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CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
of the existence and coexistence in the modern international community, and that
aggression is a crime under international law. In all instances where armed force was
used in relations between States after the year 1945, there were attempts to consider
and legally justify them as admissible exceptions to that principle, e.g. as self-defence
in accordance with Article 51 of the Charter; or as the application of the principles
determined in Chapter VII of the UN Charter. Numerous international documents,
which I do not need to list here, including the Helsinki Declaration of 1975, validate
this principle of the UN Charter and prove that there exists a broad consensus within
the international community, States, and other subjects constituting the international
community regarding the Charter principle of the prohibition of the use of armed
force in international relations, as it is defined in the Declaration of Seven Principles.
Similar considerations apply to other principles defined in Article 2 of the Charter,
i.e. the principle of a peaceful settlement of international disputes, the principle of
non-intervention in domestic affairs of any State, and in this context particularly
the principle prohibiting armed intervention, the principle of the right of peoples
to self-determination,
16
the principle of the obligation of international cooperation,
the principle of the sovereign equality of States, and the principle of the obligation
to fulfil in good faith the obligations assumed by them. There is no doubt about the
obligation to comply with these principles of international law, and in our modern
international community there cannot be any. There exists a broad consensus about
them and their nature as foundations of the modern international legal order, such as
defined above as a condition for
jus cogens
.
These “fundamental” principles of the UN Charter protect the values on which
the modern international community and, we could even say, human society and its
existence are based. International peace, protection from war and other uses of armed
forces, peaceful settlement of international disputes, sovereign equality of States,
non-intervention in the domestic matters of any State, and the prohibition of armed
intervention, the right of all nations to decide freely on their destiny and not to be
under foreign domination, international cooperation and the compliance with and
fulfilment of obligations assumed by them are fundamental values of our time. These
are the fundamental values
protected
by the principles of the Charter. Besides the broad
consensus (consensus part) of the international community, the value aspect (content
part) also exists, as this is a condition for a norm or principle of international law to
be
jus cogens
, that is to say, the rule or principle of law that States cannot arbitrarily
derogate from. On the contrary, a treaty that would, for instance, allow for the use of
armed force against another State in international relations, outside the scope of the
principle referred to in point 4 of Article 2 of the Charter and as further specified in
the Declaration of Seven Principles, would be, according to Article 53 of the VCLT,
16
On the right to self-deteminatiom as
jus cogens
see E. PETRIČ,
Pravica narodov do samoodločbe
[The
Right of Peoples to Self-determination], Maribor 1984, p. 64.