Jurisdictional Immunities of the State - The Balance Between State Immunity and Jus Cogens

Abstract: The jurisdictional immunity of states in cases concerning serious human rights violations has been extensively discussed in the international legal debate, and has given rise to conflicting judicial decisions by courts of various jurisdictions. While serious human rights violations constitute breaches of peremptory norms, jus cogens, from which no derogation is permitted, the law of state immunity is said to constitute a procedural bar to the exercise of jurisdiction by national courts. The conflict between state immunity and jus cogens was brought to a head in the 2012 judgement of the International Court of Justice “Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)”. From the outset of this judgement, the purpose of this paper is to examine the balance in international law between state immunity and serious human right violations of jus cogens status. While the International Court of Justice concluded that customary international law has not yet developed to the point where a state is not entitled to immunity in case of serious violations of human rights law or the law of armed conflict, this conclusion has been contested by national courts and legal scholars. While this paper agrees with the outcome of the judgement, it does not fully agree with the arguments and reasoning of the court. According to this paper, the balance between state immunity and jus cogens may not yet be finally settled.