2. The core of talmon's argument

At the outset of his classification of rules, Talmon suggests that:

On the other hand, ‘[p]rocedural rules could be defined negatively as all rules that do not bear upon the question whether or not a particular conduct is lawful or unlawful’,Footnote ⁴ and ‘[r]ules on jurisdiction certainly are one example of procedural rules’.Footnote ⁵ Then, Talmon draws a further distinction that ‘[r]ules of a procedural nature or procedural rules are also not identical with the “rules of procedure”’,Footnote ⁶ while ‘rules governing the judicial and non-judicial interpretation, implementation, and enforcement of substantive rules’Footnote ⁷ are labelled ‘adjective law’.Footnote ⁸

Some internal contradictions in this arrangement are then revealed in suggestions that:

If so, then this implicitly acknowledges that what matters is not whether a rule is inherently procedural or not, but how states have designed it, what framework it forms part of, what particular function it performs as part of the international legal system, and how it relates to other rules. Preconceptions as to the nature of the rule have therefore to be abandoned in favour of accurate focus on the specific contexts in which particular rules of international law operate. This multiplication of categories – such as substantive, procedural, adjective – can get more controversial with each step, for every new suggested category requires proof of its acceptance and recognition as a matter of positive international law, or risks resulting in a mere assertion premised on over-theorizing.

3. Towards the systemic classification of rules

In the international legal system there is no legislative authority that could formulate a binding categorisation of legal rules, and therefore any classification of rules can either be doctrinal, or undertaken as part of judicial decision-making in relation to the case that is being adjudicated, yet presumably premised on the judicial understanding of the more generalized nature of particular aspects of normativity. Any classification one suggests should therefore be cautious, for the abstract characteristics of the rule may not always overlap with the function that states accord to it under that legal system. Any categorization of rules can be feasible only if it is duly grounded in the systemic context of international law. A rule has to be substantive or procedural strictly for the purposes of international law, irrespective of what particular type of conduct or exercise of public authority it triggers or censures as a matter of the national law of states. What needs to be borne in mind is the autonomy of international law for the purposes of the characterization of its own rules, as opposed to its dependence on domestic legal systems for that purpose. Furthermore, any division of rules into various categories should be performed solely on the basis of legal reasoning, independently of whether the particular classification of rules would be seen as wise, convenient, acceptable, or opportune from a particular philosophical, theoretical, or political point of view, so that then our doctrinal priorities do not aspire to be a substitute for the structural characteristics of international law.

International legal considerations that could inform the structural or systemic place of the rules of international law seem to effectively boil down to the following questions: (a) what particular function the relevant rule serves within the international legal system, and (b) whether the rule in question is substantively actionable as a matter of international law.

There have been three cases of distinguishing some rules from others through the forums that could lay claim to some authority. In the first place, the UN International Law Commission (ILC) has distinguished between primary rules and secondary rules for the purposes of the law of state responsibility. Secondary rules encompass ‘the general conditions under international law for the state to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom’,Footnote ¹⁰ as opposed to rules defining the content of international legal obligations, as this task is done through multiple rules of customary and conventional law. In upholding this distinction, the ILC reasoning was premised on what Special Rapporteur Ago had specified decades ago, namely that ‘it is one thing to define a rule and the content of the obligation it imposes, and another to determine whether that obligation has been violated and what should be the consequences of the violation’.Footnote ¹¹

This distinction was drawn solely for codification purposes, rather than singling out certain rules due to the uniqueness of their legal character. More so, if the logical progression as to the character of rules is carried forward, the law of state responsibility can end up with a ladder of multiple primary and secondary rules – consisting of elements of attribution, invocation, reparation, countermeasures – where the single rule can be primary (antecedent) in relation to some and secondary (consequential) in relation to other rules.

Second, the International Court of Justice in the Pulp Mills case made a distinction between substantive rules relating to the use by states of shared resources and procedural rules relating to the operation of supervision mechanisms.Footnote ¹² Third, the ICJ made normative distinctions specifically in relation to fundamental rules and obligations under international law, suggesting – in the East Timor Footnote ¹³ and DRC v. Rwanda Footnote ¹⁴ cases – that the rules of jus cogens and obligations erga omnes do not necessarily translate into procedural positions regulating the access of states to the Court's proceedings.Footnote ¹⁵ Arguably in the same spirit, in the case of Germany v. Italy the same Court upheld the distinction between substantive and procedural (jurisdictional) rules, the latter allegedly being exempt from the overriding effect of jus cogens.Footnote ¹⁶

Whichever doctrinal perspective one adopts, or whichever judicial outcome one approves or disapproves, it seems to be indisputable that the three above categorizations of rules do not serve the same rationale, or refer to the same areas of international law, and that the classifications they offer are essentially different from each other. But more specifically, what does the procedural nature of the rule mean? Can a rule which has nothing to do with international procedures still be regarded as a procedural rule? In the Pulp Mills case, on the other hand, procedural obligations do relate to international procedures, yet they are normatively indistinguishable from substantive obligations.

Before we venture into categorizing individual rules into groups, it might also be worth focusing, on pragmatic terms, on what particular rules of international law do and what function they serve.

First, there are rules relating to substantive conduct, entailing substantive prescriptions, such as the one stipulating the right of foreign warships to navigate through territorial seas under the UN Convention on the Law of the Sea,Footnote ¹⁷ or the obligation not to exercise national criminal jurisdiction over diplomatic agents under the 1961 Vienna Convention on Diplomatic Relations.Footnote ¹⁸ It is at this substantive level that the rules of international law get divided into those which give rise to negative and positive obligations (for instance elements of the freedom from arbitrary deprivation of life under Article 2 of the European Convention on Human RightsFootnote ¹⁹); those premised on the pattern of bilateralism and reciprocity, and those of jus cogens; those that produce reciprocal, objective, and interdependent treaty obligations; those producing obligations inter partes and erga omnes. All these rules invariably require states to perform or abstain from a substantive conduct.

There are, second, rules stipulating procedural, or consequential, obligations to give effect to substantive obligations. One such distinction was drawn in Pulp Mills, where the International Court of Justice stated that:

In this case, the classification of rules derived from the priorities arranged by states parties through the treaty, not from the abstract characterization of rules. Moreover, the Court did not allude to, nor would it have been feasible to project in the context of that case, any specific normative character of some rules just because they have a procedural character. To the contrary, ‘the two categories of obligations . . . complement[ed] one another perfectly, enabling the parties to achieve the object of the Statute which they set themselves in Article 1’Footnote ²¹ of the 1975 Statute. The rationale of normative classification was to serve the aim and enforcement of substantive rules, not erect barriers to the proper enforcement of those substantive rules.

The Court further emphasized that ‘nowhere does the 1975 Statute indicate that a party may fulfil its substantive obligations by complying solely with its procedural obligations, nor that a breach of procedural obligations automatically entails the breach of substantive ones’.Footnote ²² This approach was required by the need of effective application of treaties. Through the relevant treaties, states parties had undertaken to perform the range of substantive actions and complement them through procedural steps, having assumed all these obligations in the similar consensual manner. The environmental risk could arise both from the failure to implement substantive obligations and from the failure to implement procedural obligations of reporting and notification. The Court's entire reasoning was thus based on the approach that both substantive obligations and the joint machinery of co-operation were part of the same object and purpose of the treaty.

There is no indication in the judgment that these procedural obligations have a less ‘substantive’ normative existence. The Court's emphasis on their procedural nature is meant precisely to preserve their separate existence as substantive obligations relating to particular procedures, the breach of which will give rise to causes of action and trigger the law of state responsibility just like any breach of any other substantive obligation.

As the Court observed, ‘the fact that the parties have complied with their substantive obligations does not mean that they are deemed to have complied ipso facto with their procedural obligations, or are excused from doing so’.Footnote ²³ Procedural obligations thus effectively operate as yet further, contextually consequential, substantive obligations that have been undertaken in the same consensual manner, govern the rights and obligations of states parties, and are actionable just like any substantive obligation. The normative distinction between the two related only to their content and their mutual contextual relationship, not to their normative status or character.

There are further instances that blur any asserted difference between substantive and procedural rules across the board. The rule stipulating the access to courts and fair trial (as in Article 6 of the European Convention on Human Rights or Article 14 of the International Covenant on Civil and Political RightsFootnote ²⁴) deals with procedure but nevertheless is a substantive obligation; so is the rule prohibiting denial of justice. Several human rights and anti-terrorist conventions are built in such sequential manner that first they proscribe the commission of the relevant criminal acts and then, should those acts nevertheless be committed, specify a number of ‘procedural’ and jurisdictional obligations, including the duty aut dedere aut judicare. Those jurisdictional or ‘procedural’ rules are essentially substantive obligations to be carried out in the same way. There can, thus, be substantive legal rules relating to rights and obligations with regard to some procedure; there are also substantive legal rules specifying further substantive rules operating as legal consequences of violations of the antecedent substantive rules. It would be ideology, not legal method, to portray these rules as procedural rules in terms of their inherent normative character as opposed to a mere description that they relate to some sort of procedure.

Third, there are rules relating to ascertaining the meaning and scope of substantive rules. These are rules on interpretation and validity of international instruments. Rules as to how we ascertain whether the relevant substantive rule has been breached, including those on attribution, defences, reparation, countermeasures, and so on, can also belong to this category.Footnote ²⁵

Fourth, there are rules as to the access to international organs by states, individuals, or corporations, and the conduct of procedure by such organs. This group of rules encompasses those relating to jurisdiction and admissibility, as well as the range of judicial and quasi-judicial powers, and reporting and notification procedures (unless the contractual choice made by states through a treaty makes these rules rank as substantive obligationsFootnote ²⁶).

It seems clear from this outline that, where other things are equal, only in relation to the first two categories of rules can a substantive cause of action be raised and reparation asked for; these are substantive rules as far as international law is concerned.

As we saw above, Talmon suggests that ‘[p]rocedural rules could be defined negatively as all rules that do not bear upon the question whether or not a particular conduct is lawful or unlawful’,Footnote ²⁷ which seems to replicate the way that the ILC described the rules of state responsibility,Footnote ²⁸ for the rules that define the content of international obligations would then also, in case these rules are breached, be the sole point of resort to see whether the conduct in question is lawful or unlawful. The rules on state responsibility, including the rules on attribution, would not help answer this question, but would merely perform the additional or accessory task of seeing whether that which the state has done contradicts that which the relevant substantive obligation already requires. The two-tiered requirement under Article 2 of the 2001 ILC Articles on State Responsibility – the attributability and the breach of an international obligationFootnote ²⁹ – only reinforces this conclusion.

Thus, on Talmon's above definition of procedural rules, the rules on responsibility, including attribution, would also appear to be procedural, even though his analysis has earlier ranked attribution rules as substantive rules. The category of substantive rules cannot include attribution rules, because they do not as such entail a cause of action but merely point to the ways of identifying such a cause of action in relation to the breach of other – genuinely substantive – rules that determine the legality of particular actions of states. Furthermore, the rules on jurisdiction and immunities are clearly substantive even under Talmon's description of substantive rules, because they do define what is lawful and what is unlawful. Any violation of the legal obligation to accord immunity to foreign states or their officials is actionable under international law just like any other breach of a treaty or customary rule.

Those rules and principles of international law whose national implementation involves the activation of national judicial and other procedures, for instance rules about national jurisdiction, are also essentially substantive rules. The prohibition, for instance, of exercising jurisdiction based on the perpetrator's nationality would be created through the ordinary customary and treaty rules; it would involve the same kind of substantive steps (not) to be taken by the state just like not arresting foreign ships on the high seas or not expropriating property without compensation; and it would in the same way give rise to the cause of action. It would be a counterfactual suggestion to contend that one international prohibition requiring abstention from X is substantive but another one that involves abstention from Y that falls to be performed through national judicial action can be characterized as procedural and not substantive.

It would therefore be unwarranted to leave immunities out of the category of substantive rules. If one state breaches the obligation to accord immunity to another state, the latter state can demand cessation or reparation, or raise the matter before any international tribunal which has jurisdiction over the case, just as it would be able to do in relation to any other substantive obligation. The tribunal in question would then have to apply the rules of attribution to the substantive conduct of the alleged violation of the obligation to accord immunity, and decide on reparation. In fact this is what Congo and Germany have let the International Court of Justice do in the Arrest Warrant Footnote ³⁰ and Germany v. Italy Footnote ³¹ cases respectively.

Immunities (and jurisdictional rules broadly) are also generically different from procedural rules (which on Talmon's version also include the jurisdiction and admissibility requirements before international tribunals) and from secondary rules (on the ILC's version), for they do specify the substantive lawfulness of acts of the exercise of national jurisdiction, and their relevance is not solely confined to how we ascertain whether an unlawful act has been committed or whether the state in question has the standing to raise that matter.

Talmon's tapestry of rules is, thus, far from being suggestive of a uniform conclusion that could apply across the board, but instead refers to the variety of rules that serve different purposes and designations. Under the positivist vision of international law, what matters more is the way in which states create particular rules and the context in which they place them, rather than the focus on the inherent nature of norms that risks carrying us through the far-reaching chain of assertions.

4. Classification of rules and state immunity

Talmon suggests that ‘[t]here may be indirect and occasional collisions between the [rules of jus cogens and procedural rules including immunities], but there is no logical conflict between substantive rules and rules of a procedural character’.Footnote ³² To assess this proposition, a coherent distinction between an ‘occasional collision’ and normative conflict needs to be worked out. As a starting point, a normative conflict exists when two rules cannot apply to the same set of facts.

As clarified above, any rules on immunity are substantive rules just like any substantive rule of international law. It is a methodological fallacy to portray them as exempt from the impact of jus cogens on the basis of their alleged ‘procedural’ nature. The doctrine of jus cogens under Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT)Footnote ³³ and the corresponding customary law is absolute in outlawing conflicting rules and transactions, and draws no distinction as to the substantive or procedural nature of conflicting rules; and this is not altered by the fact that most jus cogens rules presumably refer to substantive conduct. The only reason that could allow immunities to escape the overriding effect of jus cogens is to be substantively unrelated to the normative operation of the relevant jus cogens rule; that is, result in no derogation from it. Applying this approach in Germany v. Italy Footnote ³⁴ would have resulted in according to jus cogens primacy over immunities, because the opposite approach renders peremptory norms meaningless, reduces them to declaratory assertions and deprives them of the ability to make the difference in relation to rights and obligations of the relevant entities. The very upholding of state immunity in Germany v. Italy has thus caused a normative conflict between the two sets of rules, leading to the position that one set of rules gains absolute effect and the other one gains no effect.

Further methodological and substantive problems arise from the ways in which the relevant judicial decisions are read. While the ICJ held in Arrest Warrant that ‘jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law’,Footnote ³⁵ it merely used this distinction in relative terms, also carefully pointing out that immunities could not be used to bring about impunity and that further several options of prosecution remained open;Footnote ³⁶ however, in Germany v. Italy the priority professed in Arrest Warrant as to the need to avoid impunity suddenly disappeared. No alternative venue for obtaining remedies was left to the victims and, as is clear from the context of the case, the respondent state was granted absolute legal security against war reparation claims. The Arrest Warrant case related to personal immunity of state officials (unlike Germany v. Italy which related to the immunity of the state as such). However, that difference is only situational, for if the principle that immunity should not result in impunity applies in one context, one needs at least convincing evidence to prove that the other contexts where state immunity is invoked allow discarding that imperative.

Furthermore, in Jones v. Saudi Arabia the House of Lords of England and Wales allowed Saudi Arabia to claim immunity before English courts, characterizing immunity as a means of diverting the dispute to another – in that case non-existent – means of settlement.Footnote ³⁷ Even though this assertion rang hollow, the policy priority was nonetheless stated. In Germany v. Italy, immunities were upheld in a blanket manner so that no countervailing consideration was deemed to be relevant, and the lack of alternative means of redress did not alter the outcome.Footnote ³⁸

It is, quite simply, impossible for international law to subscribe to both these mutually contradictory policies. The proponents of the distinction between substantive and procedural rules need to figure out which of these two options they support and see as representing the international legal position. For the distinction between the two options is substantial, giving rise to both legal and moral concerns, which concerns are inevitably involved when victims of atrocities are being denied the only available remedy.

Immunity, whether the individual's or the state's, goes right to the normative essence of the substantive jus cogens rule whose adjudication it prevents, because through this allegedly procedural impact immunity emasculates the substantive normativity of that substantive rule and leaves the beneficiaries of that rule without anywhere to assert their rights under that substantive rule. If the essence of immunity had no such rationale, why would the International Court of Justice in Arrest Warrant feel the need to construe it restrictively so that it does not foreclose all, indeed most, venues of accountability and prosecution? Therefore, when contrasted to the relevant jus cogens rules in the context of Jones and Germany v. Italy, immunity does aspire to make the relevant acts of torture and other relevant crimes lawful, for it takes away the only means through which the rules proscribing those acts can take legal effect. Furthermore, in relation to individual rights under international human rights law and international humanitarian law, accruing to the victim solely (that is, neither to its state of nationality nor the forum state nor the wrongdoer state as such),Footnote ³⁹ immunity leads to the effective nullification of that individual right through the mutual understanding – in essence a derogatory deal – between the forum and perpetrating states. A rule that can be invoked nowhere is not a legal rule. Likewise, an individual right that the individual can assert nowhere is not an individual right.

In the broader methodological perspective, the least one could reasonably have expected from the Court in Germany v. Italy was the substantiation of the alleged distinction between substantive and procedural (jurisdictional) rules in light of other comparable distinctions drawn as part of the international legal process, which then would have enabled the Court to verify the validity of distinctions it drew in Germany v. Italy. The Court did not focus upon the general features of normativity, nor say much apart from asserting that state immunity is a procedural principle; nor did the Court place its reasoning within the context of its own previous jurisprudence, such as Pulp Mills, or the ILC's work; nor did it address the factual and normative difference from the similar approach maintained in Arrest Warrant. This approach results in an unfortunate ad-hockery in the sense that distinctions as to normativity are portrayed differently in various cases without necessarily reflecting the need that the nature and premises of each of the normative classifications should be mutually compatible. In either case, this only reveals that the Court's mind was insufficiently applied to these underlying normative considerations, with the outcome that the systemic justification that has been found in relation to those other classifications of rules has not been sufficiently identified for the classification that describes immunities as procedural. Before Germany v. Italy there was no source of international law upholding such a distinction. Assuming, in one's scholarly capacity, that such a distinction can be validly introduced through a judicial decision would be counter-factual; assuming the same in one's institutional capacity would be delusional.

A further issue to be dealt with relates to the repeated attempts to explain the alleged lack of the overriding impact of jus cogens on immunities by the fact that jus cogens does not have all-encompassing superiority over all available patterns that form part of international judicial and quasi-judicial procedures. In some respects Talmon accepts the procedural effect of jus cogens in relation to dispute settlement, observing that ‘[t]he jus cogens character of the substantive rule thus results in the procedural condition of locus standi being automatically fulfilled for all states.’Footnote ⁴⁰ But then other examples are suggested to demonstrate the opposite. One example Talmon gives is the six-months’ rule under the European Convention on Human RightsFootnote ⁴¹ in relation to bringing claims before the European Court of Human Rights, which admittedly extends even to breaches of jus cogens such as torture;Footnote ⁴² his other examples relate to procedural limitations to prosecution under the Statute of the International Criminal Court,Footnote ⁴³ which regulates prosecution of jus cogens crimes; jurisdiction established over jus cogens under Article 66 of the 1969 VCLT;Footnote ⁴⁴ and the separation of international judicial jurisdiction from jus cogens pursuant to the Court's earlier decision on DRC v. Rwanda. Footnote ⁴⁵

But this relates to the mechanism that would not apply to the prohibition of torture but for the additional contractual agreement between states parties. Jus cogens rules have inherent consequences that the general doctrine of jus cogens accords to specific rules of jus cogens. Specific rules of jus cogens may also further be promoted or facilitated through the mechanisms that states parties additionally create, as is the case with the jurisdiction of human rights supervisory organs.Footnote ⁴⁶ That the implications entailed by such contractually established judicial or quasi-judicial jurisdiction – whether ICJ, ECtHR, or ICC – include some limitations as to the standing to bring the claim before the relevant organ does little to prejudice the effect of the relevant jus cogens rules that the general doctrine of jus cogens accords to them as a matter of the 1969 VCLT and the corresponding general international law. The parameters of the general doctrine of jus cogens are initially reflected in the 1969 VCLT, Articles 44–5, 53, 71, and then replicated in multiple ‘non-treaty’ areas. It was known already at the stage of the codification of the 1969 VCLT that jus cogens is not limited to the law of treaties.Footnote ⁴⁷

In all areas where jus cogens applies, it deals with situations arising after the wrongful act. Apart from the 1969 VCLT, the areas of state responsibility, statehood and recognition, waiver and acquiescence, or acts of international organisations are virtually unanimous in recognizing the effect of jus cogens in relation to situations produced after the violation of the relevant peremptory norm.Footnote ⁴⁸ The principal effect of jus cogens is to consequentially deny the rights, privileges and qualifications the relevant state action would command but for the peremptory status of the rule that the conduct in question violates.

Furthermore, DRC v. Rwanda did not concern immunities before national courts but merely saw jus cogens pleaded as an ancillary question dealing with the jurisdiction of the International Court itself that would not be there unless established by jus cogens as such. The situation was qualitatively different from national courts having a pre-existing jurisdiction on the basis other than that which confers or denies immunities. One situation encompasses cases where national court already has jurisdiction and has to embrace the issue of normative conflict between jus cogens and state immunity; while the other situation relates to claims that the very jurisdiction of an international tribunal has to be established through the invocation of jus cogens. That the second claim may not be sustainable does nothing to undermine the sustainability of the first claim.

That the approach that procedural rules are not affected by the effect of jus cogens cannot be generalized across the board, but is highly context-specific, is also illustrated by some examples that are alluded to in Talmon's analysis. Article 66 of the 1969 VCLT is not a very straightforward example because there have been objections to reservations that states parties to the 1969 VCLT have entered regarding Article 66. At the end of the day, the careful analysis of both reservations and objections could lead to the conclusion that Article 66 may be seen as supportive of the procedural treaty-based effect of jus cogens,Footnote ⁴⁹ and in the manner that qualitatively differs from DRC v. Rwanda. That case concerned the establishment of jurisdiction on a clean slate; the practice surrounding Article 66 relates to jurisdiction that has already been consensually established by states as part and integral element of a broader treaty framework under the 1969 VCLT. DRC v. Rwanda related to the context where there was no jurisdiction in the first place; Article 66 of the 1969 VCLT relates to situations where jurisdiction is contractually established in the first place, and reservations that are entered to exclude or limit that jurisdiction fall to be assessed for their permissibility.

Moreover, the Phoenix case litigated before the International Centre for Settlement of Investment Disputes (ICSID) tribunal further demonstrates the impact of substantive aspects of jus cogens for consensual jurisdiction of dispute settlement bodies.Footnote ⁵⁰ It was clarified in Phoenix that aspects which jus cogens validly excludes from the definition of investment will also exclude it from arbitration under the ICSID provisions and thus from the jurisdiction of ICSID tribunals.

The same consequential link is revealed by the pattern on which the principle of non ultra petita operates in international litigation. Talmon suggests that:

However, jura novit curia (the court knows the law) is a broad principle and relates to the entirety of substantive law in principle applicable to the case. Given that international litigation is consensual both jurisdiction-wise and procedure-wise, there should be nothing that would curtail the ability of litigating states to base their litigation on some parts of the applicable law and exclude its other parts, and expect the court in question to follow that choice. Litigating states can in principle do that either through jurisdictional arrangements or through submissions during the procedure; the court in question would have to follow that choice even if it would know the entire applicable law, including its elements that have been consensually excluded from litigation. Moreover, the statement by the victim state of the aggression that it will waive its rights to the territory that has been occupied by the aggressor, or will not question the legality of the territorial title thus claimed before any international tribunal, would certainly form part of the law the Court would be obliged to know and apply; unless, of course, the court in question discards such statement on the basis of its invalidity. Consequently, the only case where an international tribunal can interfere with such choice proprio motu is when litigation involves rules and principles that litigating states are prohibited, at the risk of voidness, to override or exclude on a bilateral consensual basis – the rules of jus cogens.Footnote ⁵²