Santiago

VINUYA VS. EXECUTIVE SECRETARY

G.R. No. 162230, 28 April 2010

FACTS

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. As a result of the
actions of their Japanese tormentors, the petitioners have spent their lives in misery, having
endured physical injuries, pain and disability, and mental emotional suffering. Petitioners claim
that since 1998, they have approached the Executive Department through the DOJ, DFA and
OSG, requesting assistance in filing a claim against the Japanese officials and military officers
who ordered the establishment of the “comfort women stations in the Philippines. However, said
officials declined to assist the petitioners, and took the position that the individual claims for
compensation have already been fully satisfied by Japan’s compliance with the Peace Treaty
between the Philippines and Japan. Petitioners also argued that the comfort women system
constituted a crime against humanity, sexual slavery, and torture. They alleged that the
prohibition against these international crimes is jus cogens norms from which no derogation is
possible, as such, the Philippine government is in breach of its legal obligation not to afford
impunity for crimes against humanity.

ISSUE

Whether the Executive Department committed grave abuse of discretion in not espousing
petitioner’s claims for official apology and other forms of reparations against Japan.

RULING

No. The question whether the government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has determined that taking up petitioners’ cause would be inimical to our
country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For the Court to overturn the Executive
Departments determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed. In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf. Even then, it is not the
individuals rights that are being asserted, but rather, the states own rights. The State, therefore,
is the sole judge to decide whether its protection will be granted, to what extent it is granted, and
when will it cease.

The Court fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary international law.
However, it does not automatically imply that the Philippines is under a non-derogable obligation
to prosecute international crimes. Absent the consent of the states, an applicable treaty regime,
or a directive by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Even the invocation of jus cogens norms and erga omnes obligations will not
alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in
1951, petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes is an erga omnes obligation or has attained the
status of jus cogens.

Velasquez-Rodriguez vs. Honduras, Inter-American Court of Human Rights, July 29, 1988
(International Responsibility for internationally wrongful acts)

Facts

This case considered the practice of “forced disappearances” by the Government of Honduras,
which included secret surveillance, kidnapping and executions.

The Court found as proved that “[d]uring the period 1981 to 1984, 100 to 150 persons
disappeared in the Republic of Honduras, and many were never heard from again.” It
recognized patterns in these disappearances that included a distinctive modus operandi of the
forces in question, including use of civilian clothing, disguises, and unmarked vehicles. It also
found “public and notorious knowledge” that these operations were carried out by, or under
orders from, military or police personnel, with clear targeting of persons considered dangerous
to State security by Honduran officials. Testimony showed that upon being taken to secret
detention facilities, victims were “interrogated… and [subjected] to cruel and humiliating
treatment and torture. Some were ultimately murdered and their bodies were buried in
clandestine cemeteries.” The Court found further that lawyers and judges who attempted to
execute writs of habeas corpus were systematically denied knowledge of the events, and that
authorities either denied or failed to adequately undertake investigation into the disappearances.

With regard to the instant case, the Court found that “between 4:30 and 5:00 p.m., several
heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped
Manfredo Velásquez from a parking lot in downtown Tegucigalpa.” It further confirmed that
Velásquez fit the profile of other persons suspected to have been kidnapped and executed, and
found that the passage of nearly seven years since the disappearance created the reasonable
presumption that he was dead.
The case reached the Court following dismissal of a domestic suit on behalf of Velásquez, as
well as multiple unsuccessful attempts to execute writs of habeas corpus domestically. The
Inter-American Commission on Human Rights originated petition against the State of Honduras
alleging violations of Articles 4, 5 and 7 of the American Convention on Human Rights.

Decision and Reasoning

The Court held that the Government of Honduras violated Articles 1(1) (obligation to respect
rights), 4 (right to life), 5 (right to humane treatment), and 7 (right to personal liberty) of the
Convention. The disappearance of Manfredo Velásquez, and subsequent failure of the
Government to adequately investigate constituted a violation of his fundamental rights to life,
humane treatment, and personal liberty.

The Court stated that forced disappearance is a “multiple and continuous violation” of a variety
of rights. Kidnapping is an arbitrary deprivation of liberty and a violation of due process.
Prolonged isolation and incommunicado detention are cruel and inhuman treatment. Secret
execution without trial is a flagrant violation of the right to life. The Court emphasized that forced
disappearances are a “crass abandonment of the values” of the Convention.

Honduras violated its duties to prevent the violations of Velasquez’s rights from the forced
disappearance and to carry out an investigation after his disappearance.

The Court noted that the burden of proof depends in part on the special seriousness of the
charges and that “circumstantial or presumptive evidence” were critical in allegations of forced
disappearances.

Decision Excerpts

“154. Without question, the State has the right and duty to guarantee its security. It is also
indisputable that all societies suffer some deficiencies in their legal orders. However, regardless
of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the
power of the State is not unlimited, nor may the State resort to any means to attain its ends. The
State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for
any State action.”

“155. The forced disappearance of human beings is a multiple and continuous violation of many
rights under the Convention that the States Parties are obligated to respect and guarantee. The
kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right
to be taken without delay before a judge and to invoke the appropriate procedures to review the
legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to
personal liberty….”
“156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel
and inhuman treatment, harmful to the psychological and moral integrity of the person and a
violation of the right of any detainee to respect for his inherent dignity as a human being. Such
treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the
integrity of the person ….

In addition, investigations into the practice of disappearances and the testimony of victims who
have regained their liberty show that those who are disappeared are often subjected to
merciless treatment, including all types of indignities, torture and other cruel, inhuman and
degrading treatment, in violation of the right to physical integrity recognized in Article 5 of the
Convention.”

“157. The practice of disappearances often involves secret execution without trial, followed by
concealment of the body to eliminate any material evidence of the crime and to ensure the
impunity of those responsible. This is a flagrant violation of the right to life, ….”

“182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez
was carried out by agents who acted under cover of public authority. However, even had that
fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a
failure on the part of Honduras to fulfill the duties it assumed under Article 1(1) of the
Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his
human rights.

183. The Court notes that the legal order of Honduras does not authorize such acts and that
internal law defines them as crimes. The Court also recognizes that not all levels of the
Government of Honduras were necessarily aware of those acts, nor is there any evidence that
such acts were the result of official orders. Nevertheless, those circumstances are irrelevant for
the purposes of establishing whether Honduras is responsible under international law for the
violations of human rights perpetrated within the practice of disappearances.”

In Re Yamashita, 327 U.S. 1 (1946) (Command Responsibility)

Syllabus

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army
Group of the Imperial Japanese Army in the Philippine Islands. On that day, he surrendered to
the United States Army and became a prisoner of war. Respondent was the Commanding
General of the United States Army Forces, Western Pacific, whose command embraced the
Philippine Islands. Respondent appointed a military commission to try the petitioner on a charge
of violation of the law of war. The gist of the charge was that petitioner had failed in his duty as
an army commander to control the operations of his troops, "permitting them to commit"
specified atrocities against the civilian population and prisoners of war. Petitioner was found
guilty, and sentenced to death.
Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327 U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy combatants for
offenses against the law of war, and principles governing the exercise of jurisdiction by such
commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-
9.

(b) A military commission may be appointed by any field commander, or by any commander
competent to appoint a general court-martial, as was respondent by order of the President. P.
327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of Congress (10
U.S.C. §§ 1471-1593) sanctioning

Page 327 U. S. 2

the creation of such tribunals for the trial of offenses against the law of war committed by enemy
combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had ceased.
P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may lawfully be
tried by a military commission after hostilities have ceased -- at least until peace has been
officially recognized by treaty or proclamation by the political branch of the Government. P. 327
U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political branch of the
Government, by military command, by international law and usage, and by the terms of the
surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war. P. 327 U. S.
13.
(a) The law of war imposes on an army commander a duty to take such appropriate measures
as are within his power to control the troops under his command for the prevention of acts which
are violations of the law of war and which are likely to attend the occupation of hostile territory
by an uncontrolled soldiery, and he may be charged with personal responsibility for his failure to
take such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of war, and
whether such measures as he may have taken were appropriate and sufficient to discharge the
duty imposed upon him, were questions within the peculiar competence of the military officers
composing the commission, and were for it to decide. P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be stated
with the precision of a common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a
violation of the law of war, and the military commission had authority to try and to decide the
issue which it raised. P. 327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion evidence, the
military commission did not violate any Act of Congress, treaty, or military command defining the
commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an enemy
combatant by a military commission

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be followed in
such trial. Pp. 327 U. S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and according
to the same procedure as in the case of persons belonging to the armed forces of the detaining
Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the
petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for an offense
committed while a prisoner of war, and not for a violation of the law of war committed while a
combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such evidence
as was received in this proceeding, nor on the question whether the action of a military tribunal
in admitting evidence which Congress or controlling military command has directed to be
excluded may be drawn in question by petition for habeas corpus or prohibition. P. 327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or innocence of
the petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the law of
war, Congress recognized the right of the accused to make a defense, and did not foreclose
their right to contend that the Constitution or laws of the United States withhold authority to
proceed with the trial. P. 327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was convicted. P. 327
U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the
proceedings against the petitioner are not reviewable by the courts, but only by the reviewing
military authorities. From this viewpoint, it is unnecessary to consider what, in other situations,
the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power
shall advise the representative of the protecting Power thereof as soon as possible, and always
before the date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses committed while
prisoners of war. P. 327 U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject to the
prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and prohibition in
this Court challenging the jurisdiction and legal authority of a military commission which
convicted applicant of a violation of the law of war and sentenced him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the Commonwealth of
the Philippines, 42 Off.Gaz. 664, denying an application for writs of habeas corpus and
prohibition likewise challenging the jurisdiction and legal authority of the military commission
which tried and convicted petitioner. Denied.

US Army Captain Ernest Medina (Command Responsibility)

FACTS

Captain Ernest Medina was born on 27 August 1936. In 1956, Medina followed his lifetime
dream of joining the army, starting only a notch above a recruit. In December, 1966, Medina
was made commanding officer of Charlie Company.

On 16 March 1968, near eight o’clock in the morning, Charlie Company, one of the three units
of Task Force Barker of the American Army, entered the village of My Lai in Quang Ngai
Province in the south of Vietnam. This Company was under the leadership of Captain Ernest
Medina. In just over three hours, members of this Company executed close to 500 civilians
including children, women and elderly people.
The exact role of Captain Medina during these events is still today subject to controversy.
According to the Defence Department, which held its own enquiry (See the Peers Report), his
responsibility was implied on several grounds: on the eve of the attack, he told his soldiers that
anyone present in the village was to be considered as an enemy combatant, thereby implicitly
authorizing the execution of these persons. It is considered likely that he himself executed three
non-combatants during this operation; he is said to have abused a prisoner by beating him over
the head and by firing his revolver close to his head; he reportedly attempted on several
occasions to cover up these events.

In March 1969, Ronald Ridenhour, a former GI., on being made aware of what had taken place
at My Lai, decided to inform the American authorities. The case was then handed over to the
Inspector General of the Army to open up an enquiry. It was subsequently committed to the
army’s Criminal Investigation Division.

Captain Medina was court-martialed in 1971.

LEGAL PROCEDURE

Captain Medina was court-martialed in 1971

In March 1969, Ronald Ridenhour, a former GI., on being made aware of what had taken place
at My Lai, decided to inform the American authorities. The case was then handed over to the
Inspector General of the Army to open up an enquiry. It was subsequently committed to the
army’s Criminal Investigation Division.

At the beginning of the trial, Ernest Medina was charged with the “premeditated murder” of at
least 100 civilians. He was also accused of the murder of a woman and a child, and the assault
of a prisoner. The military judge handling the affair, Colonel Kenneth A: Howard, later reduced
the charge of “premeditated murder” to one of “involuntary manslaughter”. The charge relating
to the murder of a child was dropped.

The trial of Captain Medina raised the overall question of the responsibility of those in positions
of command . The prosecutor laid out what such responsibility entails by reminding the court of
the following points:

1. It is a well established rule in the military that a commander is responsible for the actions of
his subordinates. This presupposes that he must give clear and concise orders and that he must
adapt his orders in line with the situation as it evolves.

2. If war crimes have been committed by his soldiers, the commander himself also bears
responsibility:
a) In the case where he himself gave the order to commit these crimes (direct responsibility); or

b) When he knew, or should have known, that the crimes had been committed or were about to
be committed and he did not take all necessary and reasonable measures to safeguard the
respect of International Humanitarian Law or to sanction those at fault.

3. Finally, every member of the armed forces, independent of his position, has the obligation to
report to his hierarchical superior as well as to the military legal authorities any act which could
potentially be considered as a war crime.

In the question at issue the Jury considered that the evidence admitted during the trial was
insufficient to establish guilt on the part of the accused.

Captain Medina was acquitted on 22 September 1971.

North Sea Continental Shelf, West Germany vs. Denmark, West Germany vs. Netherlands
(International Customary Law)

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element). In these cases, the Court explained the
criteria necessary to establish State practice – widespread and representative participation. It
highlighted that the practices of those States whose interests were specially affected by the
custom were especially relevant in the formation of customary law. It also held that uniform and
consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State practice amounts to a legal obligation. The North Sea Continental Self Cases also
dispelled the myth that duration of the practice (i.e. the number of years) was an essential factor
in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries
previously agreed upon by these States. The parties requested the Court to decide the
principles and rules of international law that are applicable to the above delimitation because the
parties disagreed on the applicable principles or rules of delimitation. Netherlands and Denmark
relied on the principle of equidistance (the method of determining the boundaries in such a way
that every point in the boundary is equidistant from the nearest points of the baselines from
which the breath of the territorial sea of each State is measured). Germany sought to get a
decision in favour of the notion that the delimitation of the relevant continental shelf was
governed by the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands,
Germany argued that the principle of equidistance was neither a mandatory rule in delimitation
of the continental shelf nor a rule of customary international law that was binding on Germany.
The Court was not asked to delimit because the parties had already agreed to delimit the
continental shelf as between their countries, by agreement, after the determination of the Court
on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wanted this prolongation to take place based on the equidistance
principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its concave coastline,
such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles
and rules of international law applicable to this delimitation. In doing so, the Court had to decide
if the principles espoused by the parties were binding on the parties either through treaty law or
customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and the method
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is
not a party to the Convention (not having ratified it), she was still bound by Article 6 of the
Convention because:
“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of
continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the
attitude thus taken up” (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It said that only a ‘very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the formal manner: i.e. ratification) when
the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6, following which that particular article
would no longer be applicable to Germany (in other words, even if one were to assume that
Germany had intended to become a party to the Convention, it does not presuppose that it
would have also undertaken those obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force
in 1980, discusses in more detail treaty obligations of third States (those States who are not
parties to the treaty). It clearly stipulates that obligations arise for third States from a provision of
a treaty only if (1) the actual parties to the treaty intended the provision to create obligations for
third States; and (2) third State expressly accept those obligations in writing (Article 35 of the
VCLT). The VCLT was not in force when the Court deliberated on this case. However, as seen
above, the Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany – but held that Germany’s action did not support an argument for
estoppel. The Court also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6, is not sufficient to state that the
principle is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance–special
circumstances rule was not binding on Germany by way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general
international law on the subject of continental shelf delimitation’ and that it existed independently
of the Convention. Therefore, they argued, Germany is bound by the subject matter of Article 6
by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law,
the Court examined (1) the status of the principle contained in Article 6 as it stood when the
Convention was being drawn up; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part
of existing or emerging customary international law at the time of drafting the Convention. The
Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention. The Court
held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding, – for
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members of the
international community, and cannot therefore be the subject of any right of unilateral exclusion
exercisable at will by any one of them in its own favor…. The normal inference would therefore
be that any articles that do not figure among those excluded from the faculty of reservation
under Article 12, were not regarded as declaratory of previously existing or emergent rules of
law …” (see para 65 for a counter argument and the Court’s careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status
after the Convention came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force – either due the Convention itself (i.e., if
enough States had ratified the Convention in a manner so as to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient State practice to meet the criteria below).
The Court held that Article 6 of the Convention had not attained a customary law status.
(Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to
international humanitarian law in terms of the latter’s authority as a pronouncement of
customary international law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a
general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea
Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions
to the Convention (39 States) were not adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as
important as widespread and representative participation, uniform usage, and the existence of
an opinio juris. It held that:

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule, an indispensable requirement would be
that within the period in question, short though it might be, State practice, including that of
States whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked and should moreover have occurred in such a way
as to show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in
so far as those acts or omissions were done following a belief that the said State is obligated by
law to act or refrain from acting in a particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The Court
concluded that even if there were some State practice in favour of the equidistance principle,
the Court could not deduct the necessary opinio juris from this State practice. The North Sea
Continental Shelf Cases confirmed that both State practice (the objective element) and opinio
juris (the subjective element) are essential pre-requisites for the formation of a customary law
rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the
concept of opinio juris and the difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or
be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77).

15. The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force of the Geneva Convention
or thereafter. As such, the Court held that the use of the equidistance method is not obligatory
for the delimitation of the areas concerned in the present proceedings.

Barcelona Traction Light and Power Company (Belgium vs. Spain) (Obligation erga
omnes)

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the injury to
a Canadian corporation operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the treatment of foreign
investments based on general international law, once the state admits foreign investments or
foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium
(P) sued Spain (D) on the premise that Spain (D) was responsible for acts in violation of
international law that had caused injury to the Canadian corporation and its Belgian
shareholders (P).
Issue. Does a state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory. It is highly imperative to draw a distinction between those obligations
of a state toward the international community as a whole and those arising from the field of
diplomatic protection. It is only the party to whom an international obligation is due can bring a
claim if a breach of an obligation that is the subject of diplomatic protection occurs.

Discussion. The basic right of all human persons was mentioned by the Court to be protected
against slavery and racial discrimination as deriving from basic general international law. Such
rights may derive from international instruments of a universal or quasi-universal character.
Such obligations are obligations erga omnes, that is, all states have a legal interest in their
protection.

THE CONCEPT OF ERGA OMNES OBLIGATIONS IN INTERNATIONAL LAW

Abstract

In international law, the concept of erga omnes obligations refers to specifically determined
obligations that states have towards the international community as a whole. In general legal
theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as far back
as Roman law and is used to describe obligations or rights towards all. In municipal law it has
the effect towards all in another, general context.

The concept is very important because in today’s structure of international society, composed of
independent entities giving rise, as a rule, to legal relations on a consensual basis, erga omnes
obligations can further enable the International Court of Justice to go beyond reciprocal relations
among states based on consent in further developing international law on the basis of a natural
law approach. By its very nature this affects the freedom of state consent and the sovereignty of
states.

This paper will try to shed some light on this concept by analysing its meaning in international
law, starting from its appearance, consequent development and its position at the present time.

Key words: erga omnes obligations, ratio decidendi, obiter dicta, stare decisis, jus cogens
norms, aggression, genocide, slavery, racial discrimination, torture, self-determination.
Introduction

In its dictum on the Barcelona Traction case, the International Court of Justice, as the primary
judicial organ of the United Nations, gave rise to the concept of erga omnes obligations in
international law. The World Court specifically enumerated four erga omnes obligations: the
outlawing of acts of aggression; the outlawing of genocide; protection from slavery; and
protection from racial discrimination.i In this judgment the Court drew a distinction between the
erga omnes obligations that a state has towards the international community as a whole and in
whose protection all states have a legal interest, and the obligations of a state vis-à-vis another
state.

In international law, the concept of erga omnes obligations refers to specifically determined
obligations that states have towards the international community as a whole. Such obligations,
as enumerated above, have been determined by the Barcelona Traction case, together with
other subsequently developed obligations, such as the obligation to respect the principle of self-
determination in the Case Concerning East Timorii and the Advisory Opinion on the Legal
Consequences of the Construction of a Wall in Occupied Palestinian Territory,iii and the erga
omnes obligation prohibiting the use of torture which was recognized by the International
Criminal Tribunal for Yugoslavia (hereinafter, the ICTY) in the Furundzija caseiv .

While erga omnes obligationsare specifically determined in international law, in general legal
theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as far back
as Roman law and is used to describe obligations or rights towards all. In municipal law it has
the effect towards all in another, general context. For example, a property right is an erga
omnes right while a right based on a contract is only enforceable towards the contracting party
and is “inter partes” (Latin: between the parties) (Emanuel 1999: 186).

The concept is very important because in today’s structure of international society, composed of
independent entities giving rise, as a rule, to legal relations on a consensual basis, erga omnes
obligations can further enable the International Court of Justice to go beyond reciprocal relations
among states based on consent in further developing international law on the basis of a natural
law approach. By its very nature this affects the freedom of state consent and the sovereignty of
states.

This paper will try to shed some light on this concept by analysing its meaning in international
law, starting from its appearance, consequent development and its position at the present time.

The appearance of the concept in international law

The concept of erga omnes appears in international law for the first time in two paragraphs of
the judgment in the Barcelona Traction Case (Second Phase), Belgium v. Spain which the I.C.J.
delivered on February 5, 1970.v The relevant text of the paragraphs 33 and 34 follow:

33. In particular, an essential distinction should be drawn between the obligations of a state
towards the international community as a whole, and those arising vis-a vis another State in the
field of diplomatic protection. By their very nature the former are the concern of all States. In
view of the importance of the rights involved, all States can be held to have a legal interest in
their protection; they are obligations erga omens.

34. Such obligations derive, for example, in contemporary international law, from the outlawing
of acts of aggression, and of genocide, as also from the principles and rules concerning the
basic rights of human person, including protection from slavery and racial discrimination.vi

The facts of the Barcelona Traction Case do not give grounds for a pronouncement as the one
that the court made on the erga omnes obligations and the impact it produced. This actually is
the main basis for criticism and calls for a brief summary of the case and a comprehensive
analysis on the significance of the pronouncement. The case arose out of the adjudication in a
bankruptcy case by a Spanish court of the Barcelona Traction Light and Power Company,
Limited, a Canadian company. Belgium filed an application seeking reparation for damages
sustained by Belgium nationals, shareholders in the company, as a result of acts contrary to
international law committed by organs of the Spanish state. The Spanish Government raised
four preliminary objections to the application (Ragazzi 2002: 3). The court rejected the first and
the second objections concerning the jurisdiction of the court and ruled on the merits of the third
and the fourth objections. The third objection of the Spanish Government was that the Belgium
Government lacked capacity to submit any claim for wrongs done to a Canadian company even
if the shareholders were Belgian.

On the third preliminary question, the court reasoned that an injury to the shareholder’s interests
did not confer rights on the shareholder’s national state to exercise diplomatic protection for the
purposes of seeking redress. That right is conferred on the national state of the company alone.
No international law rule expressly confers such a right on the shareholder’s national state. The
possession by the Belgian Government of a right of protection was a prerequisite for
examination, and since no jus standi before the Court had been established, it was not for the
Court to pronounce upon any other aspect of the case.

As seen above, since the Court dealt with Belgium’s right to jus standi in seeking compensation
for Belgian shareholders, the erga omnes obligations pronouncement is not strongly related to
the merits of the case. This calls for us to first address briefly the issue of jus standi and actio
popularis and, more extensively, the criticisms of the pronouncement (Ragazzi 2002: 7).
Erga omnes and actio popularis.

According to the pronouncement in the Barcelona Traction case, all states have legal interests
in the protection of the rights involved in the pronouncement (Jennings and Watts 1997: 5). The
pronouncement in the Barcelona Traction case is stated in regard to erga omnes obligations in
the line of reasoning related to standing (jus standi), and this raises the issue of the existence of
actio popularis in international law.

The concept of actio popularis derives from Roman law and indicates an action brought by a
citizen asking the court to protect a public interest, without any need to show an individual
interest in pursuing its claim (Hsiung 2004: 19).

However, the International Court of Justice in the South West Africa case held that proceedings
in defence of legal rights and interests require those rights or interests to be clearly vested in
those who claim them and that actio popularis is not known to international law as it stands at
present (Jennings and Watts 1997: 5). Although the concepts of actio popularis and erga omnes
are in some respects associated, the two are distinct and independent of each other.

Criticism of the pronouncement

The judgment has not been immune from criticism. Some scholars have raised doubts as to
whether this reference to obligations erga omnes was necessary or appropriate for the court to
reach its conclusion on jus standi.

McCaffrey, a former member of the International Law Commission, has expressed the view that
this reference was a “gratuitous statement” which was made in the context of a case “whose
facts and legal issues hardly required such a pronouncement” (Ragazzi 2002: 5). Mann has
written that obiter dicta like that on the obligations erga omnes “convey the impression of having
been studiously planted in the text or artificially dragged into the arena” and that it was a
reaction to the I.C.J judgment on the South West Africa case.vii

As it appears from the facts of the case and from the main criticisms of the judgment, we have
to reflect on the distinction between ratio decidendi and obiter dicta in international law and,
more specifically, in terms of the pronouncement of the Court in regards to erga omnes
obligations.

Since the basis for criticisms of the pronouncement are mainly based on the distinction between
ratio decidendi and obiter dicta, an analysis of the distinction follows.

Article 38 (d) of the Statute of the I.C.J defines judicial decisions as subsidiary means for the
determination of rules of law, while Article 59 reads that: “the decision of the Court has no
binding force except between the parties and in the respect of that particular case
(Shahabudeen 1997: 55-107). Strictly speaking, the I.C.J. does not observe a doctrine of
precedent but strives to maintain judicial consistency (Brownlie 2003: 21).
In a situation where the doctrine of precedent is not or cannot be strictly observed, and the erga
omnes pronouncement of the court is not ratio decidendi but obiter dicta, it is legitimate to try to
determine its importance.

Ratio decidendi is a term in widespread use in common law municipal legal systems, denoting
general reasons or grounds given for a judicial or arbitral decision (Grant and Barker 2003:
416). According to the doctrine of precedent (stare decisis), the only part of a decision that is
binding for future cases is the ratio decidendi (Grant and Barker 2003: 416). It essentially
includes the principal proposition or propositions of law determining the outcome of a case, or
the only legal considerations necessary for the decision of a particular case (Brownlie 2003: 42).
This should constitute the precedent for future cases containing similar facts and circumstances.
Obiter dicta would than include all the propositions of law which are not part of the ratio
decidendi. According to Brownlie, obiter dicta are those lesser propositions of law stated by
tribunals or individual members of tribunals, i.e., propositions not directed to the principal matter
in issue (Brownlie 2003: 42).

This distinction should not be especially significant for I.C.J. decisions, because if the court
draws the distinction this would mean that it accepts the doctrine of stare decisis at a theoretical
level (Shahabudeen 1997: 152). However, individual judges have regarded some of the reasons
given by the court as ratione decidendi and others as obiter dicta (Shahabudeen 1997: 155). In
fact, Judge de Castro referred to what he considered to be “the obiter reasoning expressed” on
the erga omnes pronouncement of the court on the Barcelona Traction case (Shahabudeen
1997: 155). Judge Lachs, too, later observed of the erga omnes pronouncement that the
statement “was not necessary in the judgment, but it was a good opportunity to nail down
certain provisions of the law and indicate where states are obliged to act vis-à-vis the
international community as a whole” (Shahabudeen 1997: 159). Thus it is difficult to deny the
existence of the distinction in the jurisdiction of the court.

To sum up, there is strong recognition that the pronouncement of the court is obiter dicta.
However, this conclusion on its own does not diminish the value of the pronouncement in itself.

As noted by Ragazzi, the value of each obiter dicta, or even of a ratio decidendi, can be only
based on the merits of a pronouncement that considers the background, content and
consequent development of the pronouncement itself. This conclusion applies especially to our
case.

The significance of the pronouncement concerning erga omnes obligations

In order to determine the value of the pronouncement, an analysis is required of the

background, content and consequent development of the pronouncement.

The very expression “obligations erga omnes” predates the dictum of the International Court.
For example, among others, Lachs, a member of the International Law Commission, used the
term erga omnes in the course of a debate on draft Article 62 of the Vienna Convention on the
Law of Treaties (treaties providing for the obligations or rights of third states) (Ragazzi 2002: 8).
Lachs was elected a judge and took part in the decision on the Barcelona Traction case. The
pronouncement names four erga omnes obligations: the outlawing of acts of aggression; the
outlawing of genocide; protection from slavery; and protection from racial discrimination. Why
did the Court enumerate exactly these specific examples and not others? When analysed, the
examples will justify their presence in the pronouncement since their position has been well
established in international law and has developed from numerous treaties, judicial decisions,
state practice, declarations and resolutions, etc., which have evolved to customary rules of
international law of a peremptory character. The brief summary that follows of each of the four
erga omnes obligations will serve to shed light on their importance.

a. The outlawing of acts of aggression

The outlawing of acts of aggression is the first example of the dictum (Ragazzi 2002: 5). The
United Nations Charter gives the basic framework on the issue of the use of force.vii Thus,
Article 2, paragraph 4 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 term ‘aggression’ is not stated in the Article, suggesting that not all forms of illegal use of
force amount to aggression. According to Article 1 of UN General Assembly Resolution 3314,
adopted by consensus in 1974, “aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations, as set out in the definition”
(Jennings and Watts 1997: 429). During the work of codification of the law of treaties, the
prohibition of aggression and the prohibition of the use of force were actually the most cited
example of peremptory norms, or rules jus cogens norms. (Jus cogens is defined as: “a
peremptory norm of general international law 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.”)ix While in the Barcelona Traction case the outlawing of acts of aggression is
mentioned as an erga omnes obligation, I.C.J. in the case of Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America)x stated that the prohibition of
the use of force as mentioned in the Charter has achieved the status of customary international
law and called it a “fundamental or cardinal principle of such law”.xi Judge Sette-Camara filed a
separate opinion in which he named the prohibition of use of force a peremptory rule of
international law.xii

Therefore, from the character of the prohibition of use of force, which is widely recognized as a
jus cogens norm it is incontrovertible that the prohibition of aggression is valid erga omnes, i.e.,
it is opposable to all states without exception and affects the interests of all (Ragazzi 2002: 74-
79).

b. The outlawing of genocide

Governments and human rights organizations have often termed genocide the most heinous of
international crimes (Ratner and Abrams 2001: 26-46; The origins of the term genocide can be
traced back to the Second World War barbarism of the Holocaust. Apparently it was a Polish
Lawyer, Raphael Lemkin, who coined the term genocide in 1944. For an insightful discussion on
genocide, see Power 2007). The first official documents related to genocide can be traced to the
Nuremberg trials. The principles proclaimed in Nuremberg were recognized as principles of
international law by Resolution 95, unanimously adopted by the General Assembly of the United
Nations. Then the Convention for the Prevention and Punishment of Genocide was introduced.
Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide reads:

“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of
war, is a crime under international law which they undertake to prevent and to punish.”xiii

Today there is wide support for the view that the customary rule against genocide, like the rule
outlawing acts of aggression, belongs to jus cogens (Cassese 2003: 98).

In addition, at the level of state responsibility it is now widely recognized that customary rules on
genocide impose erga omnes obligations on all member states of the international community,
granting the right to require that acts of genocide be discontinued (Cassese 2003: 98).

In the case of the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), both parties referred to the
concept of obligations erga omnes.xiv The Court adopted the view that territorial restrictions do
not apply to rights and obligations that are erga omnes (Brownlie 2003: 568).

“The rights and obligations enshrined by the [Genocide] Convention are rights and obligations
erga omnes. The Court notes that the obligation each State thus has to prevent and to punish
the crime of genocide is not territorially limited by the Convention”.xv
The other important I.C.J. opinion related to genocide is the Advisory Opinion on the Genocide
Convention.xvi In November 1950, the General Assembly asked the Court to give an advisory
opinion on certain questions relating to reservations relating to the Genocide Convention
(Ragazzi 2002: 98). The I.C.J. remarked that the parties to the Genocide Convention were able
to make reservations, but not all kind of reservations indiscriminately (Ragazzi 2002: 100). The
court further declared that the principles underlying the Genocide Conventions are principles
which are recognized by civilized nations as binding on states, even without any conventional
obligation.xvii

In the Barcelona Traction case the Court distinguished between two kinds of obligations while
addressing the issue of legal standing; whereas in the advisory opinion on the Genocide
Convention, the International Court was addressing an issue relating to the law of treaties
(Ragazzi 2002: 102).

The universal opposability of the prohibition of genocide in the International Court’s advisory
opinion on the Genocide Convention presents clear elements of analogy with the dictum on
obligations erga omnes with respect to both its substance and terminology, and the advisory
opinion may be regarded as a “precedent” of the dictum on obligations erga omnes (Ragazzi
2002: 104).

c. Protection from slavery

International efforts to abolish slavery are more than two centuries old, leading to some eighty
conventions and documents on the subject (Ratner and Abrams 2001: 112-116).

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 (Ragazzi 2002: 106). The emergence of the
prohibition of slavery and the slave trade can be well explained through the Enterprise and the
Lawrence cases (Ragazzi 2002: 107).

Enterprise, an American brig, was sailing in 1835 from the District of Columbia to South
Carolina with a large number of slaves on board. The ship entered a port in Bermuda due to
some problems it encountered on the journey. The captain was served a writ of habeas corpus
requiring his appearance before the court and the production of the slaves. The British
commissioner noted that when a vessel with a cargo of slaves travels out of a territory where a
law protecting slavery prevails, then the natural right of the slaves to freedom revives. Most of
the slaves chose to remain on shore since they were told that they were free. The United States
then claimed compensation for the loss suffered under the exclusive jurisdiction rule, which
applied to the ship even if the vessel was forced by unavoidable circumstances into a port of a
foreign country. The umpire of the case, Mr. Bates, noted that the Enterprise had entered the
port in distress and therefore had an absolute right to protection under the law of nations and
the laws of hospitality and of compensation. He noted that it would have been different if, at the
time of the American claim, slavery could be regarded as prohibited under international law, but
it could not.

The Lawrence, an American brig on voyage from Cuba to Cabenda at the end of 1848, was
forced into the Freetown port in Sierra Leone. The Lawrence was considered to be a slave-
trading vessel because it was well equipped for the slave trade. The same umpire, Mr. Bates,
13 years after the Enterprise case, decided that the owners of the Lawrence had no claim
because at the time of condemnation the African slave trade “was contrary to the laws of
nations” and prohibited by all civilized nations and by the laws of the United States (Ragazzi
2002: 112).

The reasoning employed by Mr. Bates drew the attention of the International Law Commission
in its work on the law of state responsibility. The question set forth was: Would a modern umpire
decide in the same way if the same case arose again? (Ragazzi 2002: 113) The answer is ‘no’,
because today slavery and the slave trade are prohibited not only by the law of “civilized
nations”, but also by an international rule that the international community as a whole regards as
peremptory (jus cogens) (Ragazzi 2002: 115). Slavery and the slave trade, once lawful
practices in international society, have gradually become unlawful and are now prohibited erga
omnes . (Ragazzi 2002: 116). 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 (Ratner and Abrams
2001: 26-46; 114).

d. Protection from racial discrimination

A convenient starting-point from which to examine this obligation is the principle that all human
beings are equal (Ragazzi 2002: 118). The Charter of the United Nations and the Universal
Declaration of Human Rights, as well as many other international and regional instruments and
municipal law constitutional provisions, provide for basic provisions on equality. Racial
discrimination is universally rejected as an inadmissible derogation from this principle of
equality. Specific provisions against racial discrimination can be found in general and regional
treaties, including: the International Covenant on Civil and Political Rights (in particular, the
Preamble and Article 2); the International Covenant on Economic, Social and Cultural Rights (in
particular, Articles 2, 7 and 13); as well as International Declarations such as the Final Act of
Helsinki, Article 7, etc (Ragazzi 2002: 118).

A decisive step in the emergence of a general prohibition on racial discrimination was taken in
the 1960s with the adoption of the United Nations Declaration on the Elimination of All Forms of
Racial Discrimination, and then again in a Convention with the same title. Article 1, paragraph 1
of this Convention defines 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”.

Furthermore, even the I.C.J. in its advisory opinion on Namibia affirmed that South Africa, as the
former mandatory for South West Africa, was bound to respect human rights and fundamental
freedoms for all without racial discrimination, any contrary policy being a flagrant violation of the
purposes and principles of the Charter (Ragazzi 2002: 118).

Today there is overwhelming support for the view that the prohibition of racial discrimination is
the subject of an international custom and that this international custom belongs to jus cogens
(Brownlie 2003: 489). Moreover, in his dissenting opinion on the case of South West Africa,
Judge Tanaka discussed the prohibition of racial discrimination and concluded that that the
prohibition of racial discrimination, which is in itself contrary to the principle of equality among
human beings, is subject to a prohibition opposable to all states (Ragazzi 2002: 130). Thus it
shares the same peremptory character as the rules giving rise to other obligations erga omnes
listed by the International Court in its judgment in the Barcelona Traction case.

Consequent development

After the pronouncement, references to the concept of obligations erga omnes have occurred
both in the judgments and advisory opinions rendered by the International Court, some of which
will also be addressed in the following pages.xviii In his dissenting opinion on the East Timorxix
case (where references to erga omnes obligations were also made), Judge Weeramantry listed
the following cases as those in which the International Court dealt with the question of
obligations erga omnes: Northern Cameroon, South West Africa, Nuclear Tests, Hostages, and
Border and Transborder Armed Actions (Nicaragua v. Honduras).

However, 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.xx

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.xxi 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.xxii 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.xxiii

Since the right to self determination, according to some scholars, is a jus cogens norm
(Brownlie 2003: 489) 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 clearly refers to the prohibition of torture as an erga omnes obligation.
Furthermore, the prohibition of torture is also frequently referred to as a jus cogens norm (a
norm of a peremptory character) in international law. Again, by drawing analogy with the
obligations specified in the Barcelona case, it is safe to add the erga omnes obligation of the
prohibition of torture to the group of well established erga omnes obligations in international law
to date.

Conclusion

The significance of erga omnes obligations as analysed above has been growing tremendously
in international law. The Court’s pronouncement on the Barcelona Traction case on obligations
erga omnes, while obiter dictum, is relevant and has been gaining increasing significance ever
since.
The concept was not unknown and had evolved prior to the pronouncement. Moreover, the
examples enumerated by the court originated from peremptory norms of international law, for
the character of which there is overwhelming acceptance.

The concept of erga omnes obligations was used on numerous occasions in the pleadings of
parties and by the Court after it first appeared in the Barcelona Traction case.

Last but not least, the concept is further recognized and established by adding the respect of
the right to self-determination to the group of erga omnes obligations and the erga omnes
obligation on the prohibition of torture.

This paper presents strong arguments that erga omnes obligations have enabled the
International Court of Justice to make use of, as Sir Herch Lauterpacht said of the advisory
opinion on the Genocide Convention, “judicial legislation” (Shaw 2003: 24-26; 48-53) for
obligations on states that are by “their nature” the concern of the international community as a
whole, on the character of which a decision is given by the I.C.J. as the primary judicial body in
international law.

The importance of the existence of erga omnes obligations lies in the attempt to go beyond
reciprocal relations among states based on consent.

Although the future of the concept and its further evolution is unclear due to its potential
implications for relations among states, there are strong arguments that the concept has
established itself in international law and that there exist prospects for its own future
development as well as implications for international law by doing so.