Erga omnes

In legal terminology, erga omnes rights or obligations are owed toward all. Erga omnes is a Latin phrase which means "towards all" or "towards everyone". For instance, a property right is an erga omnes entitlement and therefore enforceable against anybody infringing that right.

An erga omnes right can be distinguished from a right based on contract, which is unenforceable except against the contracting party.

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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^[1] 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.^[2]^[3] The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case^[4] [(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 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.^[5] 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".^[6]
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.^[7]

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.^[8]

References

^ Hathaway, Oona A.; Mills, Maggie; Poston, Thomas M. (2023-11-08). "War Reparations: The Case for Countermeasures". Stanford Law Review. 76 (5). Retrieved 2023-12-07.
^ Hook, Kristina; Diamond, Yonah (2023-08-23). "The case for seizing Putin regime assets". Atlantic Council. Retrieved 2023-12-07.
^ "Serious Breaches of Obligations under Peremptory Norms of General International Law" (PDF). United Nations. 2001. Retrieved 25 December 2023.
^ Simma, Bruno; Paulus, Andreas L. (1998). "The 'International Community': Facing the Challenge of Globalization". European Journal of International Law. 9 (2): 266–277. doi:10.1093/ejil/9.2.266. ISSN 0938-5428.
^ Legal consequences of the construction of a wall in the Occupied Palestinian Territories art. 88; 9 July 2004
^ Questions relating to the Obligation to Prosecute or Extradite. International Court of Justice. 20 July 2012, para 69.
^ Order on provisional measures. International Court of Justice. 23 January 2020, paras 39-42.
^ 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.

This page was last edited on 3 March 2024, at 11:42

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