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15
CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
activities in and against Nicaragua.
18
The principles determined in Article 2 of the
Charter and defined in the Declaration of Seven Principles as “basic principles of
international law” are on equal footing as States are obliged to interpret and apply
them in cooperation with one another and to conduct and develop their mutual
relations on the basis of strict observance of these principles. There is absolutely no
indication that any of these principles, such as the prohibition of the use of armed
forces determined in point 4 of Article 2 of the Charter, would exhibit the nature
of
jus cogens
, while the other principles would not. The fundamental principles of
international law, which are defined and concretized by the Declaration of Seven
Principles, stand on equal footing. They are, however, based on the Charter, and
their basic meaning and their
jus cogens
nature are derived from the Charter.
19
The
objection that the Declaration of Seven Principles was adopted as Resolution GA
2625 and as such it is not formally binding on the Member States, thus the principles
of international law defined in the Declaration are not
jus cogens
, is therefore
incorrect. It is worth noting that this declaration, which defines, but does not
establish these principles as principles of international law (they were to a large extent
customary international law long before it was adopted), was adopted unanimously
and in a particularly solemn manner, which is a proof of a broad consensus of the
international community behind these basic principles of the UN Charter.
Conclusion
In the legal theory of international law, there are numerous opinions which
confirm the position that the principles of the UN Charter are
jus cogens
. The
reason for this also lies in the Charter’s character as the ‘quasi constitution’ of
the international community and because its superiority in the legal sense is also
confirmed by Article 103, which stipulates that in the event a treaty is inconsistent
with the provisions of the Charter, such a treaty does not have any legal effects. Some
are of the opinion that the principles of the Charter cannot be
jus cogens
, given that
they are not “rules” but only “principles”.
20
The standpoint of the International Law
Commission (ILC), which in 2014 accepted working on a study of
jus cogens
, will
definitely also greatly affect the answer to this question. This study should, in the
form of “conclusions”, also provide the answer,
inter alia
, to this question. However,
we can definitely establish that, due to the specific nature and forms of representation
18
Military and paramilitary activities in and against Nicaragua v. US, ICJ 14/1986.
19
R. St. J. MACDONALD, op. cit., p. 277: “This Declaration lists seven principles, most of which are
now considered
jus cogens
”; in similar vein: RAMCHARAN, B. G.:
The Right to Life in International
Law
, Leiden, 1985, p. 136: “Earlier it was shown, that Articles 1 and 2 [of the Charter, E. P.] are
jus
cogens
”.
20
E.g. M. POGAČNIK: Imperativne norme občega mednarodnega prava [Peremptory Rules of General
International Law] in: M. POGAČNIK and E. PETRIČ:
Izbrane teme mednarodnega prava
[Selected
Topics of International Law], Nova Gorica 2010, p. 116
et seq
.