 537, 539-540 and 542 (override); Niranjini Vivekananthan, ‘The Doctrine of State Immunity and Human Rights Violations of Foreign States’ (1996) 8 Sri Lanka Journal of International Law 125, 147 (implied waiver); Jennifer A Gergen, ‘Human Rights and the Foreign Sovereign Immunities Act’ (1995-1996) 36 Virginia Journal of International Law 765, 791 (override); David J Bederman, ‘Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in US Human Rights Litigation’ (1995-1996) 25 Georgia Journal of International and Comparative Law 255, 272-278 (implied waiver, though with some scepticism); Thora A Johnson, ‘A Violation of Jus Cogens Norms as an Implicit Waiver of Immunity under the Federal Sovereign Immunities Act’ (1995) 19 Maryland Journal of International Law and Trade, 259, 284-287 (implied waiver); Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1994-1995) 16 Michigan Journal of International Law 403, 407-408 (jus cogens may override immunity but not a statute); Anonymous Author, Case note on Princz v Federal Republic of Germany (1994-1995) 108 Harvard Law Review 513, 516-517 (implied waiver); Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal, 1467, 1497-1499 (implied waiver); and Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1993-1994) 46 Austrian Journal of Public & International Law 195, 222-223 (override). For an extreme form of the waiver theory see Adam C Belsky et al, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365, 394-401. For the suggestion of override see also two dissenting opinions in the Arrest Warrant case: Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium) (2002) ICJ Rep 3, Judge Al-Khasawneh, 95, para 7; Judge van den Wyngaert, 156-157, para 28. Here it is worth noting that, according to Koji, not all ‘non-derogable rights’ are necessarily ‘jus cogens’. Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12 European Journal of International Law 917, 920 and 928. See also Theodore Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1, 15-16.
13 See, e.g., Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741; Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12 European Journal of International Law 917; Joseph HH Weiler and Andreas L Paulus, ‘The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?’ (1997) 8 European Journal of International Law 545; Martti Koskenniemi, ‘Hierarchy in International Law: A Sketch’ (1997) 8 European Journal of International Law 566; Juan Antonio Carrillo Salcedo, ‘Reflections on the Existence of a Hierarchy of Norms in International Law’ (1997) 8 European Journal of International Law 583; Theodor Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1; Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 American Journal of International Law 413; and the authors cited above, n 14.
[14] See arts 53 and 64.
[15] See: American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, vol 2, (American Law Institute Publishers, 1987) s 702, 161, Comment N, 167; Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens – Some Critical Remarks’ (1995) 16 Michigan Journal of International Law 433, 437-438; Anthony D’Amato, ‘It’s a Bird, It’s a Plane, It’s Jus Cogens!’ (1990) 6 Connecticut Journal of International Law 1, 4. It must be noted that the Third Restatement appears to be inconsistent on this point, see Restatement (Third), vol 1, s 102, Comment K, 28.
[16] Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status (Finnish Lawyers’ Publishing Company, 1988) 293-314.
[17] Erik Suy, ‘The Concept of Jus cogens in Public International Law’, Lagonissi (Greece), April 3-8, 1966, Papers and Proceedings II: The Concept of Jus Cogens in International Law 1967 Geneva: Carnegie Endowment for International Peace (European Centre) 17 at 75. See also Christos L Rozakis, The Concept of Jus Cogens in the Law of Treaties (North-Holland Publishing Company, 1976) 16-27.
[18] James Crawford, The Creation of States in International Law (Clarendon Press, 1979) 82. He does admit, however, that the notion of jus cogens “is actually difficult to apply to problems of territorial status”: 82.
[19] Prosecutor v Anto Furundzija (1998) Case No IT-95-17/1, ICTY, Trial Chamber II, Judgment, para 153; 121 ILR 213, 260-261. See also ILC, Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted in 2001,
Report of the International Law Commission on the work of its Fifty-third session, UN GAOR, A/56/10, ch IV.E.[2], 206, 207-8, 333 and 336 and James Crawford, The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries (Cambridge University Press, 2002) 54-56.
20 Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted in 2001, Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, A/56/10, ch IV.E.1, 53. Under art 41(2): “No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation”.
[21] See also Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission, 2001, Report of the International Law Commission on the work of its Fifty-third session, UN GAOR, A/56/10, ch IV.E.2, 209, commentary to art 26.
[22] Here I have drawn heavily on the Torture Convention, the norm(s) it embodies and the practice it has generated. However, it must be noted that jus cogens is a much wider concept and that further analysis is absolutely necessary. On the other hand, unlike the prohibition on torture, other purported jus cogens norms may lack both the specificity and the much-needed procedural rules to be of much probative value in this respect. While such deficiency further highlights the flaw in the abrogation theory, it nonetheless amounts to a deplorable situation for the protection of human rights. This again calls for urgent analysis. However, to do all these would be going far beyond the scope of this article, so I shall content myself with a very brief observation here. As international law stands now, it is highly questionable whether universal civil jurisdiction can be asserted over violations of human rights, jus cogens or otherwise, committed outside the forum State. C.f. Jones v Saudi Arabia, [2004] EWCA Civ 1394; [2005] QB 699. See Xiaodong Yang, ‘Universal Tort Jurisdiction over Torture?’ (2005) 64 Cambridge Law Journal 1. On the other hand, in the light of the Pinochet case, instituting criminal proceedings against individual (as opposed to States) violators would appear to be a viable course of action in overcoming State immunity, as I have shown elsewhere. See Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’ (2003) 74 British Year Book of International Law, 333, 355-365.
[23] There are numerous international and national instruments enshrining the right not to be subjected to torture and prohibiting torture, and case law and literature on the jus cogens status of the prohibition of torture are voluminous. See, e.g., art 5 of the 1948 Universal Declaration of Human Rights; art 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms; art 7 of the 1966 International Covenant on Civil and Political Rights; art 5(2) of the 1969 American Convention on Human Rights; art 5 of the 1981 African [Banjul] Charter on Human and Peoples’ Rights; the 1985 Inter-American Convention to Prevent and Punish Torture; Human Rights Committee, General Comment No 24, para 10 and General Comment No 20, para 3; Prosecutor v Anto Furundzija (1998) Case No IT-95-17/1, ICTY, Trial Chamber II, Judgment, para 144; 121 ILR 213, 257-258; Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3)(Pinochet No 3) [1999] UKHL 17; [2000] 1 AC 147 (HL); 119 ILR 135; Al-Adsani v United Kingdom (2002) ECHR, Application No 35763/97; [2001] ECHR 761; (2001) 34 EHRR 11; 123 ILR 24 at 41-42, para 61. For more recent study see Erika De Wet, ‘The Prohibition of Torture as an International Norm of Jus cogens and Its Implications for National and Customary Law’ (2004) 15 European Journal of International Law 97.
[24] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[25] See, e.g., Prosecutor v Anto Furundzija (1998) Case No IT-95-17/1, ICTY, Trial Chamber II, Judgment, para 155; 121 ILR 213, 261.
[26] Logically the question might even be asked whether the entire Torture Convention has become jus cogens. The answer seems to lie in the negative. For one thing, arts 28 and 30 expressly permit reservations thereto, that is, they permit the States parties to the Torture Convention “to exclude or to modify the legal effect of [these] provisions…in their application to” them by means of “a unilateral statement”: see the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), art 2(1)(d)). In other words, these articles permit derogation therefrom.
[27] East Timor (Portugal v Australia) (1995) ICJ Rep 90,102, para 29.
30 Armed Activities on the Territory of the Congo [2]002) (Democratic Republic of the Congo v Rwanda), Request for the Indication of Provisional Measures (2002) ICJ Rep, para 71.
31 Hazel Fox, The Law of State Immunity (Oxford University Press, 2002) 525. Note that in this statement Fox implicitly treats jus cogens as only substantive law. See also Emmanuel Voyiakis, ‘Access to Court v State Immunity’ (2003) 52 International and Comparative Law Quarterly 297, 321.
28 As Lord Millett might have thought. See Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3)(Pinochet No 3) [1999] UKHL 17; [2000] 1 AC 147 (HL), 277-278.
[29] Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium) (2002) ICJ Rep 3, 24-25, para 59.
[30] See Erika De Wet, ‘The Prohibition of Torture as an International Norm of Jus cogens and Its Implications for National and Customary Law’ (2004) 15 European Journal of International Law 97, 107-110.
[31] Human Rights Committee, ‘International Law Association (British Branch), Report on Civil Actions in the English Courts for Serious Human Rights Violations Abroad’ (2001) European Human Rights Law Review 129, 150.
[32] Even those advocating the ‘override’ theory concede that there is currently no separate procedural rule of a jus cogens character. Kerstin Bartsch and Björn Elberling, ‘Jus cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 485-486.
[33] Otherwise the Vienna Convention on the Law of Treaties, above n 28, art 53 would have used the term “the peremptory norm of general international law” instead of “a…norm”. Besides, all writers speak of jus cogens norms instead of the jus cogens norm. See in particular those scholars quoted above, who seek to provide lists of jus cogens norms.
[34] Brownlie asks, but does not answer, this question: “If a state uses force to implement the principle of self-determination, is it possible to assume that one aspect of jus cogens is more significant than another?”: Ian Brownlie, Principles of International Law, (Clarendon Press, 6th ed, 2003) 490. In the context of a State’s using force to protect nationals abroad, Ronzitti finds it “difficult to agree that the value protected by the duty to safeguard human rights should prevail over the value protected by the rule which forbids the use of force.” Natalino Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity, (Martinus Nijhoff Publishers, 1985) 15. In opposing a jus cogens exception to immunity, Zimmermann is inclined to consider jus cogens norms (for example, the prohibition of torture) and State immunity as “involving two different sets of rules which do not interact with each other”. Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens – Some Critical Remarks’ (1995) 16 Michigan Journal of International Law 433, 438.
[35] See Rosanne van Alebeek, ‘The Pinochet Case: International Human Rights Law on Trial’ (2000) 71 British Year Book of Internaional Law 29, 49; Magdalini Karagiannakis, ‘State Immunity and Fundamental Human Rights’ (1998) 11 Leiden Journal of International Law 9, 19-20; Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1994-1995) 16 Michigan Journal of International Law 403, 407; Anonymous Author, ‘Case note on Princz v Federal Republic of Germany’ (1994-1995) 108 Harvard Law Review 513, 516-517; Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal, 1467, 1501-1505; Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 European Journal of International Law 237, 223; and David F Klein, ‘A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts’ (1988) 13 Yale Journal of International Law 332, 359. Even the concurring judges in Al-Adsani may have had a similar notion. See concurring opinion of Judge Pellonpää joined by Judge Bratza, Al-Adsani v United Kingdom (2002) ECHR, Application No 35763/97; [2001] ECHR 761; (2001) 34 EHRR 11; 123 ILR 24 and 48.
[36] Lord Hope in Pinochet No 3 referred to the “jus cogens character of the immunity enjoyed by serving heads of state ratione personae”: [1999] UKHL 17; [2000] 1 AC 147, 244. Black-Branch asserts that “It would seem that the principle of immunity is jus cogens law on its own”. Jonathan Black-Branch, Sovereign Immunity under International Law: The Case of Pinochet, in Diana Woodhouse, ed, The Pinochet Case: A Legal and Constitutional Analysis, (Hart Publishing, 2000) 93, 101. Commenting on Lord Hope’s observation, Bröhmer takes the view that immunities do not belong to the jus cogens body of law because jus cogens rights cannot be waived but all immunities (including the immunity of a serving head of State) are subject to waiver. Jürgen Bröhmer, ‘Immunity of a Former Head of State General Pinochet and the House of Lords: Part Three’ (2000) 13 Leiden Journal of International Law 229, 234. But in maintaining this one must deliberately disregard the possibility that a jus cogens norm might contain a waiver clause. Without prejudging the nature of State immunity it should be noted that there was a time when, generally speaking, State immunity before foreign courts was believed to be absolute, subject only to a waiver by the State sued.
[37] As argued in Siderman de Blake v Republic of Argentina, [1992] USCA9 1398; 965 F 2d 699, 718 (9th Cir, 1992); 103 ILR 454, 474.
[38] As argued in Al-Adsani v Government of Kuwait, 107 ILR 536, 541.
[39] Dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, paras 3 and 4. Al-Adsani v United Kingdom (2002) ECHR, Application No 35763/97; [2001] ECHR 761; (2001) 34 EHRR 11; 123 ILR 24, 50-51.
[40] Ibid, para 1.
[41] Ibid.
[42] Vienna Convention on the Law of Treaties, above n 28, arts 53 and 44.
[43] Ibid, art 64.
[44] Ibid, art 71.
[45] As noted in American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, vol 2, (American Law Institute Publishers, 1987) s 102, Comment K. The dissenting judges in Al-Adsani did mention the word ‘conflict’ in their opinion but they did not say anything as to how that conflict might occur. On the contrary, they immediately proceeded to pronounce that State immunity was overridden by the norm prohibiting torture. Their opinion, taken as a whole, clearly indicates that they understood the word ‘conflict’ in the sense that State immunity conflicts with the jus cogens norm against torture simply by being non-jus cogens. Dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, paras 3 and 4; [2001] ECHR 761; 123 ILR 24, 50-51. Judge Loucaides put forward an ‘accountability’ argument to the same effect. Dissenting opinion of Judge Loucaides; [2001] ECHR 761; 123 ILR 24, 52-53. In other words, their underlying thesis is a presumption of conflict between jus cogens and non-jus cogens norms.
[46] It should be noted that, under the Torture Convention, the word ‘territory’, except in arts 6(1) and 20 (1) and (3), is always followed by the phrase ‘under its jurisdiction’. Thus it would seem that the ‘territory’ in the Torture Convention is broadly defined to refer to, for example, a piece of territory that may be under the jurisdiction of one State but which may technically belong to another State. See arts 2(1), 5 (1)(a) and (2), 7(1), 11, 12, 13 and 16(1)
of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 198[4], 1465 UNTS 85 (entered into force 26 June 1987).
51 See Human Rights Committee, ‘Report on Civil Actions’ (2001) European Human Rights Law Review 129, 151, where the Committee finds ‘little evidence’ that jus cogens human rights norms “also require States to submit to the jurisdiction of other national courts”.
47 Contrary to an assertion made in Kerstin Bartsch and Björn Elberling, ‘Jus cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 486-488.
[48] See Siderman de Blake v Republic of Argentina, [1992] USCA9 1398; 965 F 2d 699, 718 US Court of Appeals 1992; 103 ILR 454, 474.
[49] Adam C Belsky et al, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365, 399. For a similar view see Curtis A Bradley and Jack L Goldsmith, ‘Pinochet and International Human Rights Litigation’ (1998-1999) 97 Michigan Law Review 2129, 2141-2142.
[50] Art 53 provides that a jus cogens norm has to be ‘accepted and recognized by the international community of States as a whole’. It would be hard to construe the words ‘accepted and recognized’ as not signifying consent.
[5]6 See Danilenko’ conclusion on the basis of a careful survey of relevant theory and practice: Gennady M Danilenko, ‘International Jus Cogens: Issues of Law-Making’ (1991) 2 European Journal of International Law 42, 52.
51 See Hari M Osofsky, ‘Foreign Sovereign Immunity from Severe Human Rights Violations: New Directions for Common Law Based Approaches’ (1998) 11 New York International Law Review 35, 44; David J Bederman, ‘Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in US Human Rights Litigation’ (1995-1996) 25 Georgia Journal of International and Comparative Law 255, 272-278 (though with some scepticism); Thora A Johnson, ‘A Violation of Jus cogens Norms as an Implicit Waiver of Immunity under the Federal Sovereign Immunities Act’ (1995) 19 Maryland Journal of International Law and Trade, 259, 284-287; Anonymous Author, ‘Case note on Princz v Federal Republic of Germany’ (1994-1995) 108 Harvard Law Review 513, 516-517; Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal, 1467, 1497-1499. The most radical form of the waiver theory is perhaps that put forward by Belsky and his colleagues. In their view, the observance of jus cogens is so universally recognized as vital to the community of nations that every State impliedly waives its immunity for jus cogens violations by merely being a state. Adam C Belsky et al, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365, 399.
[52] As Bröhmer points out, to construe consent to jurisdiction where there is none does not make much sense. Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 147, 191. See also Curtis A Bradley and Jack L Goldsmith, ‘Pinochet and International Human Rights Litigation’ (1998-1999) 97 Michigan Law Review 2129, 2152-2153 and Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1994-1995) 16 Michigan Journal of International Law 403, 409.
[53] See, Maxwell O Chibundu, Making Customary International Law through Municipal Adjudication: A Structural Inquiry’ 39 Virginia Journal of International Law (1998-1999) 1069, 1130-1131; Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 147, 150 and 1093-1148 and Karen Parker and Lyn Beth Neylon, Jus cogens: Compelling the Law of Human Rights, 12 Hastings International and Comparative Law Review (1988-1989), 411.
[54] (1976)15 ILM 1388.
[55] Argentine Republic v Amerada Hess Shipping Corporation [1989] USSC 11; (1989) 488 US 428 (SC), 436; 81 ILR 658, 664.
[56] Argentine Republic v Amerada Hess Shipping Corporation [1989] USSC 11; (1989) 488 US 428 (SC), 436; 81 ILR 668-669. For a similar holding that the FSIA provides the sole basis for obtaining jurisdiction over a foreign State in the US see Republic of Argentina v Weltover, Inc [1992] USSC 79; (1992) 504 US 607 (SC), 611; 100 ILR 509 and Saudi Arabia v Nelson [1993] USSC 33; (1993) 507 US 349 (SC), 355; [1993] USSC 33; 100 ILR 544 and Verlinden BV v Central Bank of Nigeria [1983] USSC 95; (1983) 461 US 480 (SC), 493. A related argument, which holds that participation in international human rights treaties amounts to an implied waiver, was also expressly rejected in Argentine Republic v Amerada Hess Shipping Corporation [1989] USSC 11; (1989) 488 US 428 (SC), 436; 81 ILR 658, 668-669. See, Niranjini Vivekananthan, ‘The Doctrine of State Immunity and Human Rights Violations of Foreign States’ (1996) 8 Sri Lanka Journal of International Law 125, 141-142; Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’ (1993-1994) 46 Austrian Journal of Public & International Law 195, 214-215; and Christopher W Haffke, ‘The Torture Victim Protection Act: More Symbol Than Substance’ (1994) 43 Emory Law Journal, 1467, 1511-1512. For an opposite argument see Magdalini Karagiannakis, ‘State Immunity and Fundamental Human Rights’ (1998) 11 Leiden Journal of International Law 9, 21.
[57] Section 1605(a)(1) provides that “A foreign state shall not be immune…in any case in which the foreign state has waived its immunity either explicitly or by implication…”. For authoritative commentary see its legislative history in US Congress, House of Representatives Report No 94-1487, (1976) 15 ILM 1398, 1407. Neither the FSIA nor the House Report mentions jus cogens.
[58] Siderman de Blake v Republic of Argentina [1992] USCA9 1398; (1992) 965 F 2d 699 (9th Cir), 718; 103 ILR 454, 474-475.
[59] Saudi Arabia v Nelson [1993] USSC 33; (1993) 507 US 349; 100 ILR 544.
[61] Al-Adsani v Government of Kuwait (1995) 103 ILR 420, 429-432. Section 5 provides: “A State is not immune as respects proceedings in respect of – (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom” [emphasis added].
[62] Al-Adsani v Government of Kuwait (1996) 107 ILR 536, 541.
[63] Ibid, 542.
[64] Ibid, 549-550. Emphasis in the original.
[65] Al Al-Adsani v United Kingdom (2002) ECHR, Application No 35763/97; [2001] ECHR 761; (2001) 34 EHRR 11; 123 ILR 24, para 61. This statement is, however, problematic. See Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’ (2003) 74 British Year Book of International Law, 333, 354. The Al-Adsani holding on jus cogens was affirmed by ECHR in its decision in Kalogeropoulou v Greece and Germany, Application No 00059021/00, 2002, Part 1.D.1.(a).
[66] Princz v Federal Republic of Germany (1992) 813 F Sup 22, 26; 103 ILR 594, 601.
[67] Princz v Federal Republic of Germany [1994] USCADC 292; (1994) 26 F 3d 1166, 1174; 103 ILR 594, 610. But see Circuit Judge Wald’s celebrated dissenting opinion at 1176-1185; 103 ILR 594, 612-621. Zimmermann notes the difficulty that, at the time of Princz’ atrocious treatment the notion of jus cogens did not come into existence yet. Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens – Some Critical Remarks’ (1995) 16 Michigan Journal of International Law 433 at 437. Cerna takes the view (without further explanation) that Germany’s programme of reparations for Holocaust survivors can be regarded as indicating “an implicit waiver of sovereign immunity.” Christina M Cerna, ‘Hugo Princz v Federal Republic of Germany: How Far Does the Long-Arm Jurisdiction of US Law Reach?’ 8 Leiden Journal of International Law (1995) 377, 390. However, the fact that the programme in question required that the survivors apply to the German Government for reparations seems to suggest the contrary, namely a desire on Germany’s part to avoid, rather than to submit to, court proceedings brought by survivors in foreign national courts.
74 Smith v Socialist People’s Libyan Arab Jamahiriya (199[6]) [1997] USCA2 106; 101 F 3d 239 (2d Cir), 244; 113 ILR 534, 539.
75 [1997] USCA2 106; (1996) 101 F 3d 239 (2nd Cir), 245; 113 ILR 534, 540. C.f. Princz and Siderman above. See also Cabiri v Government of Republic of Ghana (1997) 981 F Sup 129, 133-134 affirmed [1999] USCA2 39; (1999) 165 F 3d 193, 201-202 and Hirsh v State of Israel and State of Germany (1997) 962 F Sup 377, 381-382; 113 ILR 543, 547-548.
68 Sampson v Federal Republic of Germany [2001] USCA7 271; (2001) 250 F 3d 1145 (7th Cir), 1152-56.
[69] Ibid, 1155.
[70] Ibid, 1156.
[71] See, e.g., Ye v Zemin [2004] USCA7 448; (2004) 383 F 3d 620 (7th Cir), 627 (relying on the Executive Branch’s suggestion of immunity for a foreign head of State); affirming Plaintiffs A, B, C, D, E, F v Jiang Zemin (2003)282 F Sup 2d 875, 883; Doe v Qi (2004)349 F Sup 2d 1258, 1284; Hwang Geum Joo v Japan (2001)172 F Sup 2d 52, 60-1; affirmed by Court of Appeals[2003] USCADC 151; , (2003) 332 F 3d 679, 686-7; Theo Garb v Republic of Poland (2002) 207 F Sup 2d 16, 38-39 and Nexhat Boshnjaku v Federal Republic of Yugoslavia (2002) US Dist Lexis 13763, 10-11 (ND Ill).
80 Bouzari v Islamic Republic of Iran, Canada, Ontario Superior Court of Justice, (2002) 124 ILR 42[7].
72 124 ILR 427, 443.
82 124 ILR 42[7], 443. The decision was later upheld by the Ontario Court of Appeal, (2004) 243 DLR (4th) 406, 422-429.
73 Ilias Bantekas, ‘Prefecture of Voiotia v Federal Republic of Germany, Case No 137/1997, Court of First Instance of Leivadia, Greece, 1997’ (1998) 92 American Journal of International Law 765.
[74] (1998) 92 American Journal of International Law 765, 765-766.
[75] Ibid, 766.
[76] Ibid, 766, Ground A.
[77] Ibid, 766, Ground B.
88 Ibid, [7]67, Ground F.
78 Maria Gavouneli and Ilias Bantekas, ‘Prefecture of Voiotia v Federal Republic of Germany (2001) 95 American Journal of International Law 198.
[79] (2001) 95 American Journal of International Law 198, 200. The Court made express references to art 11 of the European Convention on State Immunity, s 1605(a)(5) of the US FSIA, s 5 of the UK SIA and similar provisions in State immunity statutes of Canada, Australia, South Africa and Singapore, as well as art 12 of the 1991 ILC Draft Articles on State immunity and art 2(2)(e) of the draft articles by the Institut de Droit International in 1991. Ibid, 198-199. All these provisions stipulate the territorial connection as the essential basis for denying immunity to foreign States. For detailed discussion on this point see Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’ (2003) 74 British Year Book of International Law, 333, 374-81. According to Gattini, by relying on art 11 of the European Convention, the Greek Supreme Court “did not even need to dwell on the issue of whether the massacre in Distomo had been a jus cogens violation”. Andrea Gattini, ‘To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals’ Claims for War Damages?’ (2003) 1 Journal of International Criminal Justice 348, 360.
[80] (2001) 95 American Journal of International Law 198, 200. The ‘tacit waiver’ seems hard to understand, especially considering that Germany actively contended that it enjoyed immunity. And this did not escape the criticism of the dissenting judges in Areios Pagos. Ibid, 201. For a further stage of the case see Kalogeropoulou v Greece and Germany, Application No 00059021/00, ECHR, 2002. While the ECHR proceedings were still pending, the Greek Special Highest Court issued a ruling on 17 September 2002 that Germany enjoyed immunity without any restrictions or exceptions and therefore could not be sued before any Greek Civil Court for torts committed by its armed forces. See Federal Republic of Germany v Miltiadis Margellos, Case 6/17-9-2002, Special Highest Court of Greece, Decision of 17 September 2002, noted in Kerstin Bartsch and Björn Elberling, ‘Jus cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 481-482.
[81] Erika De Wet, ‘The Prohibition of Torture as an International Norm of Jus cogens and Its Implications for National and Customary Law’ (2004) 15 European Journal of International Law 97, 106-107; Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 768-770 and 779-780; Kerstin Bartsch and Björn Elberling, ‘Jus cogens vs State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German Law Journal 477, 483.
[82] Jodi Horowitz, ‘Universal Jurisdiction and Sovereign Immunity for Jus cogens Violations’ (1999-2000) 23 Fordham International Law Journal 489, 510-511 and 522.
[83] Maria Gavouneli and Ilias Bantekas, ‘Prefecture of Voiotia v Federal Republic of Germany, Case No 11/2000, Areios Pagos (Hellenic Supreme Court), 2000’ 95 American Journal of International Law (2001) 198.
[84] James Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’ (1983) 54 British Year Book of International Law 75, 111.
[85] See the provisions referred to in above, n 90.
[86] See, Letelier v Republic of Chile (1980) 488 FSup 665, 671; 63 ILR 378, 386 and Liu v Republic of China (1989)892 F 2d 1419 (9th Cir); 101 ILR 519. With the exception, perhaps, of the case of foreign armed forces within the territory of the forum State; but further discussion of this point would take us outside the scope of this article. See Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions (2003) 74 British Year Book of International Law 333, 372-374. For discussion on a departure from the territorial nexus requirement under the US Antiterrorism and Effective Death Penalty Act of 1996 see Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’ (2003) 74 British Year Book of International Law 333, 381-385.
[87] See McElhinney v Williams and Her Majesty’s Secretary of State for Northern Ireland [1994] 2 ILRM 115 (HC); 103 ILR 311; [1996] 1 ILRM 276 (SC); 104 ILR 691; McElhinney v Ireland [2001] ECHR 763; (2002) 34 EHRR 13.
[88] Collision with Foreign Government-Owned Motor Car (Austria) Case, Austria, Supreme Court (1961)40 ILR 73.
[89] Maria Gavouneli and Ilias Bantekas, ‘Prefecture of Voiotia v Federal Republic of Germany (2001) 95 American Journal of International Law 198, 766, Grounds B and C. It might be difficult to grasp, for instance, in what sense murder can be ‘null and void’.
[90] Ibid, 767, Ground F.
[91] Caplan thinks that Ground F “is somewhat incongruous, seemingly advocating an entirely separate ground for denying immunity…”: Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 769. This is an obvious example of failing to appreciate the importance of territorial sovereignty.
[92] In a deliberate attempt to terrorize the Chinese into capitulation, Japanese occupying troops massacred 300,000 Chinese and destroyed much of the City of Nanking (now known as Nanjing) and its environs in six to eight weeks’ time from mid-December 1937 to February 1938. For the Nanking massacre see Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (Penguin Books, 1998) and Bernard Röling and CF Rüter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East, Vol I, (Amsterdam University Press, 1977) 389-91. The Tokyo Judgment is also available online: <http://www.ibiblio.org/hyperwar/PTO/IMTFE/> , see Chapter VIII, “Conventional War Crimes (Atrocities)” (last accessed on 10 March 2006).
[93] Andrea Bianchi, ‘Ferrini v Federal Republic of Germany, Italian Court of Cassation, March 11, 2004’ (2005) 99 American Journal of International Law 242.
[94] Ibid, 243.
[95] Ibid, 243-244.
[96] See Pasquale De Sena and Francesca De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’ 16 European Journal of International Law (2005) 89, 99-103.
[97] Above, n 104, 244.
[98] Contrary to the belief of De Sena and De Vittor that the territorial nexus was only of secondary importance. See Pasquale De Sena and Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, (2005) 16 European Journal of International Law 89, 95-97.
[99] Ibid, 100-103. See also Carlo Focarelli, Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision, (2005) 54 International and Comparative Law Quarterly 951, 957. To a lesser extent see above, n 104, 247.
[100] For a similar view see Andrea Gattini, ‘War Crimes and State Immunity in the Ferrini Decision’ (2005) 3 Journal of International Criminal Justice 224, 233-241.
[101] Lord Browne-Wilkinson, Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [2000] 1 AC 147 (HL), 198.
[102] Ibid, 203.
[103] Ibid, 204.
[104] Ibid, 204-205.
[105] Lord Hope, ibid, 242.
[1]17 See the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951), art 6.
118 Lord Hope, above n 112, 242.
106 Ibid, 247.
[107] Lord Hutton, above n 112, 261.
[108] Ibid, 263.
[109] Lord Millett, above n 112, 275.
[110] Ibid, 276.
[111] See: Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium) (2002) ICJ Rep 3, 24-25, para 59; and Xiaodong Yang, ‘Immunity for International Crimes: A Reaffirmation of Traditional Doctrine’ (2002) 61 Cambridge Law Journal 242, 245-246.
[112] Lord Millett, above n 112, 276.
[113] Ibid, 277-278.
[114] Lord Phillips, above n 112, 290.
[1]28 Ibid.
115 Bröhmer, a German scholar, also proposes an exercise of jurisdiction on the basis of jus cogens, but his suggestion takes the form of a “proposal for a draft article on an exception to immunity from adjudication in cases involving violations of jus cogens human rights”. See Jürgen Bröhmer, State Immunity and the Violation of Human Rights (Martinus Nijhoff Publishers, 1997) 214-215. Thus, unlike US scholars, he envisages a jurisdiction that rests on a treaty obligation, rather than on the special character of jus cogens.
[116] Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 771.
[117] Ibid, 773.
[118] Ibid, 775.
[119] Ibid, 776.
[120] See, Al-Adsani v United Kingdom [2001] ECHR 761; (2002) 34 EHRR 11, para 54; Fogarty v United Kingdom [2001] ECHR 762; (2002) 34 EHRR 12, para 34; McElhinney v Ireland [2001] ECHR 763; (2002) 34 EHRR 13, para 35; Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium) (2002) ICJ Rep 3 at 20-22, paras 51-53; 24-25, paras 58-59; 25, para 61; 29-30, paras 70-72; 31, para 75 (on immunity enjoyed by Head of State, Head of Government and Minister for Foreign Affairs in international law); Council of Europe, Explanatory Report on the European Convention on State Immunity, Strasbourg, 1972, 5, para 1; European Convention on State Immunity of 1972, Preamble, (1972) 11 ILM 470; (1991) II(2) Yearbook of the International Law Commission, 23; International Law Association, Final Report of the Committee on State Immunity, (1985) Report of the Sixtieth Conference Held at Montreal, 325; Australian Law Reform Commission, Report No 24, Foreign State Immunity, (Australian Government Publishing Service, 1984) 24-25, para 40; Hazel Fox, The Law of State Immunity (Oxford University Press, 2002) 17; Ian Brownlie, Principles of International Law, (Clarendon Press, 6th ed, 2003) 322-323; Malcolm N Shaw, International Law (Cambridge University Press, 5th ed, 2003) 621-624; and Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 1994) 78-79.
[121] Section 1602 of the US FSIA states: “Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned…” 15 ILM 1388, 1389 (1976). See also US House of Representatives, Report No 94-1487 (1976), 15 ILM 1398, 1402 (1976).
[122] For in the same article he declares that “…an international rule of immunity exists…” and proceeds to discuss the “scope of the international rule of state immunity”, the “raison d’être for state immunity under customary international law”, to identify the conduct for which a foreign State may not be immune “by virtue of international custom”, and to explore the “parameters” within which “the forum state can more accurately define its domestic state immunity laws in accordance with customary international law requirements”. He even concludes that “the existence of a rule of customary international law concerning state immunity is firmly established”. Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 776-778 and 780. Emphases added.
[123] See art 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951); art 1(1) of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, 1015 UNTS 243 (entered into force 18 July 1976) and art 4(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[124] See art 4(a) of the 1966 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
[1]39 Lee M Caplan, ‘State Immunity, Human Rights and Jus cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 778-779 and 781.
125 Ibid, 774.
[126] Jack Alan Levy, ‘As between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus cogens Violators’ (1997-98) 86 Georgetown Law Journal 2703, 2730, n 185; Jennifer A Gergen, ‘Human Rights and the Foreign Sovereign Immunities Act’ (1995-96) 36 Virginia Journal of International Law 765, 791-794; Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’ (1994-95) 16 Michigan Journal of International Law 403, 407-408 and 418-426.
[127] Joan Fitzpatrick, ‘Reducing the FSIA Barrier to Human Rights Litigation – Is Amendment Necessary and Possible?’ 86 Proceedings of the American Society of International Law (1992) 338, 342 and 346.
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