Erga omnes

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 invoke state responsibility in order to hold the responsible state legally liable and required to pay reparations. Erga omnes obligations attach when there is a serious breach of peremptory norms of international law like those against piracy, genocide and wars of aggression. 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]:

Examples

• In its advisory opinion of 9 July 2004, the International Court of Justice found "the right of peoples to self-determination" to be a right erga omnes. The finding referred to article 22 of the Covenant of the League of Nations.
• In its judgment of 20 July 2012 between Belgium and Senegal, the International Court of Justice found that in relation to the Convention against Torture, "any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes".
• In its order on provisional measures of 23 January 2020, the International Court of Justice found that The Gambia had prima facie standing in the Rohingya genocide case that it had brought against Myanmar on the basis of the Genocide Convention.
• In its advisory opinion of 19 July 2024 on "Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem", the International Court of Justice found that in view of Israel's violations of certain obligations erga omnes, among them the obligation to respect the right of the Palestinian people to self-determination, all States and international organizations are "under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory."

International Law Commission

The UN International Law Commission has codified the erga omnes principle in its draft articles on state responsibility. They allow all states to invoke a state responsibility that another state incurred because of its unlawful actions if "the obligation breached is owed to the international community as a whole". The ILC refers directly in its comments to the article to the erga omnes principle and to the ICJ's acceptance of it in the Barcelona Traction case.

References

References

1. (1956). "Le rôle du requérant dans la procédure prévue par la Convention européenne des droits de l'homme". RHDI.
2. (2023-11-08). "War Reparations: The Case for Countermeasures". Stanford Law Review.
3. (2023-08-23). "The case for seizing Putin regime assets".
4. (2001). "Serious Breaches of Obligations under Peremptory Norms of General International Law".
5. (1998). "The 'International Community': Facing the Challenge of Globalization". [[European Journal of International Law]].
6. [http://www.unhcr.org/refworld/pdfid/414ad9a719.pdf ''Legal consequences of the construction of a wall in the Occupied Palestinian Territories''] art. 88; 9 July 2004
7. [https://www.icj-cij.org/public/files/case-related/144/144-20120720-JUD-01-00-EN.pdf Questions relating to the Obligation to Prosecute or Extradite]. ''International Court of Justice''. 20 July 2012, para 69.
8. [https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf Order on provisional measures]. ''International Court of Justice''. 23 January 2020, paras 39-42.
9. "Summary of the Advisory Opinion of 19 July 2024 {{!}} INTERNATIONAL COURT OF JUSTICE".
10. Report of the Commission to the General Assembly on the work of its fifty-third session (23 April – 1 June and 2 July– 10 August) A/56/10 (2001) II (Part Two) p. 127, para 8 and Jesper Jarl Fanø (2019). ''Enforcing International Maritime Legislation on Air Pollution through UNCLOS''. Hart Publishing. Ch. 18.