CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? activities in and against Nicaragua. 18 The principles determined in Article 2 of the Charter and defined in the Declaration of Seven Principles as “basic principles of international law” are on equal footing as States are obliged to interpret and apply them in cooperation with one another and to conduct and develop their mutual relations on the basis of strict observance of these principles. There is absolutely no indication that any of these principles, such as the prohibition of the use of armed forces determined in point 4 of Article 2 of the Charter, would exhibit the nature of jus cogens , while the other principles would not. The fundamental principles of international law, which are defined and concretized by the Declaration of Seven Principles, stand on equal footing. They are, however, based on the Charter, and their basic meaning and their jus cogens nature are derived from the Charter. 19 The objection that the Declaration of Seven Principles was adopted as Resolution GA 2625 and as such it is not formally binding on the Member States, thus the principles of international law defined in the Declaration are not jus cogens , is therefore incorrect. It is worth noting that this declaration, which defines, but does not establish these principles as principles of international law (they were to a large extent customary international law long before it was adopted), was adopted unanimously and in a particularly solemn manner, which is a proof of a broad consensus of the international community behind these basic principles of the UN Charter. Conclusion In the legal theory of international law, there are numerous opinions which confirm the position that the principles of the UN Charter are jus cogens . The reason for this also lies in the Charter’s character as the ‘quasi constitution’ of the international community and because its superiority in the legal sense is also confirmed by Article 103, which stipulates that in the event a treaty is inconsistent with the provisions of the Charter, such a treaty does not have any legal effects. Some are of the opinion that the principles of the Charter cannot be jus cogens , given that they are not “rules” but only “principles”. 20 The standpoint of the International Law Commission (ILC), which in 2014 accepted working on a study of jus cogens , will definitely also greatly affect the answer to this question. This study should, in the form of “conclusions”, also provide the answer, inter alia , to this question. However, we can definitely establish that, due to the specific nature and forms of representation 18 Military and paramilitary activities in and against Nicaragua v. US, ICJ 14/1986. 19 R. St. J. MACDONALD, op. cit., p. 277: “This Declaration lists seven principles, most of which are now considered jus cogens ”; in similar vein: RAMCHARAN, B. G.: The Right to Life in International Law , Leiden, 1985, p. 136: “Earlier it was shown, that Articles 1 and 2 [of the Charter, E. P.] are jus cogens ”. 20 E.g. M. POGAČNIK: Imperativne norme občega mednarodnega prava [Peremptory Rules of General International Law] in: M. POGAČNIK and E. PETRIČ: Izbrane teme mednarodnega prava [Selected Topics of International Law], Nova Gorica 2010, p. 116 et seq .


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