CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? relations on the basis of the full respect for these principles. It would be unnecessary to make any conclusions in advance regarding the view of the International Law Commission (ILC) on the possible jus cogens nature of the basic principles of the UN Charter. However, one could ask the following question: If these basic principles of the UN Charter, agreed by general consensus of the international community and sustained by the awareness that they are basic principles on which the modern international order is based and which protect the fundamental values of such order, are not jus cogens , what would then jus cogens be in international law? As was noted already in the introduction, the modern international order, established by the UN Charter, has remained fundamentally unchanged for about three generations. The fundamental legal principles of this order have remained in force, notably through the practice of States and international case law, and even legal theory has only specified them in more detail. Historical developments were possible precisely on the basis of these principles, for example the promotion of human dignity and the implementation of fundamental human rights, as well as international jurisdiction and everything that was impacted by this fundamental shift of the human rights issue from the sphere of sovereignty of States towards international jurisdiction. The process of decolonisation and the dissolution of the forced post-colonial state formations were possible on the basis of the right of nations to self-determination. Huge shifts took place within the sphere of jus in bello and in humanitarian law, including the establishment of international jurisdiction over the most serious crimes. A joint responsibility and obligation to cooperate with other States facing the challenges of a modern globalised world, from the differences in development and consequently poverty to the imminent threat of climate changes and their impact, have been increasingly recognised. Humanity was safe from the cataclysm of the third world conflict. There is no doubt that the Charter and its basic principles are the international law foundation of these historic changes. Not recognising the jus cogens nature of these basic principles of the Charter in international practice and legal theory would entail a unique, positivist denial of the foundations of the modern legal order and its values and of the importance of these basic principles, and, ultimately, of the UN and its functioning, for the development of human society, especially international relations since the end of the Second World War until today.


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