Public Law Studies Quarterly

Balancing Procedural and Substantive Rules in light of the Relationship between Immunity and Responsibility in the Case Law of the ICJ

Document Type : Article

Authors

Mahshid Ajeli lahiji 1
Majid Zahmatkesh 2
S. Ali Hosseiniazad 1

1 Ph.D. in International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, ‎Tehran, Iran

2 Ph.D. in International Law

https://doi.org/10.22059/jplsq.2021.326562.2819
Abstract
The immunity of the state has a strong basis in customary international law. But the nature of these rules is not exactly obvious. Lawyers have different points of view on determining immunity as procedural or substantive rule. Twice the International Court of Justice had the chance to evaluate the nature of state immunity and its probable conflict with substantive rules. The first time, in the case concerning Yerodia arrest warrant (Congo v. Belgium) in 2002 and the second time, in the case concerning the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) in 2012. The question of this paper is whether the distinction between the procedural rule of immunity and a substantive jus cogens rule as is used by ICJ has a legal basis or can it be legally challenged? It will be argued that the ICJ approach in using the distinction can cause problems like descending the position of jus cogens and impunity for the perpetrators of the most serious crimes. Thus, the ICJ should be more cautious in using such a reasoning.

Keywords

international court of justice
International law
procedural and substantive rules
international responsibility
immunity
Subjects

  1. English

    1. A) Books
    2. Malanczuk, P. (2002). Akehurst’s Modern Introduction to International Law. London: Taylor & Francis e-Library.
    3. Merrills, J. G. (2011). International Dispute Settlement. Cambridge University Press.
    4. Shany, Y. (2014). Assessing the Effectiveness of International Courts. Oxford University Press.

     

    1. B) Articles
    2. Colangelo, A. J. (2013). Jurisdiction, Immunity, Legality, and Jus Cogens.Chicago Journal of International Law, 14(1), 53-91.
    3. Committee of Legal Advisers on Public International Law (2002). Immunity for Heads of State, Heads of Government, Foreign Ministers and Other State Officials. 23rd meeting, Strasbourg, 1-18.
    4. Crawford J. R. & T. D. Grant (2012). Local Remedies, Exhaustion of. in: R. Wolfrum (ed.). The Max Planck Encyclopedia of Public International Law, Oxford, 6, 895-904.
    5. Galand, A. S. (2019). Article 13 (b) vs Immunity of State Officials. In: UN Security Council Referrals to the International Criminal Court, Brill: Nijhoff, 153-201.
    6. Orakhelashvili, A. (2007). State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong. EJIL, 18, 955-970
    7. Pellet, A. (2010). The Definition of Responsibility in International Law. in: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds.), The Law of International Responsibility Oxford University Press, 3-16.
    8. Risinger, D. M. (1982). Substance and Procedure Revisited with Some Afterthoughts on the Constitutional Problems of Irrebuttable Presumptions. UCLA Law Review, 30, 189 – 216.
    9. Souresh, A. (2017). Jurisdictional Immunities of the State: Why the ICJ Got It Wrong”, European Journal of Legal Studies, 9(2), 15-35.
    10. Talmon, S. (2012). Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished. Leiden Journal of International Law, 25, (04), 979-1002.
    11. Thirlway, H. (2001). The Law and Procedure of the International Court of Justice 1960-1989. BYBIL, 72, 37–181.
    12. Weatherall, T. (2015). .Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence. Geo. J. Int'l L., 46, 1151-1212.

     

    1. C) International Documents
    2. Charter of the International Military Tribunal of Nuremberg, 1945
    3. Charter of the International Military Tribunal of Tokyo, 1946
    4. Court of Appeal of Dakar, Habre´, 125 ILR 569, 20 July 2000
    5. ECJ, Case C-17/10, Toshiba Corporation and Others, Opinion of Advocate-General Kokott, delivered on 8 September 2011
    6. ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002.
    7. ICJ, Jurisdictional Immunities of the State, (Germany v. Italy: Greece intervening), 2012
    8. ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20 April 2011
    9. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001
    10. International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind, 1996.
    11. International Law Commission, Second Report on Diplomatic Protection by Mr. J. Dugard, Special Rapporteur, UN Doc. A/CN.4/514, 28 February 2001
    12. International Military Tribunal for the Trial of German Major War Criminals, Judgment, Vol. 22, 1949
    13. Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment I
    14. Statute of the International Criminal Court, 1998
    15. Statute of the International Criminal Tribunal for Rwanda, 1994
    16. Statute of the International Criminal Tribunal for the former Yugoslavia, 1993
    17. Supreme Court of Poland, Natoniewski v. Federal Republic of Germany, Decision of 29 October 2010
    18. Supreme Court of the United States, Erie Railroad Co. v. Tompkins, 304 U.S. 64 at 91 (1938).
    19. The International Law Institute (ILI), The resolution on ‘The Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes’, September 2009
    20. United Nations, Convention on the Prevention and Suppression of the Crime of Genocide, December 1948

     

    References In Persian:

    - Books

    1. Ziaei Bigdeli, M. (2012). Public International Law. Tehran: Ganj-e Danesh (In Persian).
Public Law Studies Quarterly
Volume 53, Issue 3 - Serial Number 35
Autumn 2023
Autumn 2023
Pages 1491-1512

  • Receive Date 02 July 2021
  • Revise Date 06 September 2021
  • Accept Date 08 November 2021

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