Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished

Abstract

In the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the International Court of Justice (ICJ) held that rules of jus cogens forming part of the law of armed conflict did 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 they addressed different matters. The jus cogens rules were substantive rules of international law while the rules of State immunity were procedural in character. The distinction between substantive rules of a jus cogens character and procedural rules has been criticized for its ‘excessive formalism’. It has been called ‘detached from the reality of human rights protection’, a ‘purely theoretical construct’, ‘misguided’, ‘artificial’ and ‘illusory’. The distinction has been identified as one of the ‘conflict avoidance techniques’ resorted to by international and domestic courts to sidestep questions of normative hierarchy. Many of the arguments and criticism seem to be motivated by the unwanted result of the ‘substantive–procedural’ distinction, namely the de facto impunity for the most serious human rights violations, rather than by the distinction itself. This paper takes a step back from the alleged antinomy of substantive human rights norms of a jus cogens character and procedural rules of immunity and attempts to broaden the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of a jus cogens character generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Depending on the circumstance, substantive rules may, however, have a certain (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 of jus cogens and procedural rules of immunity are involved.