| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.1. | General Questions |
| 2.1.4. | Ius cogens / Obligations erga omnes |
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East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[p. 102] 29. However, Portugal puts forward an additional argument
aiming to show that the principle formulated by the Court in the case concerning
Monetary Gold Removed from Rome in 1943 is not applicable in the present
case. It maintains, in effect, that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could
require it, individually, to respect them regardless of whether or not another
State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice has an erga omnes character, is irreproachable. The principle
of self-determination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court (see Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion,
I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the
essential principles of contemporary international law. However, the Court
considers that the erga omnes character of a norm and the rule of
consent to jurisdiction are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct
of a State when its judgment would imply an evaluation of the lawfulness of the
conduct of another State which is not a party to the case. Where this is so, the
Court cannot act, even if the right in question is a right erga omnes.
[pp. 131-132 S.O. Ranjeva] A prior decision, in the meaning in which
it is understood in the Judgment delivered in the Monetary Gold case
would be essential, it seems to me, when the object of that prior decision is
subjective rights, in other words, rights relating to the legal situation of a
State which has not consented to the jurisdiction or which does not appear
before the Court. Can the same principle be transposed in cases where the prior
decision concerns a question of objective rights opposable erga omnes? This
question can no longer be avoided since the jus cogens falls within the
province of positive law. The difficulty resides in the fact that, by nature,
the rules of objective law transcend the order of conventional rules and that
disputes involving objective law call into question the legal interests of third
States. Is the purpose of the rule of Monetary Gold to limit the domain
of the Court's juirisdiction ratione juris solely to disputes involving
subjective rights? To refer without any explanation to the jurisprudence in Monetary
Gold leaves too many questions open for it to satisfy the requirements of
the good administration of justice, one of whose components is the
foreseeability of legal decisions; this observation is all the more valid since
the same results could have been obtained and reinforced on the basis of an
actual analysis of Portugal's Application.
[pp. 172-173 D.O. Weeramantry] An erga omnes right is,
needless to say, a series of separate rights erga singulum, including
inter alia, a separate right erga singulum against
Australia, and a separate right erga singulum against Indonesia. These
rights are in no way dependent one upon the other. With the violation by any
State of the obligation so lying upon it, the rights enjoyed erga omnes become
opposable erga singulum to the State so acting.
To suggest that Indonesia is a necessary party to the adjudication of that
breach of obligation by Australia is to hamper the practical operation of the
erga omnes doctrine. It would mean, very much along the lines of the
illustrations in Section 2 (vi) above, that Indonesia could protect any country
that has dealings with it in regard to East Timor from being impleaded before
this Court, by Indonesia itself not consenting to the Court's jurisdiction. In
the judicial forum, the right erga omnes could to that extent be
substantially deprived of its effectiveness.
Moreover, in any event, Indonesia would be protected against any suggestion
of res judicata against it. The right erga omnes, when asserted
against Australia, becomes a right erga singulum which, in turn, becomes
a res judicata erga singulum against Australia, in the event of the
success of the claim. It would have no adjudicatory quality against Indonesia,
thus preventing the "Monetary Gold principle" from operating
to bar the action against Australia.
[p. 215 D.O. Weeramantry] It has thus happened that no Judgment of
this Court thus far has addressed the consequences of violation of an erga
omnes obligation. The present case, had it passed the jurisdictional
stage, would have been just such a case where the doctrine's practical effects
would have been considered. Since this opinion proceeds on the basis that the
merits must be considered, it must advert to the consequences of violation of an
erga omnes obligation.
All the prior cases before this Court raised the question of duties owed
erga omnes. That aspect is present in this case as well, for every State
has an erga omnes duty to recognize self-determination and, to that
extent, if Portugal's claim is correct, Australia is in breach of that general
erga omnes duty towards East Timor 1.
However, this case has stressed the obverse aspect of rights opposable
erga omnes - namely, the right erga omnes of the people of East
Timor to the recognition of their self-determination and permanent sovereignty
over their natural resources. The claim is based on the opposability of the
right to Australia.
In Barcelona Traction, the Court's observations regarding
obligations owed to the international community as a whole were not
necessary to the case before it. Yet, though its observations were obiter,
the notion of obligations erga omnes developed apace thereafter 2.
The present case is one where quite clearly the consequences of the erga
omnes principle follow through to their logical conclusion that the
obligation which is a corollary of the right may well have been contravened.
This would lead, in my view, to the grant of judicial relief for the violation
of the right.
I am conscious, in reaching this conclusion, that the violation of an
erga omnes right has not thus far been the basis of judicial relief
before this Court. Yet the principles are clear, and the need is manifest for a
recognition that the right, like all rights, begets corresponding duties.
| 1 | Footnote omitted. |
| 2 | Footnote omitted. |
