Erga omnes is
a Latin phrase
which means "towards all" or "towards everyone". In legal
terminology, erga omnes rights or obligations are
owed toward all. For instance, a property
right is an erga omnes entitlement, and therefore
enforceable against anybody infringing that right. An erga omnes right
(a statutory right) can here be distinguished from a right based on contract,
unenforceable except against the contracting party.
International law
In international
law, it has been used as a legal term describing obligations owed
by states towards the community of states as
a whole. An erga omnes obligation exists because of the
universal and undeniable interest in the perpetuation of critical rights (and
the prevention of their breach). Consequently, any state has the right to
complain of a breach. Examples of erga omnes norms include piracy and genocide.
The concept was recognized in the International Court of Justice's
decision in the Barcelona
Traction case [(Belgium v Spain) (Second Phase) ICJ
Rep 1970 3 at paragraph 33]:
… an essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and
those arising vis-à-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 omnes. [at 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 the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law ... others
are conferred by international instruments of a universal or quasi-universal
character.
Examples
·
In its opinion of 9 July 2004, the
International Court of Justice found "the right of peoples to self-determination" to be a right erga
omnes.[1] The
finding referred to article 22 of the Covenant of the League of Nations.
The International Law Commission
The UN’s International Law Commission has
codified the erga omnes principle in its draft
articles on State responsibility as it, in article 48(1)(b) of
these articles, allows all States to invoke a State responsibility which
another State incurred due to its unlawful actions, if "the obligation
breached is owed to the international community as a whole". The ILC
refers directly in its comments to this article to the erga omnes principle and
the ICJ's acceptance of it in the Barcelona Traction case.[2]
A peremptory norm (also called jus cogens or ius cogens /ˌdʒʌs ˈkoʊdʒɛnz, ˌjʌs/;[1] Latin for
"compelling law") is a fundamental principle of international
law that is accepted by the international community of states as
a norm from which no derogation is
permitted.
There is no universal agreement regarding precisely which norms
are jus cogens nor how a norm reaches that status, but it is
generally accepted that jus cogens bans genocide,
maritime piracy,
enslaving in general (i.e. slavery as well as slave trade), wars of
aggression and territorial aggrandizement, torture and refoulement.[2] The latter two are evolving and
controversial as they rest mainly on the definition of torture in regards to
criminal sentencing. If sentencing is not cruel, inhuman or degrading but
arbitrary or disproportionate convictions are imposed then a state's refoulement —
where limited to the returning of unsubstantiated asylum claimants — may still
be lawfully conducted to many such countries which are juridically developing,
such as those lacking a clear separation of powers, with a relatively
heightened risk of political persecution and reports of unfair trials.
Status of peremptory norms under international law
Unlike ordinary customary law, which has traditionally
required consent and allows the alteration of its obligations between states
through treaties,
peremptory norms may not be violated by any state "through international
treaties or local or special customs or even general customary rules not
endowed with the same normative force".[3]
Discussions of the necessity of such norms could be traced back
as far as 1758 (in Vattel's The Law of Nations) and 1764 (in Christian Wolff's Jus Gentium), clearly
rooted in principles of natural law. But it was the judgments of the Permanent Court of International
Justice that indicate the existence of such a peremptory norm,
in the S.S. "Wimbledon" case in
1923, not mentioning peremptory norms explicitly but stating how state
sovereignty is not inalienable.[4]
Under Article 53 of the Vienna Convention on the Law of
Treaties, any treaty that conflicts with a peremptory norm is void.[5] The treaty allows for the emergence of
new peremptory norms,[6] but does not specify any peremptory
norms. It does mention the prohibition on the threat of use of force and on the
use of coercion to conclude an agreement:
A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international
law having the same character.[7]
The number of peremptory norms is considered limited but not
exclusively catalogued. They are not listed or defined by any authoritative
body, but arise out of case law and changing social and political attitudes.
Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes,
maritime piracy, genocide, apartheid, slavery,
and torture.
As an example, international tribunals have held that it is impermissible for a
state to acquire territory through war.[8][3]
Despite the seemingly clear weight of condemnation of such
practices, some critics disagree with the division of international legal norms
into a hierarchy. There is also disagreement over how such norms are recognized
or established. The relatively new concept of peremptory norms seems to be at
odds with the traditionally consensual nature of international law considered
necessary to state sovereignty.
Some peremptory norms define criminal offences considered to be
enforceable against not only states but also individuals. That has been
increasingly accepted since the Nuremberg Trials (the
first enforcement in world history of international norms upon individuals) and
now might be considered uncontroversial. However, the language of peremptory
norms was not used in connection with these trials; rather, the basis of
criminalisation and punishment of Nazi atrocities was that civilisation could
not tolerate their being ignored because it could not survive their being
repeated.
There are often disagreements over whether a particular case
violates a peremptory norm. As in other areas of law, states generally reserve
the right to interpret the concept for themselves.
Many large states have accepted this concept. Some of them have
ratified the Vienna Convention, while others have stated in their official
statements that they accept the Vienna Convention as "codificatory".
Some have applied the concept in their dealings with international
organizations and other states.
Examples
Execution of juvenile
offenders
The case of Michael
Domingues v. United States provides an example of an
international body's opinion that a particular norm is of a jus cogens nature.
Michael Domingues had been convicted and sentenced to death in Nevada,
United States for two murders committed when he was 16 years old. Domingues
brought the case in front of the Inter-American Commission of Human
Rights which delivered a non-legally binding report.[9] The United States argued that there was
no jus cogens norm that "establishes eighteen years as
the minimum age at which an offender can receive a sentence of death".[9] The Commission concluded that there was
a "jus cogens norm not to impose capital punishment on
individuals who committed their crimes when they had not yet reached 18 years
of age".[10]
The United States has subsequently banned the execution of
juvenile offenders. Although not necessarily in response to the above
non-binding report, the Supreme Court cited evolving international norms as one
of the reasons for the ban (Roper v. Simmons).
Torture
The International
Criminal Tribunal for the Former Yugoslavia stated in Prosecutor
v. Furundžija that there is a jus cogens for the
prohibition against torture.[3] It also stated that every state is
entitled "to investigate, prosecute and punish or extradite individuals
accused of torture, who are present in a territory under its
jurisdiction".[3] Therefore, there is universal
jurisdiction over torture. The rationale for this is that "the torturer
has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all
mankind".[11]
Peremptory norms protecting the environment
The UN's International Law Commission (ILC)
has worked on establishing principles for deeming when a norm can be considered
of having a jus cogens character.[12] The ILC established that it must (i)
be a norm of general international law; and (ii) it must also be
accepted and recognized by the international community of States as a whole as
a norm from which no derogation is permitted. The ILC has to this discussed
in its reports whether an environmental norm could fulfill these criteria and
be accepted as a peremptory norm within international law.[13] The ILC has also, in its comments to
the draft articles
on state responsibility referred to massive pollution of the
sea or atmosphere as being a violation which conflicts with peremptory norms.[14] The International Court of Justice (ICJ)
has also implicitly referred to the possible existence of environmental
peremptory norms protecting the environment. See for example its Advisory
Opinion in the Legality of the Threat or Use of Nuclear Weapons (1996)
and in the Gabčíkovo-Nagymaros project (1997)[15] The criteria established by the ICL and
ICJ for deeming an environmental norm as having a jus cogens character (that
the norm must prohibit massive transboundary pollution of the atmosphere which
can threaten human health and quality of life, including for generations
unborn) could cover international regulations protecting against the release of
Greenhouse Gasses (CO2 etc.) due to the adverse effects of global warming.[16]
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