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CYIL 7 ȍ2016Ȏ
PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ
JUS COGENS
?
relations on the basis of the full respect for these principles. It would be unnecessary
to make any conclusions in advance regarding the view of the International Law
Commission (ILC) on the possible
jus cogens
nature of the basic principles of the
UN Charter. However, one could ask the following question: If these basic principles
of the UN Charter, agreed by general consensus of the international community
and sustained by the awareness that they are basic principles on which the modern
international order is based and which protect the fundamental values of such order,
are not
jus cogens
, what would then
jus cogens
be in international law?
As was noted already in the introduction, the modern international order,
established by the UN Charter, has remained fundamentally unchanged for about
three generations. The fundamental legal principles of this order have remained in
force, notably through the practice of States and international case law, and even
legal theory has only specified them in more detail. Historical developments were
possible precisely on the basis of these principles, for example the promotion of
human dignity and the implementation of fundamental human rights, as well as
international jurisdiction and everything that was impacted by this fundamental
shift of the human rights issue from the sphere of sovereignty of States towards
international jurisdiction. The process of decolonisation and the dissolution of the
forced post-colonial state formations were possible on the basis of the right of nations
to self-determination. Huge shifts took place within the sphere of
jus in bello
and in
humanitarian law, including the establishment of international jurisdiction over the
most serious crimes. A joint responsibility and obligation to cooperate with other
States facing the challenges of a modern globalised world, from the differences in
development and consequently poverty to the imminent threat of climate changes
and their impact, have been increasingly recognised. Humanity was safe from the
cataclysm of the third world conflict. There is no doubt that the Charter and its
basic principles are the international law foundation of these historic changes.
Not recognising the
jus cogens
nature of these basic principles of the Charter in
international practice and legal theory would entail a unique, positivist denial of
the foundations of the modern legal order and its values and of the importance
of these basic principles, and, ultimately, of the UN and its functioning, for the
development of human society, especially international relations since the end of the
Second World War until today.