CYIL Vol. 7, 2016

ERNEST PETRIČ CYIL 7 ȍ2016Ȏ a broad international consensus. Or vice versa, it is difficult to imagine jus cogens to be a norm or principle of international law otherwise enjoying a broad consensus of States but regulating one of the less important issues which in a modern globalized world need to be legally regulated at an international level. UN Charter and jus cogens Having described all of the above, it is worth asking a question highlighted already in the title of this paper, namely “Do the principles of the UN Charter fall within the scope of jus cogens of international law?” These are the principles referred to in Article 2 of the UN Charter, which are laid down in more detail in the unanimously adopted “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (1970) (the so-called Declaration of Seven Principles). 13 If these principles of the Charter are jus cogens , then any possible agreement between States or any possible customary international rule which is contrary to these principles is void as a consequence. Deriving from what was said above, we need to answer the following questions in particular to be able to assess whether the principles determined by Article 2 of the Charter and by the “Declaration of Seven Principles” are jus cogens : Is each of these principles supported by a broad consensus of the international community, which is reflected in the practice of States, in international and national case law, 14 in legal theory, ultimately also in public opinion, we could say in the social consciousness of our era? Do these principles protect the fundamental values which underlie the international community today and which are the expression of the current level of civilizational development? And does the fact that it is about “principles” of the Charter and not the “rules” affect their possible jus cogens nature. The fact is that all States, including those few that are not members of the UN and whose sovereign statehood is more or less problematic (e.g. Kosovo, Taiwan, Palestine), recognise the binding character of the principles of the UNCharter in their international as well as national practice. Most of these seven principles are clearly the expression of the development of the international community and international life. The roots of the principle on the prohibition of the use of armed force thus go back to the period of the League of Nations, the Kellogg-Briand Pact, the aftermath of the cataclysm of the First and Second World Wars. 15 In our era, which is defined by the existence of the United Nations, we have no serious doubts about the fact that in the practice of States, in the international and national case law, in international and regional organisations, or in the legal theory, the prohibition of the use of armed force, within the limits as defined by the UN Charter, is one of the foundations

13 Resolution adopted by the General Assembly, 2625 (XXV), 24 October 1970. 14 This “practice” also includes verbal practice. 15 For more information see K. HOSSAIN, op. cit ., p. 89.


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