The Concept of International Obligations Erga Omnes

ABSTRACT

In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice
identified a category of international obligations called erga omnes, namely obligations owed by states to
the international community as a whole, intended to protect and promote the basic values and common
interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book
adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating
obligations erga omnes in light of state practice and court decisions (including the South West Africa and
the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus
cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga
omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of
aggression and genocide, and the protection from slavery and racial discrimination. From this analysis,
the book infers five common elements of obligations erga omnes, including their reflecting basic moral
values. The book then examines these common elements in light of other candidates of obligations erga
omnes proposed in the international literature and state practice. Before drawing general conclusions,
the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and
actio popularis.

The prohibition of aggression is opposable to all states without exception and affects the interest of all.
This chapter examines the impact of erga omnes on self-defence and other circumstances precluding
wrongfulness, within the context of the codification of the law of state responsibility. It also discusses
the erga omnescharacter of the obligation to notify international shipping of the existence of a minefield,
showing how the broad criteria of public policy enshrined in the ‘elementary considerations of humanity’
in the International Court's decision in the Corfu Channel case were articulated as obligations erga
omnes, forty years later, in some of the opinions appended to the International Court's decision on the
merits of the Nicaragua case.

A Jus Cogens rule (synonym: peremptory norm) is described in the Vienna

Convention on the law of Treaties as follows: “…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.”

Short and simple, it’s a rule that is so widely accepted that every and any State must
comply with it. It is seen as essential to international law, leaving no room for
reservations by certain actors on the international stage. An entity can not, for example,
claim to have the right to use armed force against a state, based on the fact that it has
not signed and ratified the UN Charter. The prohibition on the use of force is part of jus
cogens, and therefore not subject to reservations or derogations. A jus cogens rule is the
highest class of rules in the hierarchy of international law.

An erga omnes obligation is an obligation that every state has toward the entire
international community as a whole. The nature of the rules creating erga omnes rules
is such that any state has the right to complain of a breach by another state of said rule,
because every state has an interest in the protection of the rules that generate erga
omnes obligations. For example, a state does not need to be directly or indirectly
involved in a case of genocide in order to be able to complain about it.

Now it might seem difficult to observe a difference. That is because both concepts are
closely related. A jus cogens rule creates an erga omnes obligation for states to comply
with a rule. An erga omnes obligation is therefore the consequence of a rule being
characterized as jus cogens.