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MICHAELA RIŠOVÁ
CYIL 4 ȍ2013Ȏ
or whether a new one will emerge shall depend on the States’ will. This may result
in an acknowledgment of the strict formal separation of substantive and procedural
international norms, which leads either to ‘absolute’ State immunity unaffected by
peremptory norms, or to the recognition that conflict may rise between them, or,
alternatively, to the emergence of a new peremptory norm susceptible to leave State
immunity aside when
jus cogens
rules are at stake. Which of these three paths will
be followed is unclear. An interpretation used by one international court, however
distinguished it might be, does not determine the creation of custom, a role that still
falls to the States.