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void. Moreover, a treaty providing that States are not under the obligation to settle
disputes by means of peaceful settlement of disputes, or that States are allowed to
interfere with the domestic matters of other States and intervene in them with the
armed forces, a treaty determining that not all States are sovereign and equal, that
not every nation has the right to self-determination, that States are not required to
participate in the fulfilment of objectives of the United Nations, and that they are not
bound by the principle of the obligation to comply with and fulfil in good faith the
obligations they assumed, i.e. the principle of
pacta sunt servanda
, which is in fact the
basis of the entire legal order, not only the international one, would also be void.
17
This does not entail that there are no other norms and principles in international
law that constitute
jus cogens
. The International Law Commission (ILC) and the
States participants in the Vienna Conference did not, for obvious reasons, choose to
determine,
in concreto
, and submit at least an indicative list of norms and principles
of
jus cogens
. They left it to the participants in international law, particularly to
international courts and arbitral tribunals to determine,
in concreto
, whether
a certain norm or principle is
jus cogens
. This is understandable, for if
jus cogens
protects fundamental values of the international community, which are a reflection
of the level of civilizational development of human society (content) and as such
they are agreed on by a broad consensus of the subjects of international community
(consensus), not only by a consensus of States, then the norms and principles of
jus
cogens
are a dynamic legal category which is not established only by the practice of
States, or hypothetically even by concluding a treaty that would determine which
norms and principles of international law are
jus cogens
. There is simply no legislature
to determine what
jus cogens
in international law is and what it is not! There are
undoubtedly norms and principles in various areas of international law that satisfy
the
jus cogens
criterion, e.g. the prohibition of torture, the prohibition of racial and
other discrimination in the sphere of human rights, the prohibition of genocide, the
prohibition of the crime of apartheid, prohibition of crimes against humanity, the
principle of the freedom of the seas in the law of the sea, the polluter pays principle
in international environmental law, and others.
If at any time in the international case law a question was raised
in concreto
whether the principles of the UN Charter are
jus cogens
, the answer was affirmative
in the majority of cases. The principle of the prohibition of the use of armed force in
international relations was specifically mentioned already in the International Law
Commission (ILC), when discussing Article 53 of the VCLT (point 4 of Article 2
of the Charter) as an example of
jus cogens
, as was in particular confirmed also by
the International Court of Justice in the case concerning military and paramilitary
17
Similarly K. HOSSAIN, op. cit., p. 95: “As a result these main principles gain the status of peremptory
norms in nature from which derogation is never permitted […].”