NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

International Court of Justice Contentious Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international 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.
North Sea Continental Shelf Cases (commons.wikimedia.org)

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 jurisand 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

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking to establish the illegality of Executive
Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating
in the prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding with the
case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also our
local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence
petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal
order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State of
America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the
Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as
part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential
and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces as
upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may remain pending which
should be disposed of as in time of war. An importance incident to a conduct of war is the adoption of measure by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in the language of a writer a military
commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice or military occupation
up to the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial
and punishment of war criminal through the issuance and enforcement of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It
cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State
and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government
may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United
States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the
treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes
against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime
of treason committed during then Commonwealth because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and
punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court
which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is
common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of
legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that United
States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be
allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of her enemies. The least that we
could do in the spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as
prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the
crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under the
provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of such
Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ 1 is a public international law case,
concerning the abuse of rights.

Facts[edit]

Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated in Canada, with Toronto headquarters, that made and supplied
electricity in Spain. It had issued bonds to non-Spanish investors, but during the Spanish Civil War (1936-9) the Spanish government refused to allow
BTLP to transfer currency to pay bondholders the interest they were due. In 1948 a group of bondholders sued in Spain to declare that BTLP had
defaulted on the ground it had failed to pay the interest. The Spanish court allowed their claim. The business was sold, the surplus distributed to the
bondholders, and a small amount was paid to shareholders. The shareholders in Canada succeeded in persuading Canada and other states to complain
that Spain had denied justice and violated a series of treaty obligations. However, Canada eventually accepted that Spain had the right to prevent
BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were owned by Belgians, and the Belgian government
complained, insisting the Spanish government had not acted properly. They made an initial claim at the International Court of Justicein 1958, but
later withdrew it to allow negotiations. Subsequent negotiations broke down, and a new claim was filed in 1962. Spain contended that Belgium had
no standing because BTLP was a Canadian company.

Judgment[edit]

The International Court of Justice held that Belgium had no legal interest in the matter to justify it bringing a claim. Although Belgian shareholders
suffered if a wrong was done to the company, it was only the company's rights that could have been infringed by Spain's actions. It would only be if
direct shareholder rights (such as to dividends) were affected, that the state of the shareholders would have an independent right of action. It was a
general rule of international law that when an unlawful act was committed against a company, only the state of incorporation of the company could
sue, and because Canada had chosen not to, this was the end. The idea of a "diplomatic protection" of shareholders was unsound because it would
create confusion and insecurity in economic relations as shares are 'widely scattered and frequently change hands'. The court also said that a state is
bound to give the same legal protection to foreign investments and nationals, either for natural or legal persons, when it admits them to its territory.
Padilla Nervo J said the following.

“ The history of the responsibility of States in respect to the treatment of foreign nationals is the history of abuses,
illegal interference in the domestic jurisdiction of weaker States, unjust claims, threats and even military
aggression under the flag of exercising rights of protection, and the imposing of sanctions in order to oblige a
government to make the reparations demanded.

Special agreements to establish arbitral tribunals were on many occasions concluded under pressure, by political,
economic or military threats.

The protecting States, in many instances, are more concerned with obtaining financial settlements than with
preserving principles. Against the pressure of diplomatic protection, weaker States could do no more than to
preserve and defend a principle of international law, while giving way under the guise of accepting friendly
settlements, either giving the compensation demanded or by establishing claims commissions which had as a
point of departure the acceptance of responsibility for acts or omissions, where the government was, neither in
fact nor in law, really responsible.

In the written and in the oral pleadings the Applicant has made reference, in support of his thesis, to arbitral
decisions of claims commissions—among others those between Mexico and the United States, 1923.

These decisions do not necessarily give expression to rules of customary international law, as ... the Commissions
were authorized to decide these claims "in accordance with principles of international law, justice and equity,"
and, therefore, may have been influenced by other than strictly legal considerations. ...

Now the evolution of international law has other horizons and its progressive development is more promising, as
Rosenne wrote:

There is prevalent in the world today a widespread questioning of the contemporary international law.
This feeling is based on the view that for the greater part international law is the product of European
imperialism and colonialism and does not take sufficient account of the completely changed pattern
of international relations which now exists....

Careful scrutiny of the record of the Court may lead to the conclusion that it has been remarkably perceptive of
the changing currents of international thought. In this respect it has performed a major service to the
international community as a whole, because the need to bring international law into line with present-day
requirements and conditions is real and urgent.

The law, in all its aspects, the jurisprudence and the practice of States change as the world and the everyday
requirements of international life change, but those responsible for its progressive evolution should take care that
their decisions do, in the long run, contribute to the maintenance of peace and security and the betterment of
the majority of mankind.

In considering the needs and the good of the international community in our changing world, one must realize
that there are more important aspects than those concerned with economic interests and profit making; other
legitimate interests of a political and moral nature are at stake and should be considered in judging the behavior
and operation of the complex international scope of modern commercial enterprises.

It is not the shareholders in those huge corporations who are in need of diplomatic protection; it is rather the
poorer or weaker States, where the investments take place, who need to be protected against encroachment by
powerful financial groups, or against unwarranted diplomatic pressure from governments who appear to be
always ready to back at any rate their national shareholders, even when they are legally obliged to share the risk
of their corporation and follow its fate, or even in case of shareholders who are not or have never been under the
limited jurisdiction of the State of residence accused of having violated in respect of them certain fundamental
rights concerning the treatment of foreigners. It can be said that, by the mere fact of the existence of certain
rules concerning the treatment of foreigners, these have certain fundamental rights that the State of residence
cannot violate without incurring international responsibility; but this is not the case of foreign shareholders as
such, who may be scattered all over the world and have never been or need not be residents of the respondent
State or under its jurisdiction.

In the case of the Rosa Gelbtrunk claim between Salvador and the United States, the President of the arbitration
commission expressed a view which may summarize the position of foreigners in a country where they are
resident. This view was expressed as follows:

A citizen or subject of one nation who, in the pursuit of commercial enterprise, carries on trade within
the territory and under the protection of the sovereignty of a nation other than his own, is to be
considered as having cast in his lot with the subjects or citizens of the State in which he resides
 and carries on business. (Italics added.)

"In this case," Schwarzenberger remarks, "the rule was applied to the loss of foreign property in the course of a
civil war. The decision touches, however, one aspect of a much wider problem: the existence of international
minimum standards, by which, regarding foreigners, territorial jurisdiction is limited." ...

Much has been said about the justification for not leaving the shareholders in those enterprises without
protection.

Perhaps modem international business practice has a tendency to be soft and partial towards the powerful and
the rich, but no rule of law could be built on such flimsy bases.

Investors who go abroad in search of profits take a risk and go there for better or for worse, not only for better.
They should respect the institutions and abide by the national laws of the country where they chose to go.

UN-Human Rights Treaties

In this section, you will find basic information on the most important international human rights treaties at UN
level.
o UN-Human Rights Conventions: getting started
Overview of the universal human rights treaties of the UN
o ICESCR (Economic, Social and Cultural Rights)
International Covenant on Economic, Social and Cultural Rights
o ICCPR (Civil and Political Rights)
International Covenant on Civil and Political Rights
o ICERD (Racial Discrimination)
International Convention on the Elimination of All Forms of Racial Discrimination
o CAT (Prevention of Torture)
Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
o CEDAW (Women's Rights)
Convention on the Elimination of Discrimination against Women
o CRC (Children's Rights)
Convention on the Rights of the Child
o ICRMW (Migrant Workers' Rights)
International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families
o CRPD (Disabled Persons)
Convention on the Rights of Persons with Disabilities
o CPED (Enforced Disappearance)
International Convention for the Protection of All Persons from Enforced Disappearance
o Further conventions in the domain of human rights
Prevention of Genocide / Refugee Convention / Conventions against Human Trafficking / Arms Trade Treaty /
Rome Statute
o Declarations, resolutions, world conferences at a universal level
o UN human rights instruments in emergence.

Customary international law is an aspect of international law involving the principle of custom. Along
with general principles of law and treaties, custom is considered by the International Court of
Justice, jurists, the United Nations, and its member states to be among the primary sources of
international law.

Many governments accept in principle the existence of customary international law, although there
are differing opinions as to what rules are contained in it.

In 1950, the International Law Commission listed the following sources as forms of evidence to
customary international law: treaties, decisions of national and international courts, national
legislation, opinions of national legal advisors, diplomatic correspondence, and practice of
international organizations.[1]

Recognition of customary international law[edit]

The International Court of Justice Statute defines customary international law in Article 38(1)(b) as
"a general practice accepted as law".[2] This is generally determined through two factors: the general
practice of states and what states have accepted as law.[3]

There are several kinds of customary international laws recognized by states. Some customary
international laws rise to the level of jus cogens through acceptance by the international community as
non-derogable rights, while other customary international law may simply be followed by a small
group of states. States are typically bound by customary international law regardless of whether the
states have codified these laws domestically or through treaties.

Jus cogens[edit]
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of
international law which is accepted by the international community of states as a norm from which
no derogation is ever permitted (non-derogable). These norms are rooted from Natural Law
principles,[4] and any laws conflicting with it should be considered null and void.[5] Examples include
various international crimes; a state violates customary international law if it permits or engages
in slavery, torture, genocide, war of aggression, or crimes against humanity.[6]

Jus cogens and customary international law are not interchangeable. All jus cogens are customary
international law through their adoption by states, but not all customary international laws rise to the
level of peremptory norms. States can deviate from customary international law by enacting treaties
and conflicting laws, but jus cogens are non-derogable.

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 omnesobligations 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 omnesobligations 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 dictaare 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 omnesobligations 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 omneslisted 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 omnesobligation.
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.