Summary
Obligations owed to the international community as a whole, in whose protection all States have a legal interest: in the Court’s 9 July 2004 Opinion, the obligations Israel violated that are erga omnes are respect for the Palestinian people’s right to Self-determination and certain obligations under international humanitarian law, and they ground the consequences the Court states for all States (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.50-51).
Details
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The Court, citing Barcelona Traction (I.C.J. Reports 1970, p.32, para. 33), holds such obligations are by their nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.”; the assertion in East Timor that the right of peoples to self-determination “has an erga omnes character” was “irreproachable”, and the humanitarian-law rules described in Nuclear Weapons as “intransgressible principles of international customary law” incorporate obligations essentially erga omnes in character (PDF p.30, p.50-51).
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From that character, with common Article 1 of the Fourth Geneva Convention, the Court states that all States must not recognize the illegal situation created by the wall, must not render aid or assistance in maintaining it, must see to it that any impediment to Palestinian self-determination is brought to an end, and that States parties must ensure Israel’s compliance with the Convention (PDF p.51).
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Judge Koroma, concurring, treats the Court’s findings themselves as erga omnes: based on authoritative rules, binding on all States, which all have an interest in their observance (PDF p.56).
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Judges Al-Khasawneh and Elaraby take the opposite direction from Higgins and Kooijmans: Al-Khasawneh holds the discharge of international obligations including erga omnes obligations cannot be made conditional upon negotiations (PDF p.79), and Elaraby holds the legal consequences flowing for all States from measures severely impeding the Palestinians’ exercise of their erga omnes right to self-determination should have been included in the dispositif, not confined to the reasoning (PDF p.93-94).
Where sources disagree
- Judges Higgins and Kooijmans, in the same file, reject erga omnes as the basis for those third-State consequences while subscribing to non-assistance. Higgins: the Barcelona Traction dictum was directed to jurisdictional locus standi and, as the ILC Commentaries put it, concerns rights in which “all states have a legal interest in their protection” — “It has nothing to do with imposing substantive obligations on third parties to a case.”; non-recognition and non-assistance follow from a competent organ’s determination that a situation is illegal, and common Article 1 is simply a provision of an almost universally ratified convention (PDF p.63-64). Kooijmans voted against operative subparagraph (3)(D) in part because the Court’s reasoning to it is not persuasive (PDF p.65); his full argument (PDF p.73-76) works through Article 41 of the ILC Articles on State Responsibility: paragraph 1’s duty to co-operate is a joint and co-ordinated effort encompassed in subparagraph (3)(E), not an individual third-State obligation, and paragraph 2’s non-recognition duty, whose ILC examples are formal or quasi-formal legal claims, amounts as applied to an illegal fact to “an obligation without real substance”; he fully supports non-assistance, and on common Article 1 he follows Kalshoven’s travaux study to say he does not know whether the Court’s scope for it is correct as positive law.
Related pages
Self-determination, Fourth Geneva Convention, Rosalyn Higgins, Pieter Kooijmans, Abdul G. Koroma, Awn Al-Khasawneh, Nabil Elaraby