Decolonisation as the Source of the Concepts of Jus Cogens and Obligations Erga Omnes

Abstract

The scholarly consensus is that jus cogens emerged from the work of the UN International Law Commission on invalidation of treaties, and the International Court of Justice developed the concept of obligations erga omnes in its wake. This study challenges that perspective by demonstrating that these concepts were developed to accommodate Newly Independent States during the decolonisation process. It takes issue with the recognised starting point of the development of jus cogens in the literature: the deeply problematic piece written by Verdross; and demonstrates that leading jurists of the 1960s recognised that jus cogens was “a political concession to the New States” rather than a technical imperative of the law of treaties. The study considered the evolution of the litigation regarding Namibia before the International Court of Justice, demonstrating the communal interest which Ethiopia and Liberia sought to engage, so as to end the racist regime which South Africa instituted within its Mandate for South West Africa. The ultimate outcome, manifest in the dicta of the Barcelona Traction case, was to escape that specific litigation and transform the very fabric of international law, embedding a communal interest beyond the bilateralism of jus publicum Europeaum. The author invites scholars to look anew to the sources of this communitarian interest and points to the writing of Judge Alejandro Alvarez as one possible staring point.