Erga omnes

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Erga omnes (Latin: in relation to everyone) is frequently used in legal terminology describing obligations or rights toward all. For instance a property right is an erga omnes right, 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, which is only enforceable against the contracting party (Inter partes).

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, genocide, slavery, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case:

"… 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."^[1]

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 instrumentsof a universal or quasi-universal character."

More recently, the International Court of Justice has recognized that the right to self determination also possesses an erga omnes character in the Case Concerning East Timor at paragraph 29. The International Criminal Tribunal for the former Yugoslavia also recently recognized the concept of erga omnes, noting that the prohibition on torture has that character, in Prosecutor v. Anto Furundzija, Decision of 10 December 1998 at paragraph 151.

While the content of the obligations erga omnes may arise from particular treaties (such as the Genocide Convention - see the decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) at paragraph 31, by their nature they are not based on treaty, but upon obligations binding on all states, regardless of whether they have signed a particular treaty.

The term is closely connected with the international law concepts of jus cogens (a peremptory norm that cannot be modified by treaty) and universal jurisdiction: the idea that certain activities are so reprehensible that all states have jurisdiction, and may apprehend an alleged perpetrator and try them under their own domestic procedures. However, while it is reasonably well established that all states may bring a claim against another state for violation of erga omnes norms (as recognized for example in the Case Concerning East Timor), it is less clear that the principle of universality extends to allow prosecutions of individuals. For example, Belgium issued “an international arrest warrant in absentia” against the incumbent Minister for Foreign Affairs of the Congo, alleging crimes against humanity, among other things. The matter was brought to the International Court of Justice in the case Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The ICJ's decision at paragraph 43 specifically found that it did not have jurisdiction to consider the question of universal jurisdiction, instead deciding the question on the basis of immunity of high ranking State officials. However, the matter was addressed in separate and dissenting opinions, such as the separate opinion of President Guillaume at paragraph 12, where he concluded that universal jurisdiction exists only in relation to piracy; and the dissenting opinion of Judge Oda who at paragraph 12 recognized piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction. However, the most persuasive judgment was that of van den Waengaert who differed greatly from the majority judgment. Significantly, Judge van den Waengaert was the only recognised international criminal law (as opposed to general public international law) expert on the bench.

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For a detailed study of the law and nature of erga omnes obligations see the International Law Commission's Report on "Fragmentation of International Law: difficulties arising from the Diversification and Expansion of International Law" (direct link not available - see ILC webside under "Main page > Sessions > Fifty-eighth session (2006) > Documents", Document A/CN.4/L.682) starting at page 193.