Study On The Jus Cogens Exception To The State Immunity

This article seeks to analyze the jus cogens exception of state immunity. Because the conflict between state immunity and jus cogens is a relative new problem, studies on this issue is poor. And the domestic scholars just began to research this issue. So this article makes an innovation on the subject of the study. This article uses the methods of case study and normative research. This article has five parts:Part one briefly introduces the basic theory of state immunity and jus cogens. The introduction of the state immunity defines the conception and scope in case of jus cogens violations.Part two outlines the national statutes and the international treaties on state immunity. In the light of national statutes, it lists the related rules of exception to state immunity in the United States "Foreign Sovereign Immunities Act" and "The State Immunity Act of the United Kingdom". In the light of multilateral treaties, it lists the related rules of "United Nations Convention on Jurisdictional Immunities of States and their Property" and "European Convention on State Immunity1972".Part three discusses the relevant national and international cases involving the state immunity and jus cogens. Like the Italy v Germany case, the Al-Adsani case, the Ferrini case, the Jones case and the Bouzari case. It finds that national and international courts trend to be sympathy with state immunity in case of jus cogens violations.Part four examines the argument in favor of a jus cogens exception to the doctrine of state immunity. They are the normative hierarchy argument, the complicity argument, the qualification argument, the implied waiver argument and the universal argument. All of them have defect.Part five discusses the relationship between China and state immunity.