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CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
entire international system of that historic period are based. In the international
community such fundamental legal principles are, naturally, an expression of the will
of States. The will of States is a factual sociological source of the international law,
whether such entails treaties, customary international law or the so-called general
legal principles, although in the case of the latter the special issue is to what extent
these principles are the expression of a direct will of States. Since the will of States
ultimately reflects the level of social development, it can be claimed that, in every
historical epoch, the current level of social development and the values of civilization
predetermine international law as an expression of the will of States. Hence, the
respect for and protection of the fundamental human rights, the prohibition of
discrimination, the right of peoples to self-determination, international humanitarian
law, numerous limitations of national sovereignty, etc. – in short, everything that
characterizes the modern international legal order – is espoused only in our era, when
the social conditions for such were met. The current level of development is reflected
in the will of States and consequently in the formal sources of international law
determined by the Statute of the International Court of Justice in Hague (Article 38).
If international law is really to be “law” (this also applies to national law), it must
reflect,
grosso modo
, the level of social development, the level of the society’s needs
when regulating the relations within the international community; it must ensure
the security, harmony, development. Every legal order, including international legal
order, which became universal in the past century due to internationalization of
the way of life, and today regulating virtually all aspects of social life, will have to
undergo changes unless it reflects the level of social development and the values of
civilization. If the discrepancy is permanent and strained, it is doomed to a more
or less catastrophic failure. The generations that have lived through the times of
revolutions, “transitions”, also “the fall of the Berlin Wall” (at the international level
this entailed a break-up of the so-called bipolar balance of power or the bipolar
international system) are well aware of that.
Historia magistra vitae
!
The issue that also arises in international law like in national law, mutatis
mutandis, is whether the legal principles and standards determined in a certain
period marked by certain social development and values of civilization are eminent
in that particular period. This is exactly why those who implement law “
in concreto
”
(i.e. a constitutional body and a legislature in the case of a State, States in the case of
the international community) cannot be able to abrogate, amend or ignore them at
their own discretion. At the present stage of development of the civilized world and
values, no legislature can “enact” racial discrimination, for instance, let alone slavery,
serfdom, or inequality and discrimination of women, acts of genocide, partiality
of courts, etc. Even if this was, for example, established by law or treaty or even
by a constitution, in terms of content, such otherwise formal enactment could not