CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? entire international system of that historic period are based. In the international community such fundamental legal principles are, naturally, an expression of the will of States. The will of States is a factual sociological source of the international law, whether such entails treaties, customary international law or the so-called general legal principles, although in the case of the latter the special issue is to what extent these principles are the expression of a direct will of States. Since the will of States ultimately reflects the level of social development, it can be claimed that, in every historical epoch, the current level of social development and the values of civilization predetermine international law as an expression of the will of States. Hence, the respect for and protection of the fundamental human rights, the prohibition of discrimination, the right of peoples to self-determination, international humanitarian law, numerous limitations of national sovereignty, etc. – in short, everything that characterizes the modern international legal order – is espoused only in our era, when the social conditions for such were met. The current level of development is reflected in the will of States and consequently in the formal sources of international law determined by the Statute of the International Court of Justice in Hague (Article 38). If international law is really to be “law” (this also applies to national law), it must reflect, grosso modo , the level of social development, the level of the society’s needs when regulating the relations within the international community; it must ensure the security, harmony, development. Every legal order, including international legal order, which became universal in the past century due to internationalization of the way of life, and today regulating virtually all aspects of social life, will have to undergo changes unless it reflects the level of social development and the values of civilization. If the discrepancy is permanent and strained, it is doomed to a more or less catastrophic failure. The generations that have lived through the times of revolutions, “transitions”, also “the fall of the Berlin Wall” (at the international level this entailed a break-up of the so-called bipolar balance of power or the bipolar international system) are well aware of that. Historia magistra vitae ! The issue that also arises in international law like in national law, mutatis mutandis, is whether the legal principles and standards determined in a certain period marked by certain social development and values of civilization are eminent in that particular period. This is exactly why those who implement law “ in concreto ” (i.e. a constitutional body and a legislature in the case of a State, States in the case of the international community) cannot be able to abrogate, amend or ignore them at their own discretion. At the present stage of development of the civilized world and values, no legislature can “enact” racial discrimination, for instance, let alone slavery, serfdom, or inequality and discrimination of women, acts of genocide, partiality of courts, etc. Even if this was, for example, established by law or treaty or even by a constitution, in terms of content, such otherwise formal enactment could not

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