CYIL vol. 7 (2016)

ERNEST PETRIČ

CYIL 7 ȍ2016Ȏ

a broad international consensus. Or vice versa, it is difficult to imagine

jus cogens

be a norm or principle of international law otherwise enjoying a broad consensus of

States but regulating one of the less important issues which in a modern globalized

world need to be legally regulated at an international level.

UN Charter and

jus cogens

Having described all of the above, it is worth asking a question highlighted

already in the title of this paper, namely “Do the principles of the UN Charter

fall within the scope of

jus cogens

of international law?” These are the principles

referred to in Article 2 of the UN Charter, which are laid down in more detail in the

unanimously adopted “Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States in accordance with the Charter of

the United Nations” (1970) (the so-called Declaration of Seven Principles).

If these

principles of the Charter are

jus cogens

, then any possible agreement between States

or any possible customary international rule which is contrary to these principles is

void as a consequence. Deriving from what was said above, we need to answer the

following questions in particular to be able to assess whether the principles determined

by Article 2 of the Charter and by the “Declaration of Seven Principles” are

jus

cogens

: Is each of these principles supported by a broad consensus of the international

community, which is reflected in the practice of States, in international and national

case law,

in legal theory, ultimately also in public opinion, we could say in the

social consciousness of our era? Do these principles protect the fundamental values

which underlie the international community today and which are the expression

of the current level of civilizational development? And does the fact that it is about

“principles” of the Charter and not the “rules” affect their possible

jus cogens

nature.

The fact is that all States, including those few that are not members of the UN

and whose sovereign statehood is more or less problematic (e.g. Kosovo, Taiwan,

Palestine), recognise the binding character of the principles of the UNCharter in their

international as well as national practice. Most of these seven principles are clearly

the expression of the development of the international community and international

life. The roots of the principle on the prohibition of the use of armed force thus go

back to the period of the League of Nations, the Kellogg-Briand Pact, the aftermath

of the cataclysm of the First and Second World Wars.

In our era, which is defined

by the existence of the United Nations, we have no serious doubts about the fact that

in the practice of States, in the international and national case law, in international

and regional organisations, or in the legal theory, the prohibition of the use of armed

force, within the limits as defined by the UN Charter, is one of the foundations

Resolution adopted by the General Assembly, 2625 (XXV), 24 October 1970.

This “practice” also includes verbal practice.

For more information see K. HOSSAIN,

op. cit

., p. 89.