CYIL Vol. 4, 2013

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.