Erga Omnes Obligation

Atul Alexander
WBNUJS
 Erga Omnes Obligation
• Obligation towards International Community.
• Can enable the International Court of Justice, to go beyond the
traditional reciprocal basis of consent.
• The world court initiated ‘Erga Omnes’ debate in the Barcelona
Traction Case as “the outlawing of acts of aggression; the
outlawing of genocide; protection from slavery; and protection
from racial discrimination. 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.
• Subsequent development of the obligation also on the
context of ‘Self-Determination’ (East Timor Case). The
Advisory Opinion on the Legal Consequences of the
Construction of a Wall in Occupied Palestinian Territory.
• It is similar to actio popularis in domestic law without
showing individual claim/having any interest.
• The Barcelona Traction was merely an obiter dicta and
not Ratio Decidendi.
• Why in the Barcelona Traction Case only four erga
omnes obligations?
• A promise for mankind.
• Trinidade – Superior value but not tangible.
• South West Africa Case (1967)- The ICJ declined
the standing of Ethiopia and Liberia, didn’t
recognize the claim had to be dismissed. Which
James Crawford termed as ‘distasteful’.
• Erga Omnes – Responding to law of
Enforcement.
 How is Erga Omnes Obligation Enforced?

• a) Judicial Enforcement
( They are not bilateral all state have legal interest and
corresponding protection).
The concept of ‘Erga Omnes’ is endorsed through Article
48 of draft article on State Responsibility which reflect
the language of the Barcelona Traction Case.
b) Countermeasure
( For the breach of Erga Omnes obligation,
countermeasure are not Judicial act, they are response
to a wrongful act).
 Why States Rarely Invoke ‘Erga Omnes
Obligations’
• States believe it would take them out of the comfort zone. ( Jurisdictional
hurdle).
• A State is not acting in an individual capacity, but acting on behalf of
International Community as a whole.
• What is the distinction between Article 42 and 48 of Draft Articles on State
Responsibility? Article 48 is based on the idea that in case of breaches of
specific obligations protecting the collective interests of a group of States or
the interests of the international community as a whole, responsibility may
be invoked by States which are not themselves injured in the sense of article
48. Obligation protecting a collective interest of the group may derive from
multilateral treaties or customary international law. Such obligations have
sometimes been referred to as “obligations erga omnes partes”.
• But Article 48 does not propose these interests? Its left open and state
practice determines what constitutes ‘collective interest”.
• The State which is not injured can usually claim
‘declaratory judgment ie. cessation of the
wrongful act and not compensation’.
• States might also claim reparation in
circumstances, where the injured states are not
capable of doing so.
• Eg: Article 1 of the 4th Geneva Convention on
Protection of Victims- ‘respect and ensure
respect”.
• The erga omnes nature of an obligation, however,
indicates no clear superiority of that obligation over
other obligations.
• Erga omnes norms were not necessarily
distinguished by the importance of their substance.
They were norms with certain procedural features.
• The first para of Article 48 addresses ‘erga omnes
partes’ which stem from a treaty and para 2 is erga
omnes proper.
 To Whom the Erga Omnes to Owned?
• In the field of human rights and humanitarian law.
• The distinction between “bilateral” and erga omnes
obligations seems analogous to the domestic distinction
between contracts and public law obligations. In the latter,
the relationship is between the legal subject and then
public power. Even if a breach of the latter may violate an
individual interest, the capacity to react (as in most
criminal law) lies in the hands of public power.
• Consequences for the breach of erga omnes obligation
could mean non-recognition of the wrongful act ( Palestine
wall Opinion Case).
 Relationship Between Erga Omnes and Jus
Cogens
• Constant Source of confusion.
• All Jus Cogens norm constitute erga omnes
and not vice versa.
• Erga Omnes is procedural while Jus Cogens is
more about hierarchy of norms.
 Important Cases:

• East Timor Case (ICJ)

• Palestine Wall Opinion Case ( Advisory
Opinion, ICJ).
• Genocide Reservations Case (ICJ).
• Barcelona Traction (ICJ).