The Relationships Between State Immunity And Jus Cogens

This article concerns the relationships between the doctrine of state immunity and jus cogens. Based on the analysis of the theory and practice in international law, the author criticizes current arguments towards the relationships between state immunity and jus cogens, especially that of the distinction between procedural and substantial right. The author concludes that the relationships between these two institutions shall not be in absolute terms but dependent upon a case-by-case analysis. The article consists of four chapters:Chapter One articulates the basic theories of state immunity and jus cogens. Based on the inspection of the foundations of state immunity as well as its historical origins, the author casts doubts upon the characterization of state immunity as procedural in nature; on the other hand, while jus cogens had been introduced in modern international law since1969, its contents and legal effects are still not clear.Chapter Two conducts a comprehensive analysis upon the prevalent procedural-substantial distinction of the relationships between state immunity and jus cogens. This analysis is based on the background of Jurisdictional Immunity case of ICJ in2012. The author gives comments on the Court’s judgment as well as different arguments in academia. The author concludes that not only is this absolute distinction of procedural and substantial rights untenable in international law, more importantly, it also potentially causes the situation whereas the perpetrators of violations of jus cogens assume no punishments and victims therein lose every possible means of remedy.Based on what has been discussed in Chapter Two, the author goes on in Chapter Three to examine other arguments presented in practices, including the argument which claims that violations of jus cogens is in itself constitutes tacit waiver of state immunity and the argument which classifies violations of jus cogens as acta jure gestionis. The author finds that while these arguments are flawed ab initio, they nonetheless illustrate that practices concerning the relationships between state immunity and jus cogens are far from unified.Finally, the author in the last Chapter proposes a case-by-case analysis in dealing with the relationships between state immunity and jus cogens in replacement of the current absolute attitudes towards this matter. When the victims have obviously lost every possible means of remedy, the doctrine of state immunity shall not impede the enforcement of jus cogens in domestic courts. This argument not only leaves rooms for future development in these two realms of international, but also makes a proper balance between different interests in particular case possible.