CYIL vol. 13 (2022)

PAVEL ŠTURMA CYIL 13 ȍ2022Ȏ where the treaty, at time of conclusion, is in conflict with a peremptory norm; in such cases the treaty becomes void as a whole. By contrast, paragraph 2 recognizes the possibility of separation in cases where a treaty becomes invalid because of the emergence of a new norm of jus cogens . Similarly, conclusion 12 distinguishes the consequences of invalidity and termination of treaties conflicting with a peremptory norm of general international law. Parties to a treaty void at the time of the treaty’s conclusion have a legal obligation to eliminate as far as possible the consequence of any act performed in reliance on the treaty. However, the termination of a treaty as a result of the emergence of a new peremptory norm does not affect any right, obligation, or legal situation of the parties created prior to the termination of the treaty, provided that their maintenance is not in itself in conflict with the new peremptory norm. 14 Conclusion 13 confirms the absence of effects of reservations to treaties on peremptory norms of general international law. 15 The following conclusions deal with the legal consequences of jus cogens other than in the law of treaties. Conclusion 14 addresses the consequences of peremptory norms of general international law for customary international law. A customary rule does not come into existence if it would conflict with an existing peremptory norm (para. 1). A rule of customary international law not of a peremptory character ceases to exist if and to the extent that it conflicts with a new peremptory norm (para. 2). 16 Similarly, when it comes to obligations created by a unilateral act of a State (conclusion 15), an act that would be in conflict with a peremptory norm does not create such an obligation. An obligation created by a unilateral act of a State ceases to exist if and to the extent that it conflicts with a new peremptory norm. 17 In the same vein, conclusion 16 provides that “a resolution, decision or other act of an international organization that would otherwise have binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm of general international law ( jus cogens ).” 18 The next few draft conclusions address legal consequences of jus cogens norms related to the rules of State responsibility. Conclusion 17 deals with obligations erga omnes . Paragraph 1 provides that peremptory norms of general international law give rise to obligations owed to the international community as a whole. Paragraph 2 states that “any State is entitled to invoke the responsibility of another State for a breach of a peremptory norm of general international law ( jus cogens )”. 19 Conclusion 18 is based on Article 26 of the 2001 Articles on responsibility of States for internationally wrongful acts (ARSIWA). It confirms that no circumstance precluding wrongfulness under the rules of State responsibility may be invoked with regard to any act of a State that is not in conformity with an obligation arising under a peremptory norm of general international law. 20

14 Ibid., p. 52. 15 Ibid., p. 54. 16 Ibid., pp. 55–56. 17 Ibid., p. 60. 18 Ibid., p. 62. 19 Ibid., p. 64 ff. 20 Ibid., p. 69.

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