Browsing by Author "Bae, Junhyun"

Tiivistelmä/Referat – Abstract This thesis aims to unravel one of undiminished debates of international law, namely, the correlation between State immunity in civil proceedings and jus cogens norm. It attempts to do so by exploring how one of the two affects the other one within the respective rationales. On the side of State immunity, at heart of the debate is whether or not a jus cogens exception to immunity can be covered by the rationale of the restrictive immunity. For an act of a foreign State to be immune under the current phase of State immunity, it should either be acta jure imperii or fall within the provided exception to immunity in the written rules of State immunity. Thus, in order for a State that violated jus cogens norm to be accountable before a foreign court, acts contrary to jus cogens should be by no means sovereign acts. However, the examinations on the contemporary categorization of State conducts and the legal structure of State immunity draws that even those acts are still considered as acta jure imperii, notwithstanding the abusiveness of the sovereign power, the lack of official mandate and severe illegality of the acts. Furthermore, none of the written law of immunity provide a jus cogens exception. Meanwhile, even acta jure imperii that causes physical harms to person or property in sovereign capacity can be deprived of jurisdictional immunity under the so-called territorial tort exception, as one of the traces that retains territorial sovereignty over State immunity. Summations of the legal debates on the territorial tort exception draws that the public character of jus cogens violating acts committed on the territory of the forum State is pushed back to territoriality. However, when it comes to armed forces and military operations, international law entitles absolute immunity to the group and the acts committed even on the territory of the forum State. On the side of jus cogens, at the heart of debate is the impact of jus cogens as the highest international law on State immunity both internationally and nationally. Some argue that the superior attribute of jus cogens enables the norm to automatically overrides the immunity of a foreign State. However, merely resorting to the notion of jus cogens and assuming a priori conflict is incompatible with the framework of current international law. Rather, for there to be a conflict between jus cogens and State immunity, it should be that jus cogens must contain a stipulation that State immunity cannot derogate from. On close scrutiny, however, both the literatures and the State practices in judicial form do not recognize any ancillary procedural rule of peremptory norm to offset State immunity. Moreover, any inherent means to enforce jus cogens cannot be deduced from the concept of jus cogens itself. At the domestic level, on the other hand, the impact of jus cogens as a rule of international law is limited in particular in the States with domestic immunity legislation. It has been upheld that even the supremacy of jus cogens does not affect the principle of the primacy of domestic legislation. Thus, although the doctrine of implied waiver was asserted in order to overcome the statutory limitation, the immunity is retained in those States, unless a jus cogens exception to immunity is enacted. In contrast, in the States where domestic immunity legislation is lacking, the jurisprudences adopted the interpretative approach that referred to the wide spectrums of the arguments of international law at issue including those of the law of State responsibility and focused on the values that jus cogens aims to protect.