CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? the will of States at any given time. Could these States modify the current jus cogens , by a broad consensus that would entail more than a mere consensus of States? If the answer is yes, jus cogens , ultima ratio , nevertheless remains in its essence either a part of treaty law or customary international law, which States can derogate from or modify provided that appropriate consensus has been reached. However, due to the fact that jus cogens reflects and protects fundamental values at a certain level of the social development of civilization, we need to consider an element of value in defining jus cogens and its nature, its special “quality”, i.e. an assessment of the value or the values that the norm or principle of jus cogens expresses or contains and protects. When defining the nature of jus cogens , it is thus also essential to establish which value it contains and protects, thus the value aspect of the principles and norms of jus cogens is also important. 12 Jus cogens cannot entail – even if such was agreed by a consensus of States – rules on the conduct of States in matters that are less important in terms of value, all of which is regulated by multiple treaties and rules of customary international law. Norms and principles such as the prohibition of the use of armed force in the relations between States, prohibition of racial discrimination, prohibition of genocide, prohibition of torture, and the like, enjoy the status of jus cogens not only because of the breadth of consensus, but also because they express and protect the values that are immanent, essential for the current level of social development and the development of international community. Without these values, the international community, but also humanity and our civilization would not be what they are. Jus cogens thus entails norms and principles of international law that States cannot fail to observe when concluding treaties even in the sense of Article 53 of the VCLT, which is itself just a treaty and in the strict sense applies only to the parties thereto, and consequently they cannot derogate the current jus cogens , due to the fundamental values that jus cogens contains and protects. A broad consensus on which jus cogens , its norms and principles are based is therefore important and expected. In determining whether a certain norm or principle of international law constitutes jus cogens – this can be specifically defined by a treaty, by customary international law or by the general principles of law – a review of how fundamental a value contained in or protected by a norm or principle is and of how consistent it is with the spirit of time, with the level of social development attained, and what the consensus behind it is, is thus at the forefront. Let me add that when the most fundamental values of international community reflecting the level of social development are at issue, the consensus regarding such norm is, as a general rule, broad and strong, and reaches beyond the scope of only the will of States. A concrete principle or norm of jus cogens thus, as a general rule, involves “consensus plus content”. It is difficult to imagine a jus cogens norm or principle of international law not to meet both requirements, not to protect an important value of the contemporary international community without 12 Similarly A. HAMEED, op. cit., p. 98: “The suggestion is that jus cogens status should be understood as being dependent on the moral beliefs […].”

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