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9
CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
Article or in the
travaux preparatoires
, in subsequent case law, theory, and practice
of States. It may be claimed, however, that considering
jus cogens
to be a separate,
new formal source of international law would be stretching it too far.
9
Jus cogens
is
to be found in treaties, customary international law, and general legal principles.
Jus cogens
can be detected, identified in these formal sources of international law,
which are recognised as sources by all States. At the same time it is nevertheless
obvious that the norms and principles of
jus cogens
are not the same as mere treaties
or customary international law, which are both an expression of the will of States
formed either directly (treaties) or indirectly, i.e. by actual conduct accompanied
by
opinio juris
(customary international law). If
jus cogens
was just like a treaty or
customary international law, which are both expressions of the will of States, it
would be unacceptable, absurd (
contradictio in adjecto
) to claim that the States,
which established
jus cogens
by their own free will, by concluding a treaty, cannot
modify it with a new, different treaty. There is thus some logic in claiming that
jus
cogens
can, however, be identified only through formal sources of international law,
since the principles of
jus cogens
are not just suspended in the air but are present in
the sources of international law. However, ius cogens entail norms and principles
with a special legal character, special “quality” which is not just an expression of the
will of States. This special “quality” of
jus cogens
, which is recognised by States in
treaties and through their actual conduct (customary law), reflects the fact that
jus
cogens
reflects and protects the fundamental values of the human society that has
achieved a certain level of civilizational development. When they are adopted and
implemented as such, as
jus cogens
, these norms and principles step out of reach of
the sheer will of States and their practice. They are no longer treaties or customary
international law or general legal principles in the sense of Article 38 of the Statute of
the ICJ. They are
jus cogens
, which has a special nature and significance attributed to
it by States – they cannot modify them by their own free will like they can the rest of
international law – because they reflect and protect fundamental values of the current
international community.
10
Article 53 of the VCLT refers to the norms that reflect the “accept[ance] and
recogni[tion of ] the international community of States”. It is worth noting that
already at the time of the drafting of the Convention on the Law of Treaties between
States and International Organizations or between International Organizations
and later, it was subject to much debate that
jus cogens
does not apply only to an
“international community of States” as such, as a modern international community
9
For more on this topic see K. HOSSAIN, The Concept of
Jus Cogens
and the Obligation Under the UN
Charter, in:
Santa Clara Journal of International Law
, vol. 3/2005, p. 79 id; whereas C. MIK, op. cit.,
p. 53, believes that “peremptory norms cannot be based on traditional sources of international law”.
10
C. MIK, op. cit., p. 92, stresses in particular that the norms of
jus cogens
are the “norms which protect
universally recognized values connected with the existence of state and its nations as well as basic
human values, the protection of which are in the interest of the world community”.