Enforcing Obligations Erga Omnes in International Law

by Christian J. Tams

Overview

The concept of obligations erga omnes—obligations to the international community as a whole—has fascinated international lawyers for decades, yet its precise implications remain unclear. This book assesses how this concept affects the enforcement of international law. It demonstrates that all States are entitled to invoke obligations erga omnes in proceedings before the International Court of Justice, and to take countermeasures in response to serious erga omnes breaches. In addition, it suggests ways of identifying obligations that qualify as erga omnes.

Product Details

ISBN-13:	9780521128896
Publisher:	Cambridge University Press
Publication date:	02/04/2010
Series:	Cambridge Studies in International and Comparative Law , #44
Pages:	424
Product dimensions:	6.00(w) x 9.00(h) x 1.20(d)

About the Author

Christian J. Tams is Professor of International Law at the University of Glasgow.

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Introduction

1.

On 5 February 1970, after international legal proceedings spanning twelve years, and more than two decades after the dispute had arisen, the President of the International Court of Justice, Judge Bustamante y Rivero, read out the Court's judgment in the Case Concerning the Barcelona Traction, Light and Power Co., Ltd.¹ In that judgment, the Court held that, under international law, the nationality of corporations depended on national incorporation rules and that the violation of shareholders' rights did not normally constitute a separate breach of international law. The Barcelona Traction, Light and Power Co., having been incorporated under Canadian law, therefore was to be treated as Canadian, although 88 per cent of its shares were held by Belgian shareholders, and Belgium could not espouse claims of diplomatic protection. Highly controversial at its time, this holding remains the crucial judicial pronouncement on the nationality of corporations to date.²

A quick glance at the textbooks, however, reveals that Barcelona Traction is more than a controversial decision on the question of diplomatic protection of corporations. Two paragraphs of the judgment have taken on a life of their own and have inspired much discussion among States, courts, commissions, and commentators. Although they did not affect the rules of nationality, nor indeed any other central aspect of the case before the Court, these two paragraphs are among the most famous judicial pronouncements in the ICJ's history. Since they provide the starting-point of the present study, they merit to be quoted in full.

33. When a State admits into its territory foreign investments or foreign nationals, whether national or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment afforded to them. These obligations, however, are neither absolute nor unqualified. 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-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.

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 (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.³

In the three-and-a-half decades that have passed since 5 February 1970, this passage (which will be referred to as the Barcelona Traction dictum) has puzzled courts and commentators, including, at times, the ICJ itself. On its basis, international lawyers have begun to discuss the concept of obligations erga omnes, or obligations owed to the international community as a whole.⁴ The importance of this category of obligations, at least from a conceptual point of view, is widely acknowledged today. It is brought out with particular clarity in the International Law Commission's Articles on State Responsibility, adopted in 2001, which recognise its impact on the rules governing the invocation of responsibility,⁵ and expressly cite para. 33 of the Barcelona Traction judgment as evidence of a modern approach, pursuant to which State responsibility can no longer be reduced to bilateral relations between pairs of States.⁶ Many commentators are prepared to go beyond that. To them, the emergence of obligations erga omnes marks no less than a paradigm shift in international law. Delbrück sees it as part of 'the ongoing process of the constitutionalization of international law';⁷ to many others, obligations erga omnes (together with the related concept of peremptory norms) reflect 'a common core of norms essential for the protection of communal values and interests', which transcend the bilateralism and parochial State concerns dominating traditional international law.⁸ The Latin phrase 'erga omnes' thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law. Indeed, such is the degree of fascination that even sceptical commentators like Prosper Weil (whose earlier work is widely regarded as a highly influential critique) acknowledge that the concept is one of the 'pièces maîtresses de l'arsenal conceptuel du droit international d'aujord'hui.'⁹

As often, the reality is neither so clear nor so bright. One problem is readily admitted by commentators: whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice. The international community's failure effectively to react against humanitarian catastrophes, for example in Pol Pot's Cambodia or during the 1994 Rwandan genocide, makes solemn proclamations of a core of fundamental values ring hollow.¹⁰ Bruno Simma's much-quoted observation encapsulates this feeling of disappointment: 'Viewed realistically, the world of obligations erga omnes is still the world of the "ought" rather than of the "is"'.¹¹

This comment, however, only identifies part of the problem. It is difficult to disagree with the factual assessment - as will be shown in subsequent chapters, obligations erga omnes often have yet to enter 'the world of the "is"'. On the other hand, the observation seems to suggest that, as a matter of law, the erga omnes concept was fully developed, and that all that remained to be done was to implement it in practice. If this assessment were correct, further legal analysis would be unnecessary, and should be substituted by political pledges and action. Of course, however, it is not correct.¹² Difficulties with the erga omnes concept cannot be reduced to problems of implementation, or differences between is and ought, Sein and Sollen. Despite the wealth of analysis and the host of solemnly-worded statements, commentators continue to disagree about even the most fundamental issues. Having reviewed the ICJ's jurisprudence, Thirlway doubts whether the Barcelona Traction dictum is 'little more than an empty gesture'.¹³ On the basis of a rather summary reference to international practice, Rubin arrives at the same result.¹⁴ More specifically, there is no agreement about the scope of the erga omnes concept, and the legal consequences flowing from that status remain unclear. A brief glance at the jurisprudence of the ICJ and the many academic works addressing obligations erga omnes shows that the concept has become a sort of legal panacea; it is said to affect the legal regime of law enforcement, but also the pacta tertiis principle, the question of persistent objection, the territorial and temporal application of obligations, etc.¹⁵ Thirty-five years after the Barcelona Traction judgment (and quite apart from problems of implementation), there is thus very often no agreed ought and basic aspects of the legal regime of obligations erga omnes remain 'very mysterious indeed'.¹⁶ Given these controversies, it may be no coincidence that its implemetation has proven tortuous.

2.

The present study attempts to demystify aspects of the 'very mysterious'¹⁷ concept and thereby to facilitate its implementation. Apart from suggesting ways of identifying obligations erga omnes, it assesses whether all States, acting individually, are entitled to respond to breaches of such obligations by (i) instituting contentious proceedings before the International Court of Justice and (ii) resorting to countermeasures against the State responsible for the breach. The subsequent chapters will show that these questions are highly controversial, and involve a host of intricate issues, such as the interrelation between different sources of international law and the role of individual States in the process of safeguarding general interests of the international community. Nevertheless, they represent only some of the issues raised by the erga omnes concept. The decision to focus on identification, ICJ proceedings and countermeasures (and to ignore other questions) is to some extent due to space constraints. But it is also based on a number of assumptions about the function of the erga omnes concept, its influence on the rules governing responses against wrongful acts, and the role of States in the process of securing compliance with international law. Before proceeding with the actual analysis, these assumptions and caveats may be briefly explored, as they help situate countermeasures and ICJ claims within the broader framework, and delimit the scope of the present study. Four points seem particularly relevant.

The first relates to the function of the erga omnes concept. The present study focuses on the enforcement of international law, i.e. on attempts to induce a State to cease its wrongful conduct and to remedy its consequences.¹⁸ The underlying assumption is that obligations erga omnes first and foremost affect this area of the law.¹⁹ This assumption is widely shared, and finds support in the above-quoted Barcelona Traction dictum, especially the Court's recognition of the 'legal interest' of all States in seeing obligations erga omnes observed. However, it has already been mentioned that the erga omnes concept is said to influence a wide variety of other legal issues, often entirely unrelated to questions of law enforcement. These other erga omnes effects are not usually acknowledged in the legal literature, which is one of the factors mystifying the concept. The present study discusses, and puts forward a distinction between, different types of erga omnes effects to avoid these complications.²⁰ Beyond that, however, it remains focused on erga omnes effects in the field of law enforcement.

Secondly, by analysing countermeasures and ICJ proceedings, the present study focuses on what will be called measures of decentralised enforcement by States. In contrast, it does not address other forms of law enforcement, notably (i) means of direct recourse, by individuals, groups of individuals, or legal persons against infringements of their rights, or (ii) the institutional enforcement of obligations within the framework of international organisations. While the former distinction is relatively unproblematic, the line between institutional and decentralised enforcement may not always be easy to draw, as it requires an analysis of the often complex interplay between international organisations and their member States. For the purposes of the present study, institutional enforcement will be defined as a measure authorised by the agreement establishing an international organisation. In contrast, decentralised enforcement comprises measures that cannot be evaluated in the light of the institutional rules alone.²¹ Following this approach, decentralised enforcement thus covers measures taken by groups of States and may even include measures agreed within the framework of an international organisation, as long as these are directed against non-member States.²²

The decision to focus on decentralised enforcement by States is based on a simple assumption. It is assumed that State enforcement remains an essential aspect of protecting general interests under international law. This does not mean that enforcement by non-State actors was irrelevant. Quite to the contrary, direct recourse and institutional enforcement are increasingly relevant - few today would question the importance of systems of judicial protection of individuals in fields such as human rights or investment protection, or of institutional responses under Chapter VII of the United Nations Charter.²³ What is more, the different forms of enforcement are interrelated: as will be shown below, by conferring enforcement competence upon individuals or international organisations, States may have restricted their own enforcement rights.²⁴ Decentralised enforcement by States therefore is only one (and not necessarily the most appropriate)²⁵ way of securing compliance with general interests of the international community. The subsequent analysis, however, is based on the assumption that, at the present stage of international law, it remains indispensable, as it is the only form of enforcement that is independent of treaty-based mechanisms.

Thirdly, the present study focuses on two specific measures of decentralised law enforcement, namely countermeasures and ICJ proceedings. Again, this is not to suggest that these are the only forms of conduct by which States could enforce international law. The above definition of enforcement (comprising all attempts to induce another State to cease its wrongful conduct and to remedy its consequences) is sufficiently broad to cover a variety of responses, ranging from verbal protests to the use of military force.²⁶ The decision to focus on countermeasures and ICJ proceedings is based on a third assumption: these two forms of response are most likely to be affected by the erga omnes concept. There are two aspects to this assumption:

The first aspect relates to the function of the erga omnes concept. As stated above, the present study discusses how the concept affects the regime of law enforcement. Without prejudicing the subsequent analysis, it is understood that, if anything, it enhances the prospects of enforcement, and that States can respond against erga omnes breaches in a way not otherwise open to them. As a consequence, it would be rather beside the point to discuss enforcement measures that are always available to all States, irrespective of whether the breach, against which they are directed, affects an obligation erga omnes. This notably applies to measures that are intrinsically lawful and do not require any justification. Protests and verbal condemnations are one example; under modern international law; they are part of the regular informal diplomatic relations and can no longer be considered a (prima facie unlawful) interference in the domestic affairs of another State.²⁷ Unfriendly, but lawful, responses against breaches (retorsions) are the second type of response in point.²⁸ As will be shown below, the distinction between countermeasures and retorsions is often difficult to draw in practice. Both can be qualified as sanctions by which States seek to exercise pressure on other States.²⁹ Whether a specific response is prima facie unlawful and requires justification, or still unfriendly but lawful, can only be decided on a case-by-case basis, having regard to the applicable legal rules and taking account of the development of the law.³⁰ These practical difficulties notwithstanding, the distinction is crucial as a matter of law. By definition, responses can only qualify as retorsions if they remain intrinsically lawful. If it passes that test, it does not require to be justified, but can be taken by all States. Whether protests or retorsions are lawful, therefore, does not depend on the specific (erga omnes) character of the prior breach against which they are directed.

The second aspect concerns the areas of law in which the erga omnes concept is being invoked. Even when leaving aside measures always available to all States, enforcement can take various forms. Apart from countermeasures and judicial proceedings, States can notably seek to enforce general interests by forcible means or by exercising national jurisdiction over a particular form of conduct or a particular group of persons. Unlike retorsions and protests, these two forms of responses are not always available, and States wishing to react against breaches are required to justify their respective conduct under the rules of jurisdiction and those governing the use of force. There have indeed been suggestions in the literature that the erga omnes concept should provide such justification. As regards jurisdiction, writers have drawn a parallel between the erga omnes concept and the rules governing extra-territorial jurisdiction.³¹ Van Alebeek has even suggested a direct link between the two, arguing that 'the ... principle [of universal jurisdiction] should now be seen as having its theoretical basis in the concept of erga omnes obligations'.³²

As regards forcible measures, there have equally been claims that obligations erga omnes should be enforceable by way of humanitarian intervention. In the view of Michael Reisman, 'military intervention ... [even qualified as] a primary means of enforcing some erga omnes norms concerned with human rights.'³³

However, both statements are speculative and do not reflect the present state of international law. As regards the former, it cannot of course be excluded that the erga omnes concept should come to regulate questions of jurisdiction. Cases such as the Fur Seals Arbitration or the more recent Tuna II and Shrimps/Turtle disputes suggest that States indeed may seek to safeguard general interests by claiming a right to exercise extra-territorial jurisdiction.³⁴ At present, however, there is little indication that an alignment of the two concepts has taken or will take place. Historically, the law of jurisdiction has evolved as a distinct branch of international law and continues to be treated separately from the rules governing claims made on the international plane. In line with this development, the International Court, when recognising the legal interest of all States in seeing obligations erga omnes observed, discussed international claims, but did not make any statement, even inferentially, about the exercise of national jurisdiction.³⁵ As regards State practice, States asserting a right to exercise extra-territorial jurisdiction have not relied on the erga omnes concept, nor have national courts applying principles of universal jurisdiction.³⁶ The link between jurisdiction and obligations erga omnes thus seems more tenuous than van Alebeek's statement suggests.³⁷

The same applies to measures involving the use of force. As will be shown below,³⁸ traditional instances of humanitarian intervention do form part of the historical context in which obligations erga omnes have to be seen. However, under modern international law, the legality of measures involving the use of force is first and foremost governed by the UN Charter.³⁹ Whether humanitarian intervention is permissible under present-day international law therefore is almost exclusively discussed with respect to article 2, para. 4 UNC, which - following the two most prominent arguments advanced by supporters - either does not prohibit the use of force for humanitarian purposes,⁴⁰ or recognises a non-written exception based on customary international law.⁴¹ In contrast, debates following the recent military operations in Kosovo, Afghanistan and Iraq suggest that the erga omnes concept is of limited (or no) relevance to the dispute. States

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© Cambridge University Press

Table of Contents

Preface; Notes on citation; List of abbreviations; Table of cases; Introduction; Part I. Background to the Erga Omnes Concept: 1. Clarifications; 2. Traditional approaches to standing; Part II. Legal issues raised by the Erga Omnes Concept: 3. Distinguishing types of Erga Omnes effects; 4. Identifying obligations Erga Omnes; 5. Standing to Institute ICJ Proceedings; 6. Standing to take countermeasures; 7. Erga Omnes enforcement rights and competing enforcement mechanisms; Conclusion; Bibliography; Index.

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Review of the hardback: ' … a remarkable book … very high quality …' Prof. Dr. Dres. h. c. Jochen Abr. Frowein

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