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CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
UN and its Charter, we must ask a question regarding the free will of States in the
case of potential amendments to the Charter, particularly its fundamental principles
determined in Articles 1 and 2 of the Charter. Irrespective of its quasi-constitutional
features, the Charter is formally a multilateral treaty. It has been concluded by States
and may thus also be modified by them, in accordance with a complex procedure
determined by the Charter itself. Although we can claim that today the principles
of the Charter, in particular, are considered to be customary international law, this
does not entail that UN Member States could not modify it, including its Articles 1
and 2, by a necessary majority (simply put, two thirds of Member States, including
the five permanent members), and, for example, abrogate or limit it or even adopt
an amendment permitting the use of armed force. It is hypothetically possible for
such an amendment to Paragraph 4 of Article 2 of the Charter to derogate (e.g.
in relation to the fight against international terrorism) from the prohibition of the
threat or use of armed force, as contained in Paragraph 4 of Article 2 of the Charter.
Considering today’s general social awareness of the unacceptability and unlawfulness
of war, considering the genesis of such prohibition in the Charter,
5
via the League
of Nations, the Kellogg-Briand Pact, numerous declarations and resolution adopted
within the UN itself, other international instruments, case law of the ICJ and other
international courts and tribunals, national courts and practice of the States based
on this provision of the Charter, and considering the practically unanimous opinion
of the legal theory, it would be absurd – although formally possible – to abrogate or
amend this provision of the Charter in such a manner that the prohibition contained
therein would be hollowed out. If this principle of the Charter (its Paragraph 4 of
Article 2) is
jus cogens
– and the same would logically apply to other principles of the
Charter – States are not allowed to derogate from or hollow out this fundamental
principle – i.e. the prohibition of the threat or use of armed force – by concluding
a new treaty. Treaties that are contrary to
jus cogens
are void, as determined by
Article 53 of the VCLT! The principles of the Charter are thus “untouchable” in the
sense of Article 53 of the VCLT if they are
jus cogens
.
Jus cogens
in international law
We will return to the issue of fundamental principles of the Charter and their
jus cogens
nature later, since this is the central question of the present debate. But
before that, we need to answer a few questions related to the concept of
jus cogens
du concept de
jus cogens
, in: 113 (4)
Revue Générale de Droit International Public
837 (2009); by the
same author,
Theorie du jus cogens international
, Paris 2001; A. HAMEED,
Unravelling the
Mystery of
Jus Cogens
in International Law, in: B. Y. I. L, 2014, vol. 84, no. 1, pp. 52-102.
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On the genesis of this prohibition in the Charter of the UN see for example: A. A. C. TRINDADE,
The Primacy of International Law over Force, in: Promoting Justice, Human Rights and Conflict Resolution
through International Law
, ed. M. Kohen, Leiden 2007.