History
State Immunity vs. Jus Cogens in Human Rights Litigation
Quick fact
In the landmark case Jurisdictional Immunities of the State (Germany v. Italy, 2012), the International Court of Justice ruled that Italy had violated Germany's sovereign immunity by allowing civil suits for WWII crimes, even though the acts constituted jus cogens violations like forced labor and war crimes.
Why this is interesting
What happens when a country you've suffered torture under claims immunity from your lawsuit? Why can a state accused of genocide avoid being sued in foreign courts, even when the law prohibits genocide absolutely?
Read the full explanation
Understanding State Immunity vs. Jus Cogens in Human Rights Litigation
Think of state immunity as a 'shield' that protects a foreign state from being dragged into another country's courts. It's a long-standing rule of international law based on the idea that all states are equal, and one state cannot sit in judgment over another. However, some rules of international law are so fundamental—like the prohibition of torture, genocide, and slavery—that they are called jus cogens (peremptory norms). These norms are considered to be 'higher law' that no state can override. The tension arises when a victim of a jus cogens violation tries to sue the offending state in a foreign court. The court must decide: does the human right outweigh the state's immunity? In practice, most courts have held that state immunity is a procedural rule that must be applied first, before considering the substantive claim. This means that even if the act is a grave violation, the court cannot hear the case if the state invokes immunity.
A deeper explanation
The tension between state immunity and jus cogens is rooted in the distinction between substance and procedure. Jus cogens norms are substantive rules of international law that prohibit certain conduct absolutely. State immunity, on the other hand, is a procedural rule that governs the jurisdiction of courts. It does not determine whether a state's conduct is lawful; it simply determines whether a court can hear a claim against a state. This procedural character means that immunity is applied before considering the merits of the case. The International Court of Justice, in the Germany v. Italy case, emphasized that the law of state immunity has a 'procedural character' and that 'the applicability of a rule of jus cogens does not automatically displace a procedural rule such as that of state immunity.' The Court also rejected arguments that a territorial tort exception applies to serious human rights violations, and that the peremptory nature of the underlying prohibition creates an implicit waiver or overrides immunity. Consequently, in most jurisdictions, state immunity acts as a complete bar to civil suits for human rights abuses committed by foreign states, unless the state has waived immunity or the act falls under a narrow exception like commercial activities. This means that while jus cogens norms are supremely important, their enforcement is limited by procedural rules, leaving victims without a forum for civil redress in foreign courts.