Difference between jus cogens and obligation erga omnes

The simple trick to understanding the two is understanding the differentiation of their respective
functions. Jus cogens confers upon a set of norms such as those contained in the Geneva
Conventions of 1949, a hierarchical superiority among all other norms of International Law. Jus
cogens are essentially elevated subsets of Customary International Law, first recognised in the
Vienna Convention on the Law of Treaties. Jus cogens therefore relate to the status of the given
norm.

Obligations erga omnes on the other hand, confer a right of standing pertaining to the said norms
which often overlap with those covered under jus cogens. What this implies, is in a hypothetical
scenario, where no other jurisdictional issues arise, any member state may file a case before an
international tribunal if State ‘X’, let’s say, is guilty of carrying out ‘ethnic cleansing’ or similar
such wrongs.

The concept of erga omnes was articulated in the dictum of the International Court of Justice in
the Barcelona Traction Case, wherein the Court, for the first time, introduced the possibility of
there existing a general ‘legal interest’ of states in the enforcement of a certain set of international
obligations. Simply put, a state need not be directly affected by the breach of an obligation erga
omnes in order to seek appropriate remedy.

Thus, a violation of jus cogens norms potentially incurs state liability whereas the existence of
obligations erga omnes and their violation creates a right of enforcement.
What is the difference between "erga omnes" and "Jus cogens"?
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4 ANSWERS
Sebastiaan Van Severen
Sebastiaan Van Severen, Doctoral Researcher in International Law at Ghent University (2017-
present)
Answered Feb 16, 2018 · Upvoted by Uğurcan Öztürk, LL.M. Public International Law &
International Criminal Law…
Both concepts deal with the binding force of rules of international law. There is a difference,
however.

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.
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OTHER ANSWERS
Janhavi
Janhavi, International Law, International Affairs, World History
Updated Nov 20, 2018
The simple trick to understanding the two is understanding the differentiation of their respective
functions. Jus cogens confers upon a set of norms such as those contained in the Geneva
Conventions of 1949, a hierarchical superiority among all other norms of International Law. Jus
cogens are essentially elevated subsets of Customary International Law, first recognised in the
Vienna Convention on the Law of Treaties. Jus cogens therefore relate to the status of the given
norm.

Obligations erga omnes on the other hand, confer a right of standing pertaining to the said norms
which often overlap with those covered under jus cogens. What this implies, is in a hypothetical
scenario, where no other jurisdictional issues arise, any member state may file a case before an
international tribunal if State ‘X’, let’s say, is guilty of carrying out ‘ethnic cleansing’ or similar
such wrongs.

The concept of erga omnes was articulated in the dictum of the International Court of Justice in
the Barcelona Traction Case, wherein the Court, for the first time, introduced the possibility of
there existing a general ‘legal interest’ of states in the enforcement of a certain set of international
obligations. Simply put, a state need not be directly affected by the breach of an obligation erga
omnes in order to seek appropriate remedy.

Thus, a violation of jus cogens norms potentially incurs state liability whereas the existence of
obligations erga omnes and their violation creates a right of enforcement.

In simple answer, jus cogens are codified customary international laws (CIL) CIL binds all
notwithstanding whether a state is a party or not. The only major difference between both jus
cogens and CIL is that jus cogens is codified CIL while CIL on its own is not codified. This is
where erga omnes comes in with its universal application. So while jus cogens are codified CIL,
erga omnes are norms that are applicable to all.

Essentially Jus cogens pertains to the legal status a specific international crime has attained and
erga omnes referes to the legal implications arising out of a certain crime's characterization as jus
cogens.

Simply put all norms of jus cogens would produce, if breached, obligations erga omnes.