1. There is no universal recognition of the specific procedural effect of jus cogens norms

Under the Article 53 of the Vienna Convention on the Law of Treaties “a peremptory norm of general international law 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.”⁵⁶ The intention of these rules is to protect fundamental values of the international community and it does not mean that the alleged violation by one state allows courts of another state to deny immunity to the former. Implying, as the Rantanian Court does, that the violation of peremptory norms of international law automatically entails procedural effects, such as the denial of immunity, does not appear correct, at least for reasons of the scarcity of state practice in this regard.

The most important judicial precedents that have denied immunity were the Ferrini v. Germany case and the Prefecture of Voiotia v. Germany case. In the Ferrini case the Corte di Cassazione (the Supreme Court of Cassation) held that a foreign state cannot enjoy immunity in respect to the international crimes⁵⁷. The Court decision in the Ferrini case was subsequently reconfirmed by the Italian Supreme Court of Cassation in later judgments. “In the May 29, 2008, rulings, the Court said it was aware that, in denying Germany immunity with respect to jus cogens violations, it was not applying an already existing norm of customary international law but rather contributing to its formation in a framework of legal uncertainty.”⁵⁸ In the case Prefecture of Voiotia v. Germany decided by the Hellenic Supreme Court the Court also denied Germany the right to rely on immunity⁵⁹. Consequently, there is no consistent state practice to be able to recognize a new rule of international law.

2. The judicial practice grants state immunity in the disputes related to the norms of jus cogens character

In most cases the state judicial practice is different from the decisions of the Rantanian court and courts mentioned above. In fact the practice grants State immunity. In addition it is important to mention that there is the ICJ decision denying the special effect of jus cogens. Specifically in the Armed Activities judgment of February 3, 2006 the Court noted that the mere fact that the dispute is related to the norms enjoying jus cogens character cannot of itself give the Court jurisdiction to take cognizance of the dispute without the consent of the another party⁶⁰.

Going forward, in the case of Al-Adsani v. United Kingdom, the European Court of Justice decided that Kuwait could rely on state immunity against a claim brought in the United Kingdom concerning acts of torture allegedly committed by a member of the Kuwait government⁶¹. In the Kalogeropoulou decision of 12 December 2002⁶², the ECHR, “again by majority, confirmed the Al-Adsani judgment.”⁶³ Likewise the House of Lords in Jones and Mitchell v. Saudi Arabia case of 2006⁶⁴ and the ICJ in the Arrest Warrant case of 2002⁶⁵ upheld both the immunity of the state and the state officials, although the latter had committed the serious international crimes generally considered as jus cogens norms.

Consequently, the absence of an explicit customary rule restricting immunity and the fact that there is no general practice and universal recognition of the specific procedural effect of jus cogens norms present the formidable obstacles to denying sovereign immunity in cases of gross human rights violations. Therefore despite that “there is a trend in the practice of States towards the restrictive doctrine of immunity”⁶⁶ and “the increasing number of emerging exceptions, the general principle of sovereign immunity remains an important part of the international legal order, except when expressly stated otherwise, and there is no evidence that an international peremptory norm has been established to suggest otherwise.”⁶⁷

In the view of the foregoing, the assumption of the Rantanian court that the jus cogens are able to overcome Aprophe’s sovereign immunity does not reflect the current status of customary international law. The Rantania by allowing civil procedures in its courts has violated its obligations under the international law and has failed to respect the jurisdictional immunity of the Republic of Aprophe. Accordingly, Rantania should be responsible for its actions against the Republic of Aprophe. Furthermore, the decision of Rantanian court was based on illegal interpretation of the Peace Agreement of 1965 given by the Eastern Nations Court of Human Rights in conflict with the principle of its non-retroactive jurisdiction under the Eastern Nation Charter. And therefore, in accordance with the “Ex iniuria ius non oritur” principle of international law meaning that legal rights and results can not be derived from illegal actions, Rantania had not to enforce the decision of the Eastern Nations Court.