Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

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The recent ICJ Advisory Opinion concerning the Chagos Islands has, understandably, received a great deal of attention. The controversies surrounding the more political elements of the decision have dominated headlines. However, in this blog post, we want to focus on one particular aspect of the Court’s decision. Tucked away at the end of the opinion, paragraph 180 recognises the erga omnes character of the obligation to respect self-determination and finds that there exists an obligation, binding on all states, to cooperate with the UN to complete the decolonisation of Mauritius:

‘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 pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle” […].’ (emphasis added).

This is followed by confirmation in paragraph 182 and in operative paragraph 5 (with only Judge Donoghue dissenting, on unrelated grounds), that ‘all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.’

Since its recognition in 1970 (Barcelona Traction [33]-[34]), the concept of erga omnes has been the subject of heated academic debate and has surfaced a handful of times in ICJ judgments, opinions, and arguments before the Court (e.g. here [29], here [64], and here [15]). However, the notion of erga omnes remains surrounded by a considerable lack of conceptual clarity. There is frequent conflation, even at the level of the ICJ, between this and other international legal concepts. Paragraph 180 of the Chagos opinion provides both a well-needed clarification and a potential source of confusion in this regard.

Clarification

First, the clarification. The Court’s use of terminology – speaking of an obligation erga omnes to respect the right of self-determination – is a welcome improvement. In previous decisions, the Court had referred instead to ‘rights erga omnes’ of peoples to self-determination (East Timor, [29]).

Of course, while rights and obligations go hand in hand, it is obligations that have erga omnes character, not rights. It does not make sense to speak of rights erga omnes in this context. To say that a right has erga omnes character or is ‘opposable towards all’ is simply a description of the scope of application of the right. For example, the right of a coastal state to enact certain legislation in relation to its Exclusive Economic Zone is opposable towards all other states. In this sense it a right erga omnes. But many rights have this kind of structure – this does not make them special. If a state fails to respect these rights of a coastal state, this does not generate a procedural right of standing on the part of all states to invoke responsibility on that basis.

An obligation erga omnes, in contrast, is one that is owed to the international community as a whole. The legal effect of such a characterisation is the generation of a procedural right of standing, on the part of all states, to invoke the responsibility of a state that is in breach of this obligation. The erga omnes character of a given obligation may indeed be dependent upon ‘the importance of the rights involved’ (Barcelona Traction, [33]). Each of these rights may entail a number of different obligations, from the obligation to respect that right to the obligation to promote or protect it. Some of these obligations may be opposable erga omnes some may not be. In any case, the concept of erga omnes attaches to the obligation, not the right.

There is therefore an important distinction between and obligation erga omnes and its corresponding right(s). By referring to the obligation erga omnes to respect the right to self-determination, the Court in Chagos provided a welcome clarification on this point.

Confusion

Unfortunately, this is where the contribution to clarity ends. The way in which paragraph 180 has been drafted creates the potential for unfortunate confusion. It could easily be read as implying that the erga omnes nature of this obligation to respect self-determination entails an obligation binding on all states “to co-operate with the United Nations in order to complete the decolonization of Mauritius.” This is indeed how the Opinion has been interpreted by a number of commentators, including in contributions to this blog. Marko Milanovic, for example, seems to draw this line of causation: “UN member states must cooperate to finalize the decolonization of Mauritius…since self-determination is an obligation erga omnes” (emphasis added). As explained above, this is not the generally accepted function of erga omnes obligations. The sole consequence of characterising an obligation as erga omnes is the generation of a right of standing on all states.

This confusion could stem from the conflation of the consequences of a breach of an obligation erga omnes with those of a serious violation of a peremptory norm under Articles 40-41 ARSIWA. Article 41(1) imposes an obligation on all states to “cooperate to bring an end through lawful means” a serious breach of a peremptory norm. Despite the history of confusion both in and out of the Court (see e.g. here, Article 5 and here [157]-[159]) between obligations erga omnes and peremptory norms, these are different legal concepts. It is generally recognised that while all peremptory norms entail obligations erga omnes, not all obligations erga omnes arise from peremptory norms. While they may be related through the interests they protect, and there may be significant overlap, they are functionally distinct.

If the Court is basing the obligation to cooperate towards the decolonisation of Mauritius on the erga omnes character of the obligation to respect the right to self-determination, this would be an unfortunate conflation of obligations erga omnes and peremptory norms. It is of course possible that the Court is of the opinion that the rule requiring states to respect the right to self-determination is a peremptory norm, and that the UK has committed a serious breach of this rule. In such circumstances it would be appropriate to apply Article 41 ARSIWA. However, despite the similarity in language, the obligation to cooperate with the UN to complete the decolonisation of Mauritius is not a direct application of Article 41, which requires states to cooperate (not necessarily with the UN) to bring to an end the breach of the norm in question. There is also no mention of the other consequences imposed by Article 41, namely that “No State shall recognize as lawful a situation created by a serious breach [of a peremptory norm] nor render aid or assistance in maintaining that situation.” Furthermore, there is no mention in the Court’s language of the peremptory character of the rule.

It is also a possibility that, in paragraph 180, the Court recognises a new, additional consequence of the breach of an obligation erga omnes: the generation of an obligation to cooperate towards the realisation of the correlative right – in this case, the right to self-determination. However, the space and attention dedicated to this at the end of the Opinion would not seem to support such a drastic change to the international legal infrastructure.

Proposed Solution

We propose an alternative interpretation that is far more satisfactorily reconcilable with the existing notion of erga omnes. Rather than being a consequence of the erga omnes character of the obligation to respect self-determination, the obligation to cooperate referred to by the Court arises from a self-standing rule of customary international law. This is reflected in, e.g., UNGA Resolution 2625, as quoted above.

In referring to the obligation to cooperate, the Court does not explicitly draw the causal link from erga omnes. Just because the reference to the obligation to cooperate immediately follows the recognition of the erga omnes character of the obligation to respect self-determination does not mean the latter follows from the former. This interpretation is thus supported by a textual reading of the Opinion. It is also preferable in that it maintains a higher level of conceptual clarity with regard to the parameters of notion of erga omnes and its relationship with other legal concepts.

It may seem pedantic to pick away at a single paragraph in an opinion that spans such global and important themes as the self-determination of peoples and the end of the colonial era. But there is value in this pedantry. The concept of erga omnes is a useful one: it facilitates the integration of community interests into international law, and the reflection of those interests in the invocation of state responsibility. Unfortunately, this connection to higher ideals sometimes seems to result in erga omnes becoming a rhetorical plaything; a handy term to emphasise the importance of certain rules or interests, to the extent that its legal meaning becomes obscured. If erga omnes is to maintain its juridical utility, it must be treated with the conceptual clarity that it deserves.

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    Comments

    Dire Tladi says

    May 21, 2019

    Thank you for this very interesting read. Just last week (15 May) I, as special rapporteur for the ILC topic peremptory norms of general international law (jus cogens), had the opportunity to respond to the plenary debate on the fourth report (A/CN.4/727), which concerned the question of whether to propose an illustrative list of norms. The fourth report itself was submitted before the issuance of the Chagos advisory opinion but the Chagos advisory opinion played a significant role in the debate (1) because of the relationship between erga omnes obligations and jus cogens and (2) because the Court did not refer to self-determination as a norm of jus cogens.

    My own view is that it is the case, as you rightly say, that erga omnes obligations and jus cogens do not mean the same thing. Jus cogens refers to particular types of norms and obligations erga omnes refers to the character of obligations. Jus cogens norms give rise to erga omnnes obligations. That is the relationship between the two concepts. The secondary issue which you raise concerns whether all obligations erga omnes arise from jus cogens. The answer is not complicated but neither is it a straightforward yes or no. I would say that most erga omnes obligations arise from jus cogens. The ILC in the paragraph 7 of the general commentary to Chapter III of Part of the articles on state responsibility has said, correctly in my view, that "there is at least a substantial overlap" between the concepts. The only exceptions, i.e. of obligations erga omnes not arising from jus cogens norms, that have been pointed out to me are obligations arising from some (emphasis) rules relating to common spaces, most notably examples arising from the common heritage of mankind rules/principles. It would not apply to other common spaces rules such as freedom of the high seas - and here I think your discussion of why erga omnes refers to obligations and not rights is apt.
    Seen from this perspective, the Court's application of article 41 of the articles on state responsibility is correct. If self-determination produces erga omnes obligations and it is not a norm related to common spaces, then a conclusion can be reached that it is jus cogens. In this respect, the Court's application of art 41 to the breach of the obligation (erga omnnes) arising out of the peremptory norm is appropriate and for me confirms what the Court is reluctant (perhaps because it is unnecessary) to say expressly.
    I will note that while the Court does not itself use the words peremptory norms or jus cogens, several judges do (Judges Cançado Trindade, Sebutinde, Robinson) with no judge challenging this assumption. Moreover in the course of proceedings, several States also referred to the peremptory status of jus cogens (Belize, Cyprus, the Netherlands, Brazil, South Africa, Mauritius, Kenya, Nicaragua, Serbia and representing 55 States, the African Union) with no State challenging this view.
    All this, for me suggests that the Court got the relationship right: (1) Peremptory norms produce erga omnes obligations (and only in few cases do erga omnes obligations arise from norms not of a peremptory character); (2) the consequence of this is that breaches of erga omnes, with few exceptions, attract the consequences in article 41; (3) self-determination is peremptory norm from which erga omnes obligations arise and therefore the breach of these obligations attract the duty to cooperate in article 41.
    One final point: it would be hard to see the duty to cooperate to bring to an end a breach as arising from normal customary international law. It is not clear to me how this could be a general duty when some even question the customary basis of article 41 itself (see para 136 of the Report of the ILC at its 70th Session (2018)

    Sarah Thin says

    May 22, 2019

    Professor Tladi,
    Thank you very much for your useful and interesting comment. We are grateful for the response.
    We are agreed that there may be ‘substantial overlap’ between the substantive content of jus cogens norms and obligations erga omnes. Indeed, this would seem to follow from the underlying rationale that they have in common: the protection of fundamental community interests. We would also tend to agree that, due to their nature, norms of jus cogens will perhaps inevitably give rise to obligations erga omnes. However, this is not the same the other way around. There remains a great deal of uncertainty around the identity of obligations erga omnes – however, there are numerous suggestions that extend well beyond obligations relating to common spaces and which do not seem to arise from peremptory norms, ranging from human rights law to environmental protection and beyond. Obligations erga omnes and jus cogens norms are functionally distinct, as is their identification. Thus, in our opinion, there is no necessary legal link between the characterisation of an obligation as erga omnes and the jus cogens nature of the rule from which it arises. We would disagree, therefore, with the assertion that ‘If self-determination produces erga omnes obligations and it is not a norm related to common spaces, then a conclusion can be reached that it is jus cogens.’
    Furthermore, we would also disagree with the assertion that the Court (implicitly) applies Article 41 in this Opinion. First, as we mention in our post, we do not believe that the obligation to cooperate with the UN to bring to an end the decolonisation of Mauritius is a direct application of Article 41(1). This article requires states to cooperate to bring to an end through lawful means any serious breach of an obligation arising from a peremptory norm. There is no particular mention here of cooperation with the UN. Second, there is no evidence of the application, implicit or otherwise, of the consequences the flow from Article 41(2). If the Court were of the opinion that there had been a serious breach of an obligation arising from a peremptory norm (as provided for by Art 40), then it would also be expected to hold that states are under an obligation not to recognise as lawful the situation created by the breach, nor render aid or assistance in maintaining that situation. To treat such things as implicit, it is submitted, would be to stretch the unspoken word of the Court a bit too far.
    With regard to your final point, it is not our submission that there is a general obligation to cooperate to bring to an end a breach (of an obligation erga omnes). Instead, we are simply arguing that the specific obligation referred to in [180] to cooperate with the UN towards the decolonisation of Mauritius arises from a self-standing customary rule in relation to decolonisation (as reflected in e.g. GA Res 2625).
    Once again, many thanks for your response!
    Craig and Sarah.

    John Morss says

    May 23, 2019

    Just a modest methodology point: to interpret failure of the majority to expressly reject an assertion of Cancado Trindade as evidence for tacit endorsement of that assertion, as seems to be suggested by the first comment above (in relation to jus cogens), would be both disrespectful of AACT and his holistic maverick role, and problematic in any event? And to cherry-pick AACT on such grounds, would also be unhelpful? (Perhaps the majority's eschewing of jus cogens is very carefully considered.)

    Dire Tladi says

    May 23, 2019

    Dear Sarah and Craig (if I may),

    Only a few comments, to your helpful response.

    1. With respect to the following comment "however, there are numerous suggestions that extend well beyond obligations relating to common spaces": it would be interesting to hear (a) some examples of norms not of peremptory character or relating to common spaces that establish erga omnes obligations and (2) the authority for the proposition that these norms create erga omnes obligations (authority, not in literature but in the practice of States).

    2. It is correct that article 41 does not speak about cooperation with the United Nations. I would point out, however, that the commentary to article 41 specifically mentions that the cooperation envisaged is to take place mainly within the framework of the United Nations (" Because of the diversity of circumstances which could possibly be involved, the provision does not prescribe in detail what form this cooperation should take. Cooperation could be organized in the framework of a competent international organization, in particular the United Nations. However, paragraph 1 also envisages the possibility of non-institutionalized cooperation." para 2 of the commentary to that article). The United Nations is thus an instrument of that cooperation. There is another reason why it is reasonable for the Court to focus on cooperation with and within the United Nations. This other reason is suggested in third point below.

    3. It is again correct that the Court does not refer to other particular consequences in article 41(2) (non-assistance/aid and non-recognition). You must recall, however, that the request for an advisory opinion came from the United Nations General Assembly. The Court cannot spell out duties directed to States in general since it was not individual States that made the request for an advisory opinion. The Court addresses its opinion to the organ requesting the advisory and not to the general international community. Duties that do not implicate the United Nations directly are beyond the scope of the opinion. To hold a contrary view would be to suggest, incorrectly, that the Court, though holding the view that there is a duty to cooperate with the UN to bring to and end the breach of the duty to respect the right to self-determination, at the same believes that States may assist the UK in continuing the situations created by the breach, such as the continued UK presence on the territory.

    4. A further point on the non-referral to article 41(2): There are many consequences that may flow from the breach of the duty in question. But the Court does not mention them. The Court does not address, for example, the possible consequences of reparations. That Court does not address this, not because this is an irrelevant consequence, but because it is irrelevant for the purposes of the advisory opinion i.e. since such consequences do not relate to the mandate of the requesting organ.

    5. I fully accept the nuance that you bring forward in relation when you say you "are simply arguing that the specific obligation referred to in [180] to cooperate with the UN towards the decolonisation of Mauritius arises from a self-standing customary rule in relation to decolonisation (as reflected in e.g. GA Res 2625)." I confess I missed that nuance. My response though remains a simple one and it is this: This customary international duty itself has, by virtue of its connection with a peremptory norm, been elevated to the status of peremptory norm. That duty is, for me, simply an application of the consequences for peremptory status of self-determination.

    Although I do not share your views, thank you for sharing them. They provide fuel for the mind (I apologise for any typos)

    As for the comments of Mr John Morss, I apologise if my long comment created the impression that it is only the response to Judge Cancado Trindade that provides evidence for the peremptory character of the self-determination. I did not mean to create such impression and will try to be clearer in future comments.

    Sarah Thin says

    May 23, 2019

    Dear both,
    Thanks for continuing this interesting discussion (made all the more relevant by yesterday’s vote in the GA)!

    Dear Dire (if we may),
    We have a few points to make in response to your latest comment:

    1. The suggestions to which we refer are indeed found in literature rather than the practice of states (e.g. Ragazzi has listed numerous potential candidates in his book, The Concept of Obligations Erga Omnes, and there are many other more recent suggestions). However, this is precisely the problem as we see it. There is no clear or generally recognised process of recognition of the erga omnes character of an obligation. Factors that may be relevant include the importance of the obligation and its structure. There is, we believe, an argument to be made that an obligation owed not to a particular state can be considered an obligation erga omnes because of its structure. This characterisation (as erga omnes) is not dependent on the fact that the rule from which the obligation arises is peremptory in character.

    2. Thank you for pointing out this aspect of the commentary of which we were unaware. Indeed, the reference to cooperation with the UN alone does not rule out that the Court may be applying Article 41.

    3 and 4. However, we would maintain that the non-application of Article 41(2) is strong evidence that that Court is not applying Article 41 in [180]. We would dispute, first of all, that the Court is barred from giving an opinion on ‘duties that do not implicate the United Nations directly.’ The only limitation to the scope of the Opinion, as we see it, is that it must fall within the scope of the question(s) asked by the GA. Question (b) in the request from the GA asks: ‘What are the consequences under international law…arising from the continued administration by the UK of the Chagos Archipelago?’ The application of Article 41 in its entirety (including Article 41(2)) would fall under the scope of this question and could therefore be addressed by the Court if it believed it relevant. For the same reasons, we do not agree that the Court would be barred from discussing reparations.

    5. We would disagree that a norm can attain peremptory status because of its connection to another peremptory norm. The recognition of the peremptory status of a norm occurs in relation to each norm individually. Even if the obligation to respect self-determination in the context of decolonisation arise from a peremptory norm, it does not follow that the obligation to cooperate referred to in [180] would attain peremptory status merely because of its connection with this norm.

    Thanks again,
    Craig and Sarah.

    Minh Tran says

    May 25, 2019

    Thanks for the post. It is interesting. I would like to raise two points.

    1. It seems to me that the confusion that you mention is because you believe, as you state, “[t]he SOLE consequence of characterising an obligation as erga omnes is the generation of a right of standing on all states” (emphasis added). As far as I understand you post, you argue that the confusion is that the first sentence of [180] can only lead to “a right of standing”, not “obligation to cooperate with the United Nations”.
    As the jurisprudence of the Court refers to the consequence of obligations erga omnes as that all state have “a legal interest in protecting” a given right. I didn’t see how you interpret “a legal interest in protecting” into “a sole right of standing”. Can you clarify on this point?

    2. As the obligation bearers in the first and second sentence of [180] are different i.e., “all States” and “all Member States” respectively, I agree with your statement that “In referring to the obligation to cooperate, the Court does not explicitly draw the causal link from erga omnes.” But I think it is too far to say that “Just because the reference to the obligation to cooperate immediately follows the recognition of the erga omnes character of the obligation to respect self-determination does not mean the latter follows from the former.” I see a link between them, but the Court fails to state it explicitly. I read the [180] as while all States have legal interest…, in the specific context of the UN, the Member States have an obligation to cooperate with the UN… I think this is a good faith reading of the [180].

    Minh

    Rana Moustafa says

    May 25, 2019

    Thank you Craig and Sarah for your post. I agree with you that the ICJ was not applying article 41 of the Articles on State Responsibility. I add to what has been said that the Court referred in paragraph 180 only to the "member states" and not "all states" when it talked about the duty of cooperate . I believe that the reference to the "member states’" duty to cooperate with the UN means that the Court was merely applying the duty to cooperate which emanates from being a member in the U.N. (ICJ advisory opinion on the interpretation of the agreement between the WHO and Egypt)

    Sarah Thin says

    May 27, 2019

    Dear both,

    Many thanks for your comments! We would like to note/clarify a few things in response.

    In response to Minh Tran's comment:

    1. First, we would like to note that we understand the term ‘legal interest’ as meaning simply ‘an interest protected by law’. How exactly that interest is protected will depend on the nature and content of the rule or rules protecting the interest. When the Court refers, in Barcelona Traction, to the ‘legal interest’ of all states in the protection of certain rights (which are the subject of certain obligations erga omnes), it is simply referring to the existence of a rule granting a right of standing to all states to invoke responsibility for a breach of one of these obligations. This can be deduced primarily because of the position and context of the reference in relation to the rest of the judgment: it occurs in the context of discussion of rights of standing (or the absence thereof), therefore it can be assumed that this was the point of the Court’s comments. In addition, Article 48 ARSIWA is generally thought of as a codification [not sure if you want to use that word] of the dictum in Barcelona Traction relating of obligations erga omnes (see ILC commentary to ARSIWA p111-2 [7], ‘the focus of obligations to the international community as a whole is essentially on the legal interest of all States in compliance—i.e. … in being entitled to invoke the responsibility of any State in breach’; p116 [2]; p126-7 [2], [8]). There is no clear evidence for the expansion of the concept of erga omnes beyond this right of standing.

    2. As we have said, if the Court did intend to make the causal link between the erga omnes characterisation and the obligation to cooperate in [180], this would mean that the Court was conflating obligations erga omnes and jus cogens. There is no legal basis for such a causal link unless the Court is taken to be expanding the concept of erga omnes beyond that which has previously been recognised and, for the reasons we give in the post, we do not believe this to be the case.

    In response to Rana Moustafa:

    As you say, a more general obligation on states to cooperate with an international organisation of which they are a member may indeed exist for the reasons mentioned in the WHO Advisory Opinion. Yet, in [180] this obligation does not seem to be based on such reasoning. Instead, reference is made to the Friendly Relations Declaration, and a more specific duty to cooperate towards the realisation self-determination in the context of decolonisation.

    Once again, many thanks to you both for continuing this discussion.

    Best,
    Craig and Sarah

    John R Morss says

    June 8, 2019

    As I should have said earlier, many thanks to the authors for their helpful analysis. Yes, a modest (standing-focused) version of EA surely seems preferable. (I do wonder, eg, whether a duty to 'respect' a right is much of a duty...in which case of course, the right is not much of a right.)

    John R Morss says

    June 8, 2019

    oops EO