CYIL Vol. 7, 2016

ERNEST PETRIČ CYIL 7 ȍ2016Ȏ void. Moreover, a treaty providing that States are not under the obligation to settle disputes by means of peaceful settlement of disputes, or that States are allowed to interfere with the domestic matters of other States and intervene in them with the armed forces, a treaty determining that not all States are sovereign and equal, that not every nation has the right to self-determination, that States are not required to participate in the fulfilment of objectives of the United Nations, and that they are not bound by the principle of the obligation to comply with and fulfil in good faith the obligations they assumed, i.e. the principle of pacta sunt servanda , which is in fact the basis of the entire legal order, not only the international one, would also be void. 17 This does not entail that there are no other norms and principles in international law that constitute jus cogens . The International Law Commission (ILC) and the States participants in the Vienna Conference did not, for obvious reasons, choose to determine, in concreto , and submit at least an indicative list of norms and principles of jus cogens . They left it to the participants in international law, particularly to international courts and arbitral tribunals to determine, in concreto , whether a certain norm or principle is jus cogens . This is understandable, for if jus cogens protects fundamental values of the international community, which are a reflection of the level of civilizational development of human society (content) and as such they are agreed on by a broad consensus of the subjects of international community (consensus), not only by a consensus of States, then the norms and principles of jus cogens are a dynamic legal category which is not established only by the practice of States, or hypothetically even by concluding a treaty that would determine which norms and principles of international law are jus cogens . There is simply no legislature to determine what jus cogens in international law is and what it is not! There are undoubtedly norms and principles in various areas of international law that satisfy the jus cogens criterion, e.g. the prohibition of torture, the prohibition of racial and other discrimination in the sphere of human rights, the prohibition of genocide, the prohibition of the crime of apartheid, prohibition of crimes against humanity, the principle of the freedom of the seas in the law of the sea, the polluter pays principle in international environmental law, and others. If at any time in the international case law a question was raised in concreto whether the principles of the UN Charter are jus cogens , the answer was affirmative in the majority of cases. The principle of the prohibition of the use of armed force in international relations was specifically mentioned already in the International Law Commission (ILC), when discussing Article 53 of the VCLT (point 4 of Article 2 of the Charter) as an example of jus cogens , as was in particular confirmed also by the International Court of Justice in the case concerning military and paramilitary

17 Similarly K. HOSSAIN, op. cit., p. 95: “As a result these main principles gain the status of peremptory norms in nature from which derogation is never permitted […].”


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