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Home Posts tagged "erga omnes"

Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Published on May 21, 2019        Author:  and
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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. Read the rest of this entry…

 

Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic

Published on October 8, 2018        Author: 
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On Friday 30 September 2018, Palestine introduced an Application before the ICJ against the United States of America for violation of the Vienna Convention on Diplomatic Relations (VCDR), on account of the transfer of the US embassy from Tel Aviv to Jerusalem. This is yet another judicial episode of David vs Goliath, like the Military and Paramilitary Activities case (Nicaragua v. US) or the South China Seaarbitration (Philippines v. China) were. But this time the David seems even more fragile, since the Goliath disputes the statehood of Palestine and consequently the many rights attached to it – among them, recognition and respect of sovereign equality in the first place.

The seisin of the ICJ has taken international lawyers aback: the reactions went from enthusiastic excitement to sheer incredulity or scepticism. This is not surprising: the case, whether it is decided on the merits or not, has the potential of becoming one of the great cases of international law, those which will be studied for decades by international law students, which will give guidance on highly debated issues, like statehood and erga omnes obligations. It is not every day that the Court is offered such an occasion.

Now, of course, it is certain that the US will challenge the Court’s jurisdiction. The only question is whether they will formally introduce preliminary objections or opt for non-appearance (like China or Russia have lately done). Non-appearance having rarely served the cause of the recalcitrant State, the US would be well advised not to follow that path; all the more if their case on jurisdiction is as strong as Marko Milanovic considers it to be in his post of 30 Sept. 2018. Non-appearance is generally an epidermal reaction by a super-power to legal challenges against its policy. The US’ infuriated announcement of withdrawal from the Optional Protocol to the VCDR, made on 3 Oct 2018, denotes this attitude. But it has no effect on Palestinian proceedings, which were introduced before the denunciation could become effective. 

One may wonder instead why the United States have not made this move earlier. After all, Palestine did warn them, through a verbal note of 4 July 2018, of the dispute on the VCDR. And on the same day, Palestine deposited with the Secretary General a declaration recognizing the jurisdiction of the Court under the Optional Protocol (both texts are available as annexes to Palestine’s Application). Maybe no one in Washington considered that Palestine’s notifications should be taken seriously. Be that as it may, the Application was made on time and the consensual basis of jurisdiction will be difficult to challenge. Read the rest of this entry…

 

The Settlement Agreement between Greece and the Former Yugoslav Republic of Macedonia

Published on June 18, 2018        Author: 
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On 12 June, Athens and Skopje announced that they have reached an agreement to resolve a dispute over the former Yugoslav Republic’s name that has troubled relations between the two states for decades. The agreement was signed at Prespes Lake, a lake at the border of Albania, Greece, and the former Yugoslav Republic of Macedonia, on 17 June. Despite the historic significance of the deal, following its announcement, the two governments have faced furious backlash. Voices on both sides condemn the agreement in the strongest possible terms, with the President of Macedonia, Gjorge Ivanov, rejecting the deal point-blank and the Greek opposition submitting a motion of no confidence against Prime Minister Alexis Tsipras and his government, which failed to carry late on the night of 16 June, a few hours before the signing of the Agreement.

The present contribution provides an overview of the main points of the Agreement reached between the two neighbours to end their 27-year-long bitter dispute.

Historical Background

The former Yugoslav Republic of Macedonia is the interim designation of the constitutionally named ‘Republic of Macedonia’ (Republika Makedonija) at the time of accession to the UN. The Republic of Macedonia declared independence in 1991 at the dissolution of the SFRY, and sought international recognition. The use of the name ‘Macedonia’ has created a long-lasting dispute with the neighbouring country of Greece. Read the rest of this entry…