Cases for OPINO JURIS

NORTH SEA CONTINENTAL SHELF CASE

ASYLUM CASE
RIGHT TO PASSAGE CASE
LIBYA v. MALTA (Continental Shelf dispute)

ERGA OMNES

In international law, the concept of erga omnes obligations refers to specifically

determined obligations that states have towards the international community as a whole. In
general legal theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins
dating as far back as Roman law and is used to describe obligations or rights towards all. In its
Obiter dictum on the Barcelona Traction case, the International Court of Justice, as the primary
judicial organ of the United Nations, gave rise to the concept of erga omnes obligations in
international law. The World Court specifically enumerated four erga omnes obligations: the
outlawing of acts of aggression; the outlawing of genocide; protection from slavery; and
protection from racial discrimination. In this judgment the Court drew a distinction between the
erga omnes obligations that a state has towards the international community as a whole and in
whose protection all states have a legal interest, and the obligations of a state vis-à-vis another
state. Such obligations, as enumerated above, have been determined by the Barcelona Traction
case.

JUS COGENS

Article 53 of the Vienna Convention on the Law of Treaties of 1969 (VCLT).2 As is

well known, this article determines that “a treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law
having the same character.” In accordance with Article 53 VCLT, a treaty is null and void if it is
concluded in conflict with a peremptory norm of general international law (i.e. jus cogens). To
give a concrete example, a treaty between two countries aimed at committing genocide against a
particular ethnic group on one or both of their territories would be null and void. The definition
in Article 53 VCLT does not identify any norms having peremptory status. The threshold for
gaining peremptory status is high, for although it does not require a consensus amongst all states
(and one single state would not be able to block the recognition of a peremptory norm), it does
require the acceptance of a large majority of states.
RELATIONSHIP BETWEEN JUS COGENS AND ERGA OMNES

Jus Cogens are the pre-emptive norms which cannot be derogated either by a treaty or by
a customary law. Erga Omnes are basically the obligation or the duty which a state has against
rest of all the nations. So, there exist a close relationship between jus cogens and erga omnes. Jus
cogens creates norms and erga omnes deals with the obligation. The Barcelona Traction decision
of the ICJ provides authority for the conclusion that jus cogens obligations would have erga
omnes effect.74 Without expressly referring to jus cogens the ICJ implied as much by the types
of obligations it mentioned as examples of erga omnes norms. These included the out-lawing of
the unilateral use of force, genocide and the prohibition of slavery and racial discrimination.
Given the fact that these same prohibitions come widely regarded as being of a peremptory
nature, it follows that when an obligation is recognized as one from which no derogation is
permitted due to its fundamental nature, all states (and other subjects of international law) have a
legal interest in its protection.

A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An
erga omnes obligation is therefore the consequence of a rule being characterized as jus cogens.
Erga onnes is a legal term that is used to describe the rights and obligations towards all. Breach
of an erga onnes norm in theory makes the party which has breached obliged to all. Jus cogens
are a set of legal norms that cannot be contracted out by any agreement. The breach of such
norms does not always make the party breached obliged to all but it is the case when an erga
omnes norm is breached; the state which breaches erga omnes is obliged to all.

LEX SPECIALIS DEROGATE LEX GENERALI

The maxim lex specialis derogat legi generali is widely accepted as constituting a general
principle of law. It entails that, when two norms apply to the same subject matter, the rule which
is more specific should prevail and be given priority over that which is more general. In the
international legal system, the concept is frequently resorted to by courts and tribunals as a tool
of legal reasoning in order to resolve real or perceived antinomies between norms.

A first manner in which the lex specialis principle has been used is in order to explain the
point that, in general—and to the extent that the relevant customary rule does not constitute jus
cogens—States are free by entering into a treaty to modify the obligations which would
otherwise be applicable between them under customary international law. ​In other words, as a
general matter, a treaty obligation, being more specific, will prevail over customary international
law, as it is more general. ​The application of the principle in this manner is qualified, in the sense
that a treaty will only apply as lex specialis if and to the extent that the relevant treaty obligations
between the parties. The second manner in which the lex specialis principle may be used is as a
means for articulating the relationship between norms contained in the same treaty, or in
connected instruments, which are potentially applicable to the same subject-matter.

LEX POSTERIOR DEROGAT PRIORI

Under the rule of lex posterior derogat lege anterior, a later rule is presumed to trump an
earlier rule. A later rule abrogates an earlier rule of similar status, unless otherwise stated in the
provisions implementing the later rule. If customary and treaty law are equivalent sources over a
subject-matter, what should prevail over what becomes the question of interpretation. What
happens when treaty law and customary law comes into conflict regarding a particular issue
wherein applying each of these leads to contradictory result? One probable solution is applying
this maxim and accordingly the law which has later formed will overrule the former one. Again,
there would difficulty in ascertaining whether customary law prevailed initially or the treaty law.
To determine such issues, Court should look into facts and circumstances of each and every case.

PERSISTENT OBJECTOR AND SUBSEQUENT OBJECTOR

The basic rule of general customary international law (as opposed to a local custom) is that it
binds all States. New states are bound by old customary law, in spite of the fact that they did not
consent to the custom at the time of its formation or thereafter. States that are silent during the
formation of customary law are bound by their silence – we call this tacit acceptance or
acquiescence. States can express its intention to be bound by customary law through public
declarations, much like the signature appended to treaties.

In customary international law, (1) a state may refuse to be bound by the customary
international law at its inception – a persistent objector or (2) a state may refuse to be bound by
customary international law after it comes into force – a subsequent objector.

ANGLO-NORWEGIAN FISHERIES CASE – PERSISTENT OBJECTOR

Facts

Due to the dented coast of Norway, they followed baseline method. (Baseline method is
where all the coastal ends are joined, and then territorial waters are determined) Norway did not
follow the 10 miles principle from the low tide; rather it followed 4 miles principle from the
baseline. England questioned this before ICJ.

In Anglo-Norwegian Fisheries case, held that even if a customary law rule existed (on a
ten-mile rule relating to straight base-lines), “…the ten-mile rule would appear to be inapplicable
as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast.”
When it is considered as Persistent Objector?

(1) A state objects to the practice at the initial stages of the formation of customary law and
continue to object in a sustained manner; or

(2) A state adopts a contrary practice at the initial stages of the formation of customary law and
continue to do so a sustained manner.

Subsequent Objector

The consequence of a subsequent objector – one who objects after the formation of the
customary law rule – is clear. The state that objects continues to be bound by the customary law.
If it acts in contrary to the law, it violates the law. The state can be held responsible for the
violation under international law.

If a number of states agree to the deviation then these states could create another
customary law rule, either as a local custom or, if a sufficient number of affected states
participate, a general custom.

For a subsequent objector to develop a new customary law rule an existing norm must be
broken. A state wishing to change customary law must either (1) violate the law and hope other
states would acquiesce to it (and if, and until such time the state would be in breach of a
customary international law); or (2) without violating the existing law the state must (a) get a
sufficient number of states to accept a new customary law.