By relying on ideas closely linked to jus cogens the International Law Commission (ILC) proposed the notion of international crimes resulting from the breach by a state of an international obligation `essential for the protection of fundamental interests of the international community'(ILC (1976 II)
This gave impetus for other states to rely extensively on the principle of Jus Cogens to bring about major changes in existing laws, as these states which perceive an urgent need to implement drastic changes in International Laws consider it as a powerful argument. Legal reformers discovered that by introducing a few peremptory principles radical changes in the entire system of the existing legal relationships could be achieved (. The ILC (1976 H)
The issue of Intervention has been the most vaguely defined term in international relations and conduct. The varying perceptions in this regard range from stating that intervention is a right, or a crime or an exception or not permitted at all(Winfield P H 1922). The ICJ during the judgment in this case clarified a few aspects related to intervention Most questions related to this aspect have not been clearly defined which is because nations have conducted inconsistently to this aspect at different times in their history(Lawrence T.
J 1895). In its Judgment of 26 November 1984, the Court affirmed that “principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated” (I. C. J. Reports 1984, p. 424, para. 73. ).
One of the principle arguments in support of a right of human intervention is that it exists parallel to Article 2(4) of the UN Charter. Most proponents for the customary right to human intervention express it as being a legitimate form of self help. Similarly, it had also been contended that in the absence of remedial action by the UN in cases of gross violation of human rights, unilateral initiative by nations was permissible. (Lillich1969).
There were thus two arguments in favor of a customary international law on right of intervention: a form of self help which would stand scrutiny of the adoption of the Charter, and as an emerging norm of customary international law that modified existing Charter obligations. The possibility of a new international order prohibiting use of force created ambiguity in the event of failure of conflict resolution mechanism. This was further reinforced by the ruling in the Albania VS UK case (North Corfu Channel Case), which was considered as a rejection of the right of intervention (Lauterpacht 1958).
This ambiguity was more pronounced as the ‘Right’ referred to was that alleged by UK or a general right of intervention (Brown lie 1963). This ambiguity was clarified by the ICJ in Nicaragua Vs USA case where the Court cited the case in support of a general principle of Non-intervention. Thus the court established the validity of customary International Law over the International Laws framed in the UN and OAS; or any other multilateral treaty organization.
The verdict also supported the view that democracy has not displaced peace as the principle concern of the International legal system with regards to the right of self determination and Article 2(4) and 2(7) by stating that “the adherence to any particular doctrine by a nation does not constitute violation of customary international law” (ICJ Reports (1986) General Prohibition on the Use of Armed Force The principles of the UN which prohibit the use of armed force by member nations against a member or non-member are elucidated in Article 2 of The UN Charter.
Aspects related to the use of force by a non-member against a member/non-member are given in Article 2(6) of the UN Charter. Legal experts opine that Article 2(6) is a remarkable stipulation as it imposes the legal obligations of Article 2(4) indirectly on non-member states (Kelson 1950). One of the basic tenets of International Law as given in Article 35 of The Vienna Conventions 1969 is that the legal aspects of a treaty are binding on a third state only if that state gives its consent in writing.
Thus Article 35 clarifies that the juridicial basis of a non –member is not the treaty itself but the agreement by which the non-member state has accepted the obligation (Sinclair1984). Thus Article 2(6) is not a deviation from the precept concerning treaty obligations and Third States as the article clearly stipulates that “the duty established therein devolves not on member states but on the organization itself” (Bindschelder1963). The implication of Article 2(6) is that the organization is obliged to take necessary steps against non-member states if they undermine international peace and security.
When the organization discharges its duty, the steps taken must be consistent with general customary international law(Fitzmaurice1960). In the last half century, the liberty of states to venture in to war has been effaced from customary international law since a breach of peace by the aggressor (member or non member) is in contravention of the existing norm and the UNO may take counter action against the violation of international law.
In the present modern day context, the prohibition on the use of force by satates in keeping with the provisions of Article 2 (4) of The Charter is an integral part of International Customary Law. By the judgment of the ICJ in the Nicaragua –USA case, the current state of the International Customary Law was authoritatively canvassed(Nicaragua Case) as it clearly defined the norms regading the use of inter state force and further clarified the provisions of Article 2(4) and 2(6) of The UN Charter .