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Relationship between Article 103 of UN Charter and Jus Cogens – Suvigya Tripathi 1367B

The UN Charter provides for the prevailing effect and compulsions of its provisions upon UN
member states. Article 103 of the Charter says, 'In the event of a conflict between the obligations
of the Members of the United Nations and their obligations under any other international
agreement their obligations under the present Charter shall prevail. Article 25 refers that 'The
Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter .On the other hand, jus cogens norms
(compelling law)are recognized as established principle of international law and the Articles 53
and 64 of the Vienna Convention on the Law of Treaties (VCLT),1969 stated that 'A jus cogens
or peremptory norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the
same character.1 A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law'. Subsequently, 'If a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that norm becomes void
and terminates'

Moreover, the idea of jus cogens found in many judicial decisions, the French-Mexican Claims
Commission in the Pablo Najera Case, and later by Judge Schucking of the Permanent Court of
International Justice (PCIJ) in the Oscar Chinn Case 1934.2 Furthermore, in the Nicaragua Case
the ICJ evidently acknowledged jus cogens as an established principle in international law.3
Hence there are few issues raised debate in relation to article 103 and the jus cogens norm. The
VCLT itself a treaty, therefore, SC by its conclusion under Chapter VII may take priority over
the treaty commitment in accordance with article 103 of the UN Charter. Following things are
observed about the UN Charter and jus cogens norm (a) the VCLT entered into force in 1980 and
the UN Charter in 1945; (b) the VCLT is not retroactive and Article 4 of the VCLT provides
that: 'The Convention applies only to treaties which are concluded by states after the entry into
force of the present Convention with regard to such states'; (c) the VCLT does not have
ratification.

1
Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, U.N. Doc. A/Conf. 39/ 27, 1155 U.N.T.S. 331,
available at http://www.un.org/law/ilc/texts/treaties.htm.
2
Pablo Nájera (France) v. United Mexican States. 19 October 1928. V pp. 466-508
3
Nicaragua v. UNITED STATES OF AMERICA,1986