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1 Compliance with peremptory norms as a circumstance precluding wrongfulness 1 Compliance with peremptory norms as a circumstance precluding wrongfulness
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2 Compliance with peremptory norms prevailing over circumstances precluding wrongfulness 2 Compliance with peremptory norms prevailing over circumstances precluding wrongfulness
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Further reading Further reading
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33.3 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Self-Defence
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35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law
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33.2 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Compliance with Peremptory Norms
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Published:May 2010
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Peremptory norms of international law—jus cogens—incorporate the fundamental values of the international community. A peremptory norm of general international law is a mandatory norm, one from which no derogation is permitted. They have two main functions: on the one hand, the protection of interests that are superior to the States’ individual interests—the interests of the international community and the international order; on the other hand, the protection of the State against its own weaknesses or against the power of some of its partners, in particular within the framework of international negotiations.
The sanctioning of jus cogens in positive law through the Vienna Convention on the Law of Treaties1 has established a hierarchy of norms of international law, which led the ILC to include an article on jus cogens in the draft articles on State responsibility in 1999.2
The relationship between the concept of jus cogens and the law of State responsibility was examined by the ILC for the first time in 1976. The concept appears to be relevant to three types of scenarios. First, it is relevant to cases where the appearance of a new peremptory norm affects the breaches of obligations which resulted from a previously existing norm (which is inconsistent with the new norm). Second, the breach of an obligation imposed by a peremptory norm may have more serious consequences than those resulting from an ordinary breach. Third, the conflict between primary obligations, one of which results from a peremptory norm, may affect the implementation of circumstances precluding wrongfulness.
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