B) 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 party[60].

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 government[61]. In the Kalogeropoulou decision of 12 December 2002[62], 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 2006[64] and the ICJ in the Arrest Warrant case of 2002[65] 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.

3. The Rantania has violated it’s obligations under The Peace Agreement of 1965

In fact Rantania did not perform its obligations underthe Peace Agreement of 1965 and thereby has violated two interrelated fundamental general principles of international law, that is pacta sunt servanda principle and the principle of good faith. The former is the oldest principle of international law. It constitutes the basis of the law of treaties and means that a treaty is binding upon the parties. The latter is enshrined in the Article 2(2) of the United Nations Charter stating that “all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.”[68] Thereto, the duty of states “to fulfill in good faith their obligations resulting from international law generally, including treaties”[69] is also elaborated in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States.

The principle of good faith is “one of the basic principles governing the creation and performance of legal obligations, whatever their source”[70], because “trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential.”[71] Consequently, with reference to foregoing its possible to draw an inference that the exercising of jurisdiction by Rantanian courts constitutes intolerable transgression against the essence of Aprophe’s immunity from the jurisdiction of foreign courts, and also presents the glaring violation of the 1965 Treaty.

IV. Aprophe’s destruction of a building of the Mai-Tocao Temple did not violate international law

Whereas Rantania has committed an act of aggression and its military operations against Aprophe were in contrary to United Nations Charter, the destruction of a Mai-Tocao Temple was the invocation on the imperative military necessity in urgent circumstances when there was not other possible alternative. Furthermore Aprophe has taken all measures as far as possible to safeguard the Mai-Tocao complex. Therefore Aprophe’s destruction of the Mai-Tocao Temple should be justified in accordance with the provisions of international humanitarian law.

Date: 2015-12-17; view: 736