Jus Cogens after Germany v. Italy
Substantive and Procedural Rules Distinguished
Bibliographic Data
| ID | 12186294 |
|---|---|
| Authors | Stefan Talmon (corresponding author) |
| Year | 2012 |
| Volume | 25 |
| Issue | 4 |
| Pages | 979-1002 |
| Publication date | 2012-11-01 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Leiden Journal of International Law (JOURNAL) |
| Journal identifiers | ISSN: 0922-1565 • E-ISSN: 1478-9698 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.1017/s0922156512000532 |
| OpenAlex | W3121161997 |
| Language | EN |
| References cited | 22 |
In the case concerning Jurisdictional Immunities of the State , the ICJ held that rules of jus cogens 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 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 a jus cogens character 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 of jus cogens and procedural rules of immunity are involved
Antinomy · Epistemology · Human rights · Interpretation (philosophy · Jurisdiction · Law and economics · Political science · Procedural law · Sociology · State (computer science · State immunity · Substantive law · Substantive rights · Computer Science · European and International Law Studies · International Law and Human Rights · Law · Ombudsman and Human Rights · Philosophy
Jurisdiction and Admissibility
Die Tyrannei der Werte
The Statute of the International Court of Justice
When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case
Torture and State Immunity
The Invocation of Responsibility for the Breach of 'Obligations under Peremptory Norms of General International Law
State Immunity and Hierarchy of Norms
Human Rights and the Magic of Jus Cogens
Forbidden Treaties in International Law
The International Court and ‘Its Freedom to Select the Ground Upon Which it Will Base its Judgment’
State Immunity, Human Rights, and Jus Cogens
| Citation velocity | historical |
|---|---|
| Highly cited | No |