Imunidade de jurisdição do Estado soberano e a (im)possibilidade de responsabilização cível dos Estados por violação de normas jus cogens segundo a jurisprudência do Brasil, Itália, Estados Unidos e Corte Internacional de Justiça de 2011 a 2022

Abstract

The concept of international society of States has changed throughout history from one whose obligations rested solely on State’s own wills to one that is ruled by the will of the community of states taken as a whole, with a minimum standard of rights and guarantees which cannot be breached. Nonetheless, States are still considered equally sovereign beings, entitled not be subjected to one another, but only to the community of states as a whole or to those whom it may allow to do so, enjoying therefore jurisdictional immunity before foreign courts. The balance of those two opposing realities is struck whenever the violation of jus cogens norms, that compose that minimum standard, affects foreign individuals, to whom international mechanisms are not available at the present time, but only the rule of national courts. It is asked therefore whether the cogent force and peremptory status of those jus cogens norms are per si sufficient to deny jurisdictional immunities to a foreign State before national courts in order to allow the victims of those breaches to seek civil redress for the damages and injuries suffered. This dissertation aims to answer that question by studying the reasoning of national courts of Brazil, Italy, United States of America and of the International Court of Justice from 2011 to 2022, having for background the evolution of the theory of the jurisdictional immunity of states and of jus cogens norms throughout the years. This analysis will therefore conclude that by the time being the violation of jus cogens norms is not per si a sufficient reason to deny immunity to foreign States in civil redress action having individuals as plaintiffs, it is not a blanket exception to the rule of jurisdictional immunities of the foreign State.