Jus CogensafterGermanyv.Italy: Substantive and Procedural Rules Distinguished

Abstract

Abstract In the case concerningJurisdictional Immunities of the State, the ICJ held that rules ofjus cogensdid not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of ajus cogenscharacter generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules ofjus cogensand procedural rules of immunity are involved.

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