The First Principle
The international law principle
Those who abuse the rules or norms of international law cannot avail themselves of its privileges. This principle is premised on a view of international law as a body of rules, norms and privileges binding upon all who seek to invoke its benefits. The other alternative -- that it is a body of rules to be used or abused as one wishes inconsistently and without coherence -- makes no sense.
Therefore, as noted by Andrea Bianchi ("Denying State Immunity to Violators of Human Rights", 46 Austrian Journal of Public and International Law (1994), pp. 227-228) and others, it is contrary to logic to deem that the international legal order would extend the cover of such protection to states and leaders who act in marked contrast with the foundations of the same system. To rephrase, those who act in marked contrast to its norms and rules cannot invoke its privileges and benefits.
Privileges include Head of State and Sovereign Immunity, as well as Comity, whereas norms and rules include jus cogens norms and the provisions of international treaty law.
Head of State and Sovereign Immunity doctrines have their roots in principles of comity, the international law principle of independence, equality and dignity of states, a doctrine that clearly benefits all who seek to invoke its protection.
Comity has been defined as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." Hilton v. Guyot, 159 U.S. 113, 164 (1895). "Comity is a discretionary doctrine. It is not a rule of law, but one of practice, convenience and expediency." United Kingdom Mut. Steamship Assurance Ass'n [Bermuda] Ltd. v. Continental Maritime of San Francisco, Inc., 1992 WL 486937, *8 (N.D. Cal. Aug.31, 2002) (quoting Somportex Ltd. v. Philadelphia Chewing Gum Co., 453 F.2d 435, 440 (3d Cir.1971)). As a result of the discretionary nature of the comity doctrine, "the party asserting the applicability of the comity doctrine bears the burden of proof." Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116, 1200 (C.D.Cal.2002).
Norms and rules include jus cogens norm and treaty provisions. Like the principles of Dafa, jus cogens norms (prohibitions against slavery, genocide torture, crimes against humanity) are absolute and not contingent. In many respects they are the legal precursors of the principles of the Fa. As a result, violations of jus cogens norms are of a different order in international law than other violations of international law. As defined in the Vienna Convention on the Law of Treaties [hereinafter Vienna Convention] May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679, a jus cogens norm, also known as a "peremptory norm" of international law, "is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention, art. 53, (cited in Siderman, id. at 714-719). The Restatement third, supra, ? 102 cmt. D.
The non-contingent nature of jus cogens norms is especially well exemplified by the principles underpinning the judgments of the Nuremberg tribunals following World War II. As Steven Fogelson observes in The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL. L. Rev. 833, (cited in Siderman, id., at 715): "[t]he legitimacy of the Nuremberg prosecutions rested not on the consent of the Axis Powers and individual defendants, but on the nature of the acts they committed: acts that the laws of all civilized nations define as criminal."
When invokers of immunity have signed treaties, which prohibit the behavior they seek to shield, immunity similarly is barred. One of the relevant treaties is the Convention on the Prevention and Punishment of the Crime of Genocide, done Dec. 9, 1948, ratified by United States Feb. 23, 1989, 78 U.N.T.S. 277: Article 1. The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article 2 in part provides: [G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; . . .
A second important treaty is the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984), ratified by United States Oct. 21, 1994, 34 I.L.M. 590 (1995). Article 4 ?1 provides: Each State Party shall ensure that all acts of torture are offenses under its criminal law. Article 4 ?1 applies to "all" acts of torture wherever committed. Then Article 5 of the treaty, referring to the above-quoted Article 4, binds the United States to take such measures as may be necessary to establish its jurisdiction over such offenses [the Article 4 offenses] in cases where the alleged offender is present in any territory under its jurisdiction.
Category: Perspective
