Omnes Obligations Research Articles

ICJ: Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion

The International Court of Justice advisory opinion addresses several complex legal questions. The Court examined whether these policies violate international law, particularly erga omnes obligations. Israel's actions were found to violate international law through the annexation of large parts of Palestinian territories. The Court explored the relationship between occupation and annexation, clarifying that while occupation is lawful if temporary and necessary, Israel's extended presence goes beyond this and amounts to annexation. The advisory opinion further addressed claims of racial segregation or apartheid, concluding that Israeli policies toward Palestinians demonstrate systematic discrimination and a policy of separation. This potentially may meet the legal definition of apartheid. The Court emphasized that all states and the UN have a duty not to recognise annexation and other violations for jus cogens. This opinion reaffirms the rights of the Palestinian people to self-determination and criticises the prolonged occupation for undermining those rights.

When a Dispute Exists: the Emerging Evidentiary Practice of the ICJ in Common Interests Proceedings

Abstract This contribution considers the practice of determining the existence of a dispute in proceedings before the International Court of Justice and explores the extent to which such assessment varies – or should vary – in relation to the legal interest protected. This question appears increasingly relevant in the context of common interests proceedings before the ICJ, that is, in cases in which the legal standing of the applicant(s) is based on a common interest in the compliance with erga omnes (partes) obligations. Zooming in on the requirements elaborated by the Court’s case law to date, the article argues that diverging theoretical postures – termed dialogic vs. systemic – inform the evidentiary approaches that have so far emerged and that are essentially discretionary. This contribution aims to shed light on how the Court’s evidentiary approach has adjusted to common interests proceedings to stand the test of time, while cautiously preserving the performance of the Court’s judicial function.

From International Mandate to National Legislation: Pakistan’s Response to Erga Omnes Obligations on Child Sexual Abuse

Abstract This article critically assesses Pakistan’s compliance with erga omnes obligations under the Convention on the Rights of the Child (CRC) concerning sexual abuse of children. It discusses the discrepancies between the international and national levels of legal provision and scrutinizes Pakistani measures to safeguard children against sexual exploitation from the perspective of the CRC. However, there are shortcomings in implementing such laws and, therefore, such protections are not effectively implemented. In the current article, some of the major fields of Pakistan’s legislation that do not conform to international standards are described, and the importance of legal reforms is stressed. Pakistan can better work to eradicate child sexual abuse and meet the requirements of the CRC through the synchronization of national laws with international norms and standards.

AUT DEDERE AS ERGA OMNES TO SUPPRESS CIVIL AVIATION CRIMES UNDER THE INTERNATIONAL CIVIL AVIATION LAW: THE ISLAMIC PERSPECTIVE

Aut dedere (extradition) is an erga omnes obligation towards the international community aimed at closing the gate of safe haven so that the international criminal will face the consequence of his heinous act directed at the international community from the requesting state. The term aut dedere has not been used in conventions or treaties until the eighteenth century. This paper examines the necessity of integrating the doctrine of 'aut dedere' (extradition) into International Aviation Conventions to combat civil aviation offenses and seeks to explore its treatment under Islamic law, and the potential for punishment for refusal to extradite offenders. Through doctrinal legal research, the paper reveals that while aut dedere is obligatory under conventional law, it lacks enforceability without associated punishments. Conversely, extradition under Islamic law is deemed mandatory due to its universal nature. The paper underscores the relevance of Islamic jurisprudence in modern international legal frameworks and recommends amendments to International Civil Aviation Organization conventions to enforce extradition provisions and recognize civil aviation crimes as international offences, consistent with Islamic legal principles.

State Responses to the Introduction of the National Security Law in Hong Kong: A Case of Countermeasures against Serious Breaches of Erga Omnes (Partes) Obligations?

State Responses to the Introduction of the National Security Law in Hong Kong: A Case of Countermeasures against Serious Breaches of Erga Omnes (Partes) Obligations?

The essence of the institute for the protection of cultural values in the aspect of armed conflicts

This article examines and analyzes the issue of the essence of the institution of protection of cultural values in international law in the aspect of armed conflicts. It is said that the situation with cultural heritage in the 21st century is extremely difficult due to the spread of armed conflicts and wars, which forces scientists from all over the world, as well as Ukrainian researchers, to regularly study this problem and find out new and relevant aspects based on the latest events in the country .
 It is emphasized that the full-scale invasion of Russian troops into Ukraine, which took place on February 24, 2022, can also be considered a war against culture, since the occupiers pay special attention to the cultural heritage of Ukraine. It is noted that one of the most important international treaties regulating the protection of cultural values in the event of an armed conflict is the Hague Convention of 1954.
 In conclusion, it is stated that the protection of cultural heritage during armed conflicts is becoming more and more relevant and important in our time, and this is confirmed by recent events. This mission is contemporary and supported by moral, strategic and legal imperatives. Modern theory and practice agree that the international community has a fundamental interest in the protection of cultural heritage, which must be guaranteed by all means, even in times of war.
 For this, it is important to use the most significant doctrines of international law and universalize the norms of customary law, which prohibit attacks and destruction of cultural values, and include them in the body of the main international legal documents. These norms establish erga omnes obligations, which equalize all members of the international community in their rights and responsibilities.

International principles of combating the illegal use for profit of humanitarian aid, charitable donations, or free aid

The article is devoted to an extremely relevant topic - the characteristics of the international principles of combating the illegal use for profit of humanitarian aid, charitable donations, or free aid. It has been proven that much of international humanitarian assistance is based on the premise that armed conflict will inevitably resume, but that all parties involved can take steps to minimize the hardships faced by civilians caught in the chaos. Nevertheless, the parties involved in the conflicts constantly do not fulfill their demands. The International Court of Justice has repeatedly noted that the right to humanitarian assistance is the core of ergo omnes obligations.
 The article establishes that the legal mechanisms, the current jurisdictional mechanisms for the international protection of the right to humanitarian aid, require significant time costs and the consent of the state to provide it with humanitarian aid. Political mechanisms are particularly effective in resolving disputes of this type because they are more flexible and can be used to combat the behavior of non-state parties. After all, a significant negative factor during an active armed conflict is that a person's right to humanitarian aid mainly depends on the political will of states to use the means available at their disposal to ensure implementation and execution. It turns out that the procedure for considering interstate complaints regarding the violation of the right to humanitarian assistance involves a long process, as well as the complete exhaustion of national remedies. Transferring a case to the European Court of Human Rights is also a long-term process that does not provide for temporary procedures for settling the situation. In such a case, the role of the courts is not preventive and cannot contribute to the prevention of violations of the right to humanitarian assistance. In addition, if judicial protection is always evaluated as a traditional way of protecting violated rights, then there are also alternative ones, for example, a monitoring procedure that focuses on the analysis of "situations" in which human rights are violated, considering the frequency of violations over time, and not the number of victims. This makes it possible to identify even individual violations of human rights.

Identification criteria for erga omnes obligations

The judgement of ICJ of 1970 brought about the need for theoretical basis for erga omnes obligations in international legal science. The following state and ICJ practice failed to create any uniform solution for identification of these rules. Therefore, the international legal teachings became essential for developing individual criteria and approaches to separate erga omnes rules and other rules of International Law.

Re-colonisation of Jammu and Kashmir and the Right to Self-determination

Abstract On 5 August 2019, India unilaterally ended the autonomous status under Article 370 of the Indian constitution 1949. The state of Jammu and Kashmir (j&k) was established under the terms of the Instrument of Accession by the Ruler of j&k. To change the demographic composition of j&k, Article 35A of Indian constitution 1949 was also abolished and new domicile rules were introduced paving the way for non-Kashmiri Indians to settle permanently in j&k. Under the Jammu and Kashmir Reorganisation Act 2019, Kargil and Leh districts were cut from Jammu and recategorized as Union Territory of Ladakh and the state of j&k was relegated to a Union Territory directly governed by the central government. On 5 May 2022, a delimitation report was published giving more seats to Hindus compared to Muslims against the population criterion. This article argues that India had started re-colonisation of j&k since October 1947. Eliminating its autonomous status in August 2019 was not the starting but a tipping point of the re-colonisation. After decolonisation of British India in August 1947, major Indian states such as Hyderabad; Junagadh and j&k were given the option to join India or Pakistan. India saw this as a ‘grave threat’ to her organic unity and invaded Hyderabad on 13 September 1947; j&k on 27 October 1947 and Junagadh on 9 November 1947. It is argued that India secured accession from the Ruler of j&k under compelling circumstances and on the condition that a free and impartial plebiscite would be held to ascertain the wishes of Kashmiri people. Since 1947, the pledge of plebiscite did not materialise. As freedom from colonialism has become a jus cogens, it is argued that the United Nations (UN) and its members have erga omnes obligations to respect and support the right to self-determination of the Kashmiri people.

Trading with a Friend's Enemy

AbstractEconomic sanctions have been the West's response of choice to Russia's full-scale aggression in Ukraine. Predictably, speculation abounds as to what these sanctions portend for future responses to acts of interstate aggression. The principles underpinning the “trading with the enemy” laws of a seemingly bygone era have resurfaced but applied not to the sanctioning powers’ own enemies but in solidarity with another state, at least insofar as the breaches of erga omnes obligations through armed aggression are concerned. The contemporary expansion in sanctions practice may have far-reaching repercussions.

Obligation to Combat Corruption as Erga Omnes Obligation in Customary International Law and Jus Cogens

Obligation to Combat Corruption as Erga Omnes Obligation in Customary International Law and Jus Cogens

Failure of the Islamic Republic of Iran to Comply with Erga Omnes Obligations in International Human Rights Law

In international law, and particularly in international human rights law, the conception of erga omnes obligations stands for a certain mandatory duty for states to take towards the interests of the international community as a whole. Stemming from Latin origin, and signifying duties ‘towards all’ or ‘towards everyone’, erga omnes obligations require that all states comply with the norms and principles that the international community has reason to value. Despite the clarifications about the erga omnes obligations of states towards the interests of the international community, the Islamic Republic of Iran has wittingly ignored such obligations. In the field of international human rights law, this reluctance by Iran to fulfill the erga omnes obligations is more and more evident and shameless.

Bridging the Climate and Maritime Legal Regimes: The imo’s 2018 Climate Strategy as an Erga Omnes Obligation

Abstract Scholarship and practice before the European Court of Justice indicate that international organizations can unilaterally bind themselves under international law. This article evaluates whether the International Maritime Organization did so with its 2018 ‘Strategy’ to reduce greenhouse gas emissions from shipping. After first identifying the source of the imo’s mandate to regulate greenhouse gas emissions from shipping and its treaty obligations to do so, it finds that the imo has the institutional competence to unilaterally bind itself with respect to its function and purpose of regulating vessel-source pollution. It further finds that the imo imposed on itself an erga omnes obligation to mitigate climate change in order to meet the Paris Agreement’s global warming limitation goals. The article reflects on the implications of these findings for climate law and international law generally.

International Cooperation for the Repression of Core Crimes

Abstract The burden of ensuring the repression of crimes that shock the conscience of mankind lies primarily with States. National prosecution of core crimes, however, relies heavily on inter-State cooperation. The obligation to cooperate in order to bring to justice the authors of war crimes, genocide and crimes against humanity may well be considered as a corollary of the erga omnes obligation to investigate and punish these crimes. The international instruments devoted to the repression of core crimes, however, fail to provide a sufficient regulatory framework for horizontal cooperation in this field, leaving it to States to make use of the tools established under domestic law, or provided by other existing treaties. The UNTOC and its Supplementing Protocols may prove useful in this framework. Even though these instruments were not expressly designed to tackle core crimes, some of the offences covered by them may indeed qualify as crimes against humanity or war crimes, if assisted by the ‘contextual element’ which characterizes the latter crimes. The UNTOC, moreover, can be used to further the prosecution of criminal groups that aid the commission of core crimes for profit.

Generally recognized principles and norms of jus cogens and erga omnes obligations: Legal nature and hierarchy in the Russian legal system

The article provides a conceptual and theoretical analysis of the hierarchy of conventional and customary universally recognized principles and norms of international law in relation to the Russian Constitution and federal legislation. The author points out the imperfection of the relevant provisions of the Constitution of the Russian Federation in relation to the generally recognized principles and norms of international law. It is noted that provisions of only ratified treaties of Russia have precedence over the norms of the laws of the Russian Federation and examples and consequences of violations of the procedure for ratification of treaties are provided. The main aspects of the origin and content of generally recognized principles and norms of international law are considered, as well as the difference between jus cogens norms and erga omnes obligations is shown with concrete examples. A doctrinal analysis of the legal nature, and the process of formation, of universally recognized principles of international law, as well as the relationship between jus cogens norms and erga omnes obligations is presented. The author notes the peculiarities of some legal systems of the world in relation to the legal position on the supremacy of Islamic Sharia law over the obligations of a number of Muslim States under human rights treaties. The article also points to the universal recognition of the domestic legal doctrine of ten “basic principles” of international law and, in addition, substantiates the existence and consolidation in modern international law of another ten norms of jus cogens and erga omnes obligations.

Obaveze erga omnes - jus cogens u nastajanju? Analiza inspirisana knjigom The nature of International Law

This paper is a follow-up to a debate on the book "The Nature of International Law" by Miodrag A. Jovanović. First, the approach towards erga omnes obligations adopted in the book is analyzed, after which a different perspective towards the concept is offered. The curious case of erga omnes obligations can be summed up by stating that there has hardly been more elucidated concept in international law but with so little clarification achieved. With the aim of shedding more light on this conundrum, the concept is compared to others of a similar nature, primarily jus cogens norms, only to identify that erga omnes obligations could be defined as jus cogens in statu nascendi. Respectively, it is argued that according to the current state of affairs in the international community, the International Court of Justice is an instance of last resort when distinguishing between jus cogens norms and obligations erga omnes. Finally, the view concerning the three-layered nature of the international legal hierarchy is accepted, with jus cogens norms having the highest rank, followed by erga omnes obligations and with the jus dispositivum of international law in third place.

Negotiation and Dispute Prevention in Global Cooperative Institutions: International Community Interests, IUU Fishing, and the Biodiversity Beyond National Jurisdiction Negotiation

Abstract In areas beyond national jurisdiction communitarian interests are vulnerable to a weak legal order, evidenced by the prevalence of IUU fishing. The negotiation of an agreement for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) and the still-evolving jurisprudence for erga omnes obligations present opportunities to strengthen them through global cooperative institutions by empowering states and non-state actors. BBNJ bodies designed to lead effective cooperation with other regimes should be considered strengthening, not undermining, to the legal order of the ocean, as economic interests emphasized in other instruments may be enhanced in the long-term by the BBNJ agreement’s planning, transparency, capacity building and technology transfer provisions. International courts have found that individual states have standing to represent community interests; non-state actors could also be recognized to have standing to access judicial fora when existential interests of humanity are at stake.

Jus cogens standards and erga omnes commitments in international criminal justice

The article analyzes the application of jus cogens and erga omnes obligations in international criminal justice. The main ideas that were the basis of the concept of jus cogens norms and the concept of obligations erga omnes are investigated. The modern doctrines of jus cogens and erga omnes are analyzed. Imperative norms, which have a special legal force, is one of the characteristic features of modern international law. These rules are a set that determines the nature of international law, its goals and principles and in general its main content. The norms of jus cogens include the principles and norms of international law prohibiting aggression, war crimes, crimes against humanity, the crime of genocide and other international crimes. These crimes are of concern to the entire international community and oblige states to counter these horrific phenomena. Ensuring mandatory norms in the field of combating international crime requires the introduction of an effective international legal mechanism, an important element of which are the relevant international courts. In case of violation of imperative norms, there are universal legal relations of responsibility. The point is that not only the directly affected state, but also any other state has the right to raise the issue of the offender’s liability, in particular in the case of international crimes. This is similar to the Roman rule «actio popularis», according to which every member of society had a legal right to protect public interests. With this in mind, jus cogens and erga omnes are at the heart of the legal framework of international criminal courts and are an important area of research in international criminal law. Key words: jus cogens norms, erga omnes obligations, international crimes, international criminal court.

A delimitação (quase) final da fronteira marítima no Mar de Timor

Timor-Leste and Australia reached an historic settlement on the delimitation of the maritime border of the “Timor Gap”, ending a decade long dispute that dates back to the colonial time of Portuguese Timor. There are many lessons to learn from this process, which contribution to the development of international law this paper intends to discuss, namely the erga omnes obligation arising from the exercise of the right to self-determination by the Timorese people, the Joint Development of natural resources in maritime areas under dispute and the recent procedural relevance of the mandatory conciliation under the UNCLOS.

The Relativity Apocalypse is Nigh

By all rights, Prosper Weil's 1983 cri de coeur should be one of many best-forgotten law review articles. It targets, after all, concepts that few dispute today (namely jus cogens and erga omnes obligations, as well as shortcuts to finding universally applicable customary law based on “quasi-universal” treaties). Its other direct target—the distinction between international crimes and delicts—refers to once contentious debates over whether states can be charged with ordinary international delicts as well as international crimes. This has since been eclipsed by the International Law Commission's (ILC's) decision to include, in its Articles of State Responsibility, Article 41 (enumerating the consequences of “serious breaches” resulting from the violation of preemptory norms). And insofar as Weil's foil was the premise that international “delicts” can have a “variable geometry,” that too has been overtaken by events: neither the ILC's turn to “serious breaches” nor the far older proposition that individuals can be prosecuted for international crimes remains the subject of much controversy today.