THE CONCEPT OF ERGA OMNES: OBLIGATIONS IN INTERNATIONAL LAW

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THE CONCEPT OF ERGA OMNES:
OBLIGATIONS IN INTERNATIONAL LAW

Author: Ms. Vanshika Maheshwari

 3rd year Law student,
School of Law, Christ ( Deemed to be University)

Abstract
Erga Omnes is a latin term meaning “towards everyone” and In legal term meaning “rights” or an “obligation” that is towards all. Hence this is a right or an obligation that can be enforced against anyone who violates a right. In International, Erga Omnes defines the obligations owed by countries towards the society of the country as a whole. The concept is for the universal and undisputed interests of the people of their rights and to prevent the violation of such critical rights, and any state could question the infringement of such rights by a fellow state hence securing the rights of the entire international community, examples of Erga Omnes norms include racial discrimination and genocide. The concept was recognized in the International Court of Justice‘s decision in the Barcelona Traction case.  

Introduction
The theory of duties relating to erga omnes refersin international law to specific commitments that States have towards the international community as a whole. The word “erga omnes” has origins as far back as Roman law (Latin: “in relation to all”) and is used to describe duties or obligations to all.
The concept is very important as erga omnes commitments can also allow the International Court of Justice to go beyond reciprocal relations between states based on agreement to further develop international law in today’s context of international society based on adherence to natural law.This influences the free will of the state and the supremacy of States by its very existence.
In Mohamed, Justice Thomas of the England & Wales High Court used these words:
“The prohibition on State torture imposes obligations owed by states erga omnes, to all other states which have a corresponding right and interest in compliance.”
Similarly, these words of Brooklyn Law School professor David Buffa:
“In short, ergo omnes obligations are those obligations for which all states have a legal interest in fulfilment by reason of the importance of their subject-matter to the international community…. peremptory norms that states have a duty to refrain from irrespective of any treaty, because the obligatory duty of compliance is understood as being owed to the international community as a whole.”[1]
Consider, also, these words which can be found in Compagnie nationale Air France c. Mbaye: “… imperative standards of intern
ational law that cannot be derogated from…. (They are) erga omnes (and) do not require ratification or integration into national law to be enforceable in all countries.[2]
“While it is true that the general, customary practice is to integrate laws and regulations on the application of an international system of law into domestic law, it has already been emphasized that erga omnes, the transnational public order obligation related to jus cogens, does not require translation into the national system of law nor the promulgation of any instrument, contrary to what is required in the case of international treaties, the latter not being mandatory unless ratified and integrated within national law.”
Throughout international law, the definition of erga omnes first appears throughout two paragraphs of the decision in the Barcelona Traction Case (Second Phase), Belgium v. Spain, which the I.C.J. issued on 5 February 1970. The related paragraphs 33 and 34 shall read as follows:
33. In particular, there will be a significant difference between the obligations of a State to the international community as a whole and those that arise in the sphere of diplomatic security vis-à-vis another State. The former are, by their very nature, the interest of all States. Despite the value of the accused rights, They are erga omens commitments.
34. Those commitments derive, for example, from the outlawing of acts of aggression and genocide in current international law, as well as from the values and laws on fundamental human rights, including the defense against slavery and racial discrimination.[3]
Significance of the pronouncement concerning Erga Omnes obligations
A review of the context, meaning, and consequent pronunciation production is required to determine the importance of the pronouncement.
The very phrase “erga omnes responsibilities” predates the ICC’s dictum. Lachs, for example, is a member of the International Commission on Law
The term erga omnes was used during the discussion on the draft Article 62 of the Vienna Convention on the Law of the Treaties (Treaties laying down obligations or privileges of third countries).[4]Lachs was elected a lawyer, and was interested in the Barcelona Traction court ruling.
The pronouncement addresses four roles of erga omnes: banning acts of aggression; preventing genocide; guarding against slavery; and protecting against racial discrimination. How did the Court mention those particular reasons exactly and not others? The definitions will justify their presence in the pronouncement when analyzed as their position is well established in international law and originated from various conventions, judicial decisions, legislative processes, state declarations and resolutions, etc. That adapted to the customary principles of peremptory international law.

 

 

The outlawing of acts of aggression

The first consequence of the dictum is the outlawing of acts of aggression. The Charter of the United Nations provides the basic framework on the use of force question. Therefore paragraph 4 of Article 2 states:
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
The article does not use the word “violence” which suggests that not all forms of unlawful use of force involve aggression. Article 1 of UN General Assembly Resolution 3314, adopted by consensus in 1974, stipulates that ‘aggression requires the use of military force by a State against another State’s citizenship, territorial integrity or political independence; Or in some other manner incompatible with the reading of the United Nations Charter.’ The ban of war and the prohibition of the use of force were, in effect, the most cited example of peremptory norms, or laws jus cogens norms, during the work of codifying the law of treaties. Jus cogens is defined as: “a peremptory rule of general international law, adopted and acknowledged by the international community of States as a whole, as a norm from which no derogation is allowed and which can only be changed by a corresponding standard of general international law of the same character.” [5]
While the outlawing of acts of aggression is defined in the Barcelona Traction case as an erga omnes requirement, the I.C.J. claimed in the case of military and paramilitary operations in and against Nicaragua (Nicaragua v. the United States of America[6]) that the prohibition of the use of force as alluded to in the Charter has acquired the status of customary international law; And he called it ‘the basic or cardinal concept of the law. Judge [7]Sette-Camara issued a separate opinion in which he identified a peremptory clause in international law banning the use of force. [8][8]For this reason, it is incontrovertible from the essence of the ban on the use of force, generally accepted as a jus cogens norm, that the prohibition of violence is true erga omnes; This is, it is without question opposed to all States and impacts the rights of all[9][9].

The outlawing of genocide

Governments and human rights organisations have also called genocide the worst mosts of international crimes; the roots of the word genocide can be traced back to the Holocaust’s barbarism of the Second World War. In 1944, it was reportedly a Polish lawyer, Raphael Lemkin, who coined the term genocide. The first official documents relating to genocide can be traced back to the trials at Nuremberg. The ideals declared in Nuremberg have been recognised as principles of international law by Resolution 95, adopted unanimously by the United Nations General Assembly. The Convention was then implemented for the Elimination and Prosecution of Genocide. Article 1 of the Convention for the Prevention and Prosecution of Genocide Crimes reads:
“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a cri
me under international law which they undertake to prevent and to punish.”
Today the view that the conventional rule against genocide belongs to jus cogens is widely supported, just like the legislation that outlaws acts of aggression is. Moreover, it is now widely acknowledged at the state level that customary rules on genocide place erga omnes obligations on all Member States of the international community and give them the right to require genocide to be discontinued.[10]With respect to the implementation of the Convention on the Prevention and Punishment of Genocide Abuse (Bosnia and Herzegovina v. Serbia and Montenegro), both parties referred to the principle of erga omnes obligations[11]. The Court took the view that geographical limits do not extend to the erga omnes[12]freedoms and obligations.
“The rights and obligations enshrined in the [ Genocide ] Convention shall be erga omnes rights and duties. The Court states that the Convention does not limit territorially the duty of each State to avoid and prosecute the crime of genocide[13]
Another relevant opinion of the I.C.J. on genocide is the Opinion Advisory on the Genocide Convention. The General Assembly asked the Court, in November 1950, to give an advisory opinion on certain matters relating to the provisions of the Genocide Convention. The I.C.J. agreed that the parties to the Genocide Convention could make indiscriminate reservations but not all kinds of reservations. The court also noted that the principles underlying the Genocide Conventions are values that civilized nations accept as binding upon governments, even without any traditional obligation[15][14]. In the Barcelona Momentum case, when dealing with the issue of legal status, the Court distinguished between two types of commitments; whereas in the advisory opinion on the Genocide Convention, the International Court dealt with a matter relating to the law of the treaties. The absolute objectivity of the prohibition of genocide in the advisory opinion of the International Court on the Genocide Convention provides strong elements of comparison with the dictum on erga omnes obligations as regards both its content and language, and the advisory opinion may be considered a “precedent” of the dictum on erga omnes obligations[16 ].[15]
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Protection from slavery

 

International efforts to abolish slavery are more than two centuries old, leading to some eighty conventions and documents on the subject. While the dictum on obligation erga omnes in the Barcelona Traction case refers only to slavery, it would be logical to assume that the prohibition extends to the slave trade, since if slavery is prohibited then there cannot be any trade in slaves.  Slavery and the slave trade, once lawful practices in international society, have gradually become unlawful and are now prohibited erga omnes[19]. [16]As a matter of customary international law, the slave trade itself incurs criminal responsibility insofar as all states would appear to have at least permissive jurisdiction to proscribe domestic law against it when committed anywhere.

 

 

Protection from racial discrimination

A useful starting point for exploring this responsibility is the idea that every human being is equal. The Charter of the United Nations and the Universal Declaration of Human Rights, along with many other constitutional provisions applicable to universal and federal conventions and state laws, provide for basic standards of justice.
Racial discrimination is generally rejected as an inadmissible derogation from this equality principle. In general and geographical treaties, unique prohibitions against ethnic discrimination may be contained including: the Universal Agreement on Civil and Political Rights (in particular the Preamble and Article 2);
The International Covenant on Economic, Social and Cultural Rights (especially Articles 2, 7 and 13); and international resolutions such as the Helsinki Final Act, Article 7, etc.[20 ].[17]
A major step was made in the 1960s, with the adoption of the United Nations Resolution on the Elimination of All Forms of Racial Discrimination, in the creation of a general prohibition of racial discrimination, and then again in a conference with the same title. Part 1(1) of this Convention allows for racial discrimination as follows:
“Any distinction, exclusion, restriction or preference based on race, color, descent, or nationality or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
Moreover, even the I.C.J. affirmed In its Advisory Opinion on Namibia, South Africa, as the current mandatory of South West Africa, is required to respect human rights an
d basic freedoms for all without racial discrimination, and any other method constitutes a flagrant violation of the goals and principles of the Charter. Today the idea that the ban of racial discrimination is the result of an international norm and that jus cogens is strongly supported. In fact, Judge Tanaka, in his dissenting opinion on the case of South West Africa, addressed the prohibition of racial discrimination and argued that the prohibition of racial discrimination; This in itself is contradictory to the principle of equality between human beings and is subject to a prohibition which is protested by all States[21][18]. Thus it holds the same peremptory characteristic as the rules that, in its judgment, give rise to some erga omnes obligations listed by the International Court in that Barcelona Traction case.
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Consequent Development

 

The most important evolution beyond the Barcelona Traction Case was the emergence of the erga omnes obligation to respect the right to self-determination in the East Timor case and in the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the erga omnes obligation on the prohibition of torture recognized by the ICTY in the Furundzija case[22[19]]. In the East Timor case, the court dealt with the application of Portugal against Australia, according to which Australia had by its conduct failed to observe the obligation to respect the duties and powers of Portugal as the administering power and the right of the people to self- determination and related rights[23[20]]. Relevant to our case is the pronouncement in regard to the right of self-determination. In the Court‟s view, the right of peoples to self-determination is irreproachable, since it evolved from the Charter and from United Nations practice, and has an erga omnes character. It is significant, it should be noted, that the Court did not say “erga omnes obligations” but rather “erga omnes character”. However, paragraph 155 of the I.C.J. advisory opinion requested by the General Assembly on the “Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory” states that obligations erga omnes are the obligation to respect the right to self- determination and certain obligations under international humanitarian law.[24][21]Obviously, the court expressly states the “erga omnes obligation” to respect the right to self-determination and also refers to the East Timor case as a source on the same line of reasoning. Since the right to self determination, according to some scholars, is a jus cogens norm [25] [22]< /span>and since the I.C.J. has clearly referred to it as an erga omnes obligation, by drawing an analogy with the other erga omnes obligations in the Barcelona Traction case deriving from jus cogens norms, it is safe to regard the obligation to respect the right to self determination as an erga omnes obligation. Furthermore, in the Furundzija case, the International Criminal Tribunal for Yugoslavia in paragraph 151 held that:

 

“Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.”
The Tribunal makes clear reference to the prohibition of torture as a duty of erga omnes. Moreover, in international law, the prohibition of torture is most sometimes referred to as a “jus cogens norm” (a rule of a peremptory nature). By drawing an analogy once again with the obligations specified in the Barcelona case, it is fitting to attach the erga omnes responsibility of banning slavery to the list of the well-established erga omnes responsibilities under international law to date.
CONCLUSION
In international law the explicit meaning of the erga omnes has developed a lot. The Court’s ruling on the Barcelona Traction case relating to erga omnes obligation, however the obiter dictum, is valid and is of extreme importance. Also,the definitions listed by the court come from brusquely principles of international law.
Erga Omnes interpretated by the court of justice has been used several times in the pleadings of the complainan and also by the Court after it was accepted as a conceptin the Barcelona Traction court. Last but not least, by adding to the list of erga omnes responsibilities fighting for the right of self-determination and the erga omnes duty on slavery prohibition, the concept is further recognized and established.
Bibligraphy
 Books
l  Brownlie I (2003) Principles of Public International Law, Sixth Edition, Oxford University Press.
l  Cassese A (2003) International Criminal Law. Oxford University Press.
l  Ragazzi M (2002) The Concept of International Obligations Erga Omnes. Oxford University Press.
Legal Documents (sources)
·       I.C.J. Reports, 2003 (Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory).
·       I.C.J. Reports 1996 (Bosnia and Herzegovina v. Serbia and Montenegro).
·       I.C.J. Reports, 1995 (Portugal v. Australia).
·       I.C.J. Reports 1986 (Nicaragua v. United States of America).  
·       I.C.J. Reports, 1970, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain).
·       I.C.J. Reports 1951 (Advisory Opinion on the Genocide Convention).
·       Prosecutor v. Anto Furundzija, Decision of December 1998.
·       Vienna Convention on the Law of Treaties.
Online sources


[1]Duhaime’s Law Dictionary ( March.
16, 2017), available at http://www.duhaime.org/LegalDictionary/E/ErgaOmnes.aspx
[2] Id.
[3]I.C.J. Reports, 1970, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain).
[4]Ragazzi M, The Concept of International Obligations Erga Omnes. (Oxford University Press 2002).
[5]Vienna Convention on the Law of Treaties. art.52.
[6]I.C.J. Reports 1986 (Nicaragua v. United States of America).
[7]Id.

[8]Id.
[9]Ragazzi M, The Concept of International Obligations Erga Omnes, 74-79 (Oxford University Press 2002).
[10]Cassese A, International Criminal Law, 98. (Oxford University Press. 2003)
[11]I.C.J. Reports 1996 (Bosnia and Herzegovina v. Serbia and Montenegro).
[12] Brownlie I, Principles of Public International Law, 568 (Sixth Edition, Oxford University Press, 2003).
[13] Id.
[14] ]  I.C.J. Reports 1951 (Advisory Opinion on the Genocide Convention).
[15] Ragazzi, supra note 9 at 100-104.
[16] Id  at 115- 116
[17] Id  at 118.
[18]Id  at 130.
[19]Prosecutor v. Anto Furundzija, 1998, para. 151.
[20].C.J. Reports, 1995 (Portugal v. Australia), para. 1.
[21]I.C.J. Reports, 2003 (Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), para.155
[22]Brownlie I, Principles of Public International Law, 498 (Sixth Edition, Oxford University Press, 2003).

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