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CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
the will of States at any given time. Could these States modify the current
jus cogens
,
by a broad consensus that would entail more than a mere consensus of States? If
the answer is yes,
jus cogens
,
ultima ratio
, nevertheless remains in its essence either
a part of treaty law or customary international law, which States can derogate from
or modify provided that appropriate consensus has been reached. However, due to
the fact that
jus cogens
reflects and protects fundamental values at a certain level
of the social development of civilization, we need to consider an element of value
in defining
jus cogens
and its nature, its special “quality”, i.e. an assessment of the
value or the values that the norm or principle of
jus cogens
expresses or contains and
protects. When defining the nature of
jus cogens
, it is thus also essential to establish
which value it contains and protects, thus the value aspect of the principles and
norms of
jus cogens
is also important.
12
Jus cogens
cannot entail – even if such was
agreed by a consensus of States – rules on the conduct of States in matters that are less
important in terms of value, all of which is regulated by multiple treaties and rules of
customary international law. Norms and principles such as the prohibition of the use
of armed force in the relations between States, prohibition of racial discrimination,
prohibition of genocide, prohibition of torture, and the like, enjoy the status of
jus
cogens
not only because of the breadth of consensus, but also because they express
and protect the values that are immanent, essential for the current level of social
development and the development of international community. Without these
values, the international community, but also humanity and our civilization would
not be what they are.
Jus cogens
thus entails norms and principles of international law
that States cannot fail to observe when concluding treaties even in the sense of Article
53 of the VCLT, which is itself just a treaty and in the strict sense applies only to the
parties thereto, and consequently they cannot derogate the current
jus cogens
, due to
the fundamental values that
jus cogens
contains and protects. A broad consensus on
which
jus cogens
, its norms and principles are based is therefore important and expected.
In determining whether a certain norm or principle of international law constitutes
jus cogens
– this can be specifically defined by a treaty, by customary international law
or by the general principles of law – a review of how fundamental a value contained
in or protected by a norm or principle is and of how consistent it is with the spirit of
time, with the level of social development attained, and what the consensus behind
it is, is thus at the forefront. Let me add that when the most fundamental values of
international community reflecting the level of social development are at issue, the
consensus regarding such norm is, as a general rule, broad and strong, and reaches
beyond the scope of only the will of States. A concrete principle or norm of
jus cogens
thus, as a general rule, involves “consensus plus content”. It is difficult to imagine
a
jus cogens
norm or principle of international law not to meet both requirements, not
to protect an important value of the contemporary international community without
12
Similarly A. HAMEED, op. cit., p. 98: “The suggestion is that
jus cogens
status should be understood
as being dependent on the moral beliefs […].”