Discuss the Importance of Jus Cogens and Erga Omnes Obligations in Public International Law

Article 64 of the Vienna Convention deals with the emergence of a new peremptory norm of international law. It stipulates that when a new peremptory norm of international law arises, any existing treaty that conflicts with that norm will be annulled and terminated. “180. Since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right …. The Court considers that, while it is for the General Assembly to decide on the modalities necessary to ensure the completion of the decolonization of Mauritius, all Member States must cooperate with the United Nations in order to implement those modalities. As recalled in the Declaration on Principles of International Law on Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations: This article was written by Muskaan Garg of Symbiosis Law School, Pune. This article explains the international principle of ius cogens and the various examples of its existence and authority. It also surrounds the different points of view and important cases around the subject. Jus cogens and jus positivism remain in the debate because their applicability is opposite. Jus cogens are mandatory, constant and binding on all States, regardless of their consent, while jus positivism is non-binding and may be amended from time to time.

One aspect of universal jurisdiction is the personal jurisdiction of all States over the alleged violator of such crimes, thus keeping the norm of ius cogens on a pedestal higher than jus positivism. By referring to the obligation to cooperate, the Court does not expressly draw the causal link from the erga omnes. It is not because the reference to the obligation to cooperate derives directly from the recognition of the erga omnes nature of the duty of self-determination that the latter results from the former. That interpretation is therefore corroborated by a textual reading of the Conclusions. It is also preferable in that it maintains a higher degree of conceptual clarity with regard to the parameters of the term erga omnes and its relationship with other legal concepts. It is also possible that the Court may, in paragraph 4. 180 recognises a new additional consequence of the breach of an obligation erga omnes: the emergence of an obligation to cooperate in the implementation of correlative law – in this case the right to self-determination. However, the space and attention devoted to this issue at the end of the opinion does not seem to support such a radical change in the international legal infrastructure. Craig Eggett is a lecturer and PhD student in international law at Maastricht University. His research focuses on the nature and function of “general principles of law.” 1. It seems to me that the confusion you mention is due to the fact that, as you say, you believe that “[t]he ONLY consequence of the characterization of an obligation of erga omnes is the generation of a right to position in all States” (emphasis added). As I understand it, you argue that the confusion is that the first sentence of [180] can only lead to “a right to standing,” not an “obligation to cooperate with the United Nations.” Since the case-law of the Court of Justice deals with the consequence of obligations, it is possible for all States to have a “legal interest in the protection” of a particular right.

I did not understand how you interpret “a legal interest in protection” into “an exclusive right of standing.” Can you elaborate on that? 1. The proposals we refer to are actually found in the literature rather than in state practice (for example, Ragazzi listed many potential candidates in his book The Concept of Obligations Erga Omnes, and there are many other recent proposals). However, this is precisely the problem as we see it. There is no clear or generally accepted procedure for recognizing the erga omnes nature of an obligation. Factors that may be relevant include the importance of engagement and its structure. In our view, there is an argument that an obligation which is not owed to a particular State may, by reason of its structure, be regarded as an obligation erga omnes. That classification (as erga omnes) does not depend on the fact that the rule from which the obligation arises is mandatory. In the case of Bosnia and Herzegovina against Serbia and Montenegro [2007], Serbia was accused of attempting to exterminate the Muslim population of Bosnia and Herzegovina, resulting in violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thus invoking an article of the Genocide Convention. In the present case, it was unanimously declared that Serbia was neither directly involved nor complicit in it, but rather committed a violation of the Genocide Convention by not preventing it from occurring, since the Genocide Convention is part of ius cogens. In the present case, the principle of opinio juris has been introduced into international law, which states that it is an opinion of law or necessity. This is a necessary element in customary law and acts as a defense, as if the actions were of necessary or legal opinion.

In this case, it was found that the actions of the United States were not consistent with this principle. The only difference between ius cogens and jus positivism is that the former is a set of internationally applicable norms, while jus positivism is the phenomenon of formulating laws for the State that are applicable only within the State. It may seem pedantic to delete a single paragraph in an opinion that includes such comprehensive and important issues as the self-determination of peoples and the end of the colonial era. But this pedantry has value. The concept of erga omnes is useful: it facilitates the integration of Community interests into international law and the reflection of these interests in the invocation of State responsibility. Unfortunately, this connection with higher ideals sometimes seems to lead to the erga omnes becoming a rhetorical pawn; A practical term to emphasize the meaning of certain rules or interests, to the extent that their legal meaning is obscured. For the erga omnes to retain its legal utility, it must be treated with the conceptual clarity it deserves. Professor Michel Byers cited a definition somewhat similar to that of Professor Oppenheim.

He focused on conceptualizing the relationship between the rules of jus cogens and erga omnes. Erga omnes obligations are those in which all States have a legal interest because the subject is important to States and the international community as a whole. In the event of a breach of these obligations, each State is deemed to be entitled to invoke the responsibility of the guilty State that committed the act contrary to international law. It binds all members of the international community in all circumstances. Jus cogens imply absolute restrictions on genocide, slavery or the slave trade, torture or other inhuman treatment, prolonged arbitrary detention and racial discrimination. Any activity or treaty conducted by States or international organizations that is contrary to human dignity and human rights will violate the concept of common law and will therefore be void. It can be said that jus cogens exists to protect and defend human dignity and human rights. The Jus-Cogens standard has maintained its strong position since 1969. The principle of ius cogens raised the hope that the elaboration of legal norms would lead to a greater realization of justice in national actions and to a better perspective of justice, peace and cooperation among nations. An essential result of this hope has been the growing vitality of the principle of ius cogens and its development of domination in international law. The use of ius cogens in human rights actions should overcome the obstacles to redress for abuses cited by the Court and serve as a convincing factor for the progressive implementation of human rights. 2.

If the Court were to seek to establish the causal link between the classification of the erga omnes and the obligation to cooperate in [180], that would mean that it would be mixing the obligations erga omnes and jus cogens. There is no legal basis for such a causal link unless the Court considers that it goes beyond what has been recognised so far, and for the reasons we cite in the publication, we do not believe that this is the case. 2. Given that the obligations set out in the first and second sentences of [180] are different, that is to say, `all States` and `all Member States` respectively, I agree with your statement: `By referring to the obligation to cooperate, the Court does not expressly establish the causal link between erga omnes`. But I think it is an exaggeration to say: `It is not because the reference to the obligation to cooperate derives directly from the recognition of the erga omnes character of the obligation to respect self-determination that the latter derives from the former`. I see a link between them, but the Court does not say that explicitly. I read [180] so that although all states have a legal interest. in the specific context of the UN, Member States are obliged to cooperate with the UN. I think it`s a gullible reading of [180].