CYIL vol. 14 (2023)

PETRA RUFFER LUSTIGOVÁ CYIL 14 (2023) of Article 53 VCLT any treaty will be void if it conflicts with a peremptory norm of general international law. 44 Peremptory norms reflect the changing requirements of the international community. The most common bases for peremptory norms to evolve from are international customary law, as well as treaty provisions and general principles of law. 45 International courts and tribunals (including the International Court of Justice) have often referred to the hierarchical superiority and universal character of peremptory norms of general international law. 46 3.3 Position of the UN Charter in the framework of international law The Charter of the United Nations is by its nature a multilateral treaty concluded by, and originating from, the initiative of sovereign states. It is a treaty constituting a new subject of international law, the Organization of the United Nations, which the signatory states created for the purpose of fulfilling their common goals, particularly the maintenance of international peace and security. Despite its paramount importance as a constituent document of universal organisation, the Charter is a subject to regular treaty interpretation according to customary international law. 47 Notwithstanding, the UN Charter should be regarded not as just any ordinary treaty, for it itself constitutes, the principle of the superiority of Charter obligations over other international agreements, “[i]n other words, it reflects the constitutional character of the Charter ”. 48 Particularly for this reason, “ it has been asserted that the Charter should be regarded less as a treaty, and more like a constitution… From a contextual standpoint, this line of analysis makes considerable sense because the Charter is [indeed] the constitution of an organization ”. 49 Equally, the Charter is viewed as “ a treaty of a constitutional character ” 50 not only by scholars, but also by the International Court of Justice (ICJ), 51 and as such is acknowledged “ to be the ’constitution’ of the international community accepted by the great majority of states ”. 52 44 Shaw, supra note 22 , p. 98. 45 Supra note 41 , Conclusion 5. Also, Shaw, supra note 22 , p. 97: “It is also clear that only rule based on custom or treaties may form the foundations of ius cogens norms”. 46 Supra note 41 , See the detailed summary in Commentary to Conclusion 3, pp. 150–157, paras 4, 5, 9, 10, 13, and 14. 47 VÁLEK, P. Is Unilateral Humanitarian Intervention Compatible with the U.N. Charter?, 26 Michigan Journal of International Law , summer 2005, p. 1232. 48 Gowlland-Debbas, supra note 2 , p. 88. 49 QUIGLEY, J. The “Privatization” of Security Council Enforcement Action: A Threat to Multilateralism, 17 Michigan Journal of Int. Law , winter 1996, p. 275. 50 International Status of South-West Africa (Advisory Opinion of 11 July 1950), Dissenting Opinion of Judge de Visscher, ICJ Reports (1950), p. 187. 51 “[T]he ICJ has taken an expansive view, leaning in the direction of interpreting the Charter as a constitution. In the Reparation case , it made an important statement of principle when it found that the United Nations was competent to take action not specifically indicated in the U.N. Charter, if the action was necessary to carry out Charter-provided functions. The United Nations, the Court said, enjoyed legal personality”. JOHN QUIGLEY, The United Nations Security Council: Promethean Protector or Helpless Hostage?, 35 Texas International Law Journal, 2000, p. 166. 52 BERNHARD, R. On Article 103; in: Simma (ed.), supra note 7 , p. 1119, MN 6. Elsewhere in The Commentary other authors also recognize this quality of the UN Charter. “[C]onstitution for the universal society” (Ress, p. 42, MN 34). “[Q]ualifies charters as ’constitutions’” (Ress, p. 27, MN 1). “[T]he Charter is to be recognized as the ’constitution’ of the international community” (Bernhard, p. 1125, MN 25) – all in: in: Simma (ed.), supra note 7.

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