The political economy of jus cogens.

• Author: Stephan, Paul B.
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

This Article examines the basis of an asserted jus cogens exception to sovereign immunity. It demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and tribunals, or fear about the rise of powerful and authoritarian actors in the international system, leads to a much narrower role for jus cogens, and thus broader sovereign immunity.

TABLE OF CONTENTS I. JUS COGENS BEFORE THE INTERNATIONAL COURT OF JUSTICE II. THE EMERGENCE OF THE JUS COGENS CONCEPT III. A FUNCTIONAL ANALYSIS OF JUS COGENS A. Jus Cogens as a Sword B. Jus Cogens as a Shield IV. CONCLUSION A deep tension exists between sovereign immunity and the contemporary jus cogens doctrine. On the one hand, all states recognize that subjecting a foreign sovereign to another state's legal process, in the absence of consent, flies in the face of an international system based on sovereign independence. In an earlier era it was a lawful cause for war. (1) On the other hand, since World War II there has grown an idea that violations of human rights cannot go unpunished. In the last two decades, abhorrence of impunity has migrated to the concept of jus cogens, the idea that certain norms of international law are so compelling that sovereign immunity falls away. The jus cogens concept does double duty: it both legitimizes an exercise of judicial power that would otherwise violate the settled norms of international law, and forbids sovereigns from immunizing conduct that transgresses a jus cogens norm.

The present dispute between Germany and Italy before the International Court of Justice (ICJ) presents both aspects of the doctrine. The Italian Corte Suprema di Cassazione justified the exercise of Italian judicial jurisdiction over the German state on the basis of the nature of misdeeds for which Germany was responsible. Before the ICJ, Italy also argued that a treaty purporting to settle all claims against Germany arising out of World War II atrocities had no legal effect, again because of the nature of the injuries suffered. The case thus invites a fuller consideration of the origins and functions of the jus cogens concept as a limit on both sovereign immunity and sovereign power. Regardless of how the ICJ ultimately disposes of the matter, what might domestic legal actors--in particular courts--take away from the case?

This Article will not advise policymakers how to resolve the obvious conflict between immunity and jus cogens. Indeed, part of its argument is that persons seized with lawmaking authority (domestic and international courts as well as legislators and foreign offices) should not put too much weight on the opinions of legal scholars, this one included. Rather, it will demonstrate that arguments about jus cogens are ultimately about power, and that strong jus cogens claims have complicated consequences. What works in one group of states (liberal democracies with strong civil societies and independent judiciaries) doesn't work with another (authoritarian states with the resources to resist international pressure).

Among liberal democracies, jus cogens arguments empower particular groups--academics, employees and advisers of international organizations, and national and international judges--at the expense of national officials and legislators. As to these states, expanding and strengthening jus cogens advances the privatization of international law. (2) Between authoritarian regimes and liberal democracies, broadening jus cogens may mean limiting the constraining effect of international law. Clarifying the stakes in these arguments does not drive one toward any particular conclusion, but does illuminate the consequences of particular choices. Thus, this Article serves as an exercise in transparency in legal decision making, not as apologia for any particular outcome.

The Article begins with a description of the jus cogens arguments made by both the Corte Suprema di Cassazione and Italy and considers their logical implications. It then sketches the development of the jus cogens concept in public international law. It notes the analogy that early advocates made with the eponymous civil law doctrine. Next, it explores the polarized debate that unfolded during the Cold War, followed by the human rights paradigm that transformed jus cogens over the last two decades. The Article relates these developments to larger transformations in international relations and the corresponding international law structures. It then considers the implications for the distribution of power that variants of jus cogens imply. Finally, the Article discusses the role of non-state actors in the articulation of international law and the appropriate use of their claims by domestic courts and international tribunals. It also notes the complexities that may arise when some states in the international system assign responsible roles to independent judges and jurists and others do not.

This Article demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and tribunals, or fear about the rise of powerful and authoritarian actors in the international system, will lead one to assign a much narrower role to jus cogens.

1. JUS COGENS BEFORE THE INTERNATIONAL COURT OF JUSTICE

   The story begins with a late effort to revisit the atrocities committed by German military and security forces in Italy in the latter part of World War II. A victim of deportation and forced labor brought suit in an Italian civil court against the German Federal Republic, the legal successor to the German Reich, for compensation. A first-instance court dismissed the case because Italian courts, in the absence of an applicable statute, apply the customary international law of sovereign immunity, which recognizes no exceptions for state acts that violate international law. The Corte Suprema di Cassazione reversed this decision. It ruled that custom had evolved so as to recognize an exception to immunity in cases involving grave violations of that portion of customary international law that has attained the status of jus cogens. Accordingly, it allowed the case to proceed. (3)

   Once Italian courts sought to enforce their judgments against German property in Italy, Germany called on the ICJ to intervene. (4) The jurisdiction of the ICJ rests on a 1957 Convention encompassing any dispute among the signatory European states. (5) Italy, while not contesting the ICJ's jurisdiction, sought to bring a counterclaim for compensation from Germany for its war crimes. The ICJ rejected this move. (6) The remainder of the case remains sub judice.

   The ICJ's disposition of the counterclaim, the only substantive ruling in the dispute to date, suggests some skepticism about one possible use of the jus cogens concept. Most of the members of the Court regarded Italy's counterclaim as governed by the Peace Treaty of 1947, which contains a provision waiving claims that Italy and Italian nationals might bring against Germany/ All but one of the judges concluded that the 1957 Convention, on which the ICJ's jurisdiction rested, barred any consideration of the legal interests determined by the Peace Treaty. (8) Judge Cancado Trindade, in dissent, asserted that "any purported waiver by a State of the rights inherent to the human person would, in my understanding, be against the international ordre public, and would be deprived of any juridical effects." (9) For him, the waiver contained in the 1947 Treaty could not bar Italy's claim, regardless of whether the ICJ had jurisdiction to apply or interpret that instrument.

   Here, in a nutshell, one can find three distinct visions of the jus cogens concept. The first, more traditional vision of jus cogens is as a shield. It sets a limit on international law by discarding obligations that violate a nonnegotiable norm. By diminishing the scope of international law, it necessarily increases the power a state has to select among an array of possible choices as to its domestic legal order. (10) It asserts that any international obligation purporting to violate jus cogens norms has no legal effect, and thus restricts a state's power to enter into enforceable international agreements that might expand the scope of international law. Similarly, it negates customary international legal obligations to which a state might accede, if those obligations transgress a jus cogens norm. One can draw an analogy to a constitutional rule in domestic law, which invalidates otherwise lawful state acts, thus restricting state power and correspondingly expanding individual liberty. By limiting the range of international obligations that a state can assume, the shield vision of jus cogens similarly expands the liberty of states.

   In the case before the ICJ, Germany contends that customary international law imposes a general obligation on all states not to subject foreign states to domestic judicial process, at least when the suit challenges the public acts (acta jure imperii) of the defendant state...