State responsibility tory norm becomes void and terminates.410 The question is what implications these provisions may have for the matters dealt with in chapter V. (2) Sir Gerald Fitzmaurice as Special Rapporteur on the Law of Treaties treated this question on the basis of an implied condition of “continued compatibility with international law”, noting that: A treaty obligation the observance of which is incompatible a new rule or prohibition of international law in the nature of jus cogens will justify (and require) non-observance of any treaty obligation involving such incompatibility … The same principle is applicable where circumstances arise subsequent to the conclusion of a treaty, bringing into play an existing rule of international law which was not relevant to the situation as it existed at the time of the conclusion of the treaty.411 The Commission did not, however, propose with any specific articles on this question, apart from articles 53 and 64 themselves. (3) Where there is an apparent conflict between primary obligations, one of which arises for a State directly under a peremptory norm of general international law, it is evident that such an obligation must prevail. The processes of interpretation and application should resolve such questions without any need to resort to the secondary rules of State responsibility. In theory, one might envisage a conflict arising on a subsequent occasion between a treaty obligation, apparently lawful on its face and innocent in its purpose, and a peremptory norm. If such a case were to arise it would be too much to invalidate the treaty as a whole merely because its application in the given case was not foreseen. But in practice such situations seem not to have occurred.412 Even if they were to arise, peremptory norms of general international law generate strong interpretative principles which will resolve all or most apparent conflicts. (4) It is, however, desirable to make it clear that the circumstances precluding wrongfulness in chapter V of Part One do not authorize or excuse any derogation from a peremptory norm of general international law. For example, a State taking countermeasures may not derogate from such a norm: for example, a genocide cannot justify a counter-genocide.413 The plea of necessity likewise cannot excuse the breach of a peremptory norm. It would be possible to incorporate this principle expressly in each of the articles of chapter V, but it is both more economical and more in keeping with the overriding character of this 410 See also article 44, paragraph 5, which provides that in cases falling under article 53, no separation of the provisions of the treaty is permitted. 411 Fourth report on the law of treaties, Yearbook … 1959 (see footnote 307 above), p. 46. See also S. Rosenne, Breach of Treaty (Cambridge, Grotius, 1985), p. 63. 412 For a possible analogy, see the remarks of Judge ad hoc Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 325, at pp. 439–441. ICJ did not address these issues in its order. 413 As ICJ noted in its decision in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, “in no case could one breach of the Convention serve as an excuse for another” (Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 243, at p. 258, para. 35). 85 class of norms to deal with the basic principle separately. Hence, article 26 provides that nothing in chapter V can preclude the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.414 (5) The criteria for identifying peremptory norms of general international law are stringent. Article 53 of the 1969 Vienna Convention requires not merely that the norm in question should meet all the criteria for recognition as a norm of general international law, binding as such, but further that it should be recognized as having a peremptory character by the international community of States as a whole. So far, relatively few peremptory norms have been recognized as such. But various tribunals, national and international, have affirmed the idea of peremptory norms in contexts not limited to the validity of treaties.415 Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.416 (6) In accordance with article 26, circumstances precluding wrongfulness cannot justify or excuse a breach of a State’s obligations under a peremptory rule of general international law. Article 26 does not address the prior issue whether there has been such a breach in any given case. This has particular relevance to certain articles in chapter V. One State cannot dispense another from the obligation to comply with a peremptory norm, e.g. in relation to genocide or torture, whether by treaty or otherwise.417 But in applying some peremptory norms the consent of a particular State may be relevant. For example, a State may validly consent to a foreign military presence on its territory for a lawful purpose. Determining in which circumstances consent has been validly given is again a matter for other rules of international law and not for the secondary rules of State responsibility.418 Article 27. Consequences of invoking a circumstance precluding wrongfulness The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to: (a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists; (b) the question of compensation for any material loss caused by the act in question. 414 For convenience, this limitation is spelled out again in the context of countermeasures in Part Three, chapter II. See article 50 and commentary, paras. (9) and (10). 415 See, e.g., the decisions of the International Tribunal for the Former Yugoslavia in case IT-95-17/1-T, Prosecutor v. Furundzija, judgement of 10 December 1998; ILM, vol. 38, No. 2 (March 1999), p. 317, and of the British House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), ILR, vol. 119. Cf. Legality of the Threat or Use of Nuclear Weapons (footnote 54 above), p. 257, para. 79. 416 Cf. East Timor (footnote 54 above). 417 See paragraph (4) of the commentary to article 45. 418 See paragraphs (4) to (7) of the commentary to article 20.