A PROPOSED DEFINITION OF ERGA OMNES CUSTOMARY NORMS

In the 1970 Barcelona Traction Case the International Court of Justice (ICJ) first explicitly articulated the idea of erga omnes obligations – “obligations of a State towards the international community as a whole” – as distinguished from normal obligations of a state “arising vis-à-vis another State.” It asserted, “By their very nature” the former kinds of obligations “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.”

The ICJ went on to give as examples of erga omnes obligations those derived 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 [citing the Reservations to the Genocide Convention Advisory Opinion]; others are conferred by international instruments of a universal or quasi-universal character.” The Court has more recently declared that the right of peoples to self-determination is an erga omnes right, that certain obligations of international humanitarian law have an erga omnes character, and that the rights and obligations enshrined in the Genocide Convention are erga omnes.