Struggle between State Immunity and Jus Cogens at the International Court of Justice

One of the controversial issues at the international courts, particularly at International Court of Justice (ICJ), is the relationship between State immunity and the norms of jus cogens nature. State, enjoying of immunity ratione materiae, is a legal person who has a binding legal obligation to respect jus cogens norms. State immunity is among the oldest rules of international law. It is the immunity that a State enjoys in respect of itself (jurisdictional immunity) and its property (enforcement immunity) from the jurisdiction of the courts of another State (Art. 5 United Nations Convention on State Immunity, 2004). This immunity concerns to the status of a State as an international legal entity. State immunity is based on the fundamental principles of equality of states and non-intervention. A State has to do her acts within the limitations of the jus Cogens norms. While the primarily beneficiary of the state immunity is the state itself, the beneficiary of the norms of jus Cogens nature is the international community as a whole. Jus Cogens norm, inthe words of the Vienna Convention on Law of Treaties (1969), “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Art. 53). Accordingly, as to the jus cogens states are not permitted to depart under any circumstances. International Courts, regionally of globally, have dealt with the cases involving the notions of State immunity and jus cogens. The matter has been dealt with by the ICJ in International Jurisdictional Immunity case toward the relationship between these two concepts. Although it has reached, based on contemporary situation in international law, to sound result, some critiques in achieving to that conclusion are considerable.