LAW7001: A Comparative Analysis of Jus Cogens and Erga Omnes in Law

This report provides a comparative analysis of Jus Cogens and Erga Omnes obligations within the framework of international law. It begins by defining Jus Cogens as peremptory norms recognized by the international community, which cannot be violated, and Erga Omnes obligations as those owed by states to the international community as a whole. The report highlights the key differences, emphasizing that Jus Cogens norms are hierarchical and concern the status of a norm, while Erga Omnes obligations grant the right of enforcement to any state. It references the Vienna Convention on the Law of Treaties and the Barcelona Traction Case to illustrate these concepts. The report concludes by discussing the implications of violating Jus Cogens norms, which can lead to state liability, as opposed to the breach of Erga Omnes, which provides enforcement rights. The report thus provides a clear distinction between the two, highlighting their functions and implications in international legal practice.

LAW7001
Coursework 1

Table of Contents
1. How can we distinguish jus cogens from obligations erga omnes?..............................1
REFERENCES..................................................................................................................3

1. How can we distinguish jus cogens from obligations erga omnes?
The concepts named jus cogens and erga omnes have gained extensive scholarly
attention within the domain of international law. Several arguments have been presented in the
context of these concepts to portray the distinction between them. This paper seeks to
demonstrate such based on multiple aspects.
A just cogens rule stipulated within the Vienna Convention states that it is a norm which
is recognised as well as accepted by the international community of States as a norm in the
whole form, against which no derogation is acceptable. It can only be altered by a subsequent
norm of general international law that is known to have the same character. In simple terms, it is
a rule that needs to be universally accepted by every state. It is said to be the highest class of
rules within the hierarchical structure of international law. As against this, obligation erga omnes
is an obligation which each state possesses towards the whole international community. The
nature of rules leading to the generation of erga omnes is in a form that gives every state the
right to make a complaint of breach by any other state of a certain rule, as each state tends to
possess interest within the preservation of rules that create erga omnes obligation (De Wet,
2013).
The major difference between the two concepts lies in their functions. Jus cogens confer
on certain norms like the ones that are constituted within the Geneva Conventions of the year
1949 which is acknowledged to be a hierarchical superiority amidst all the other kinds of norms
of the domain of International Law. Jus cogens can thus be said to be necessarily elevated
subsets of the Customary International Law, initially recognized within the Vienna Convention
upon the Law of Treaties (Weatherall, 2015). So, this concept is associated with the status of
the given norm. On the contrary, obligation erga omnes confers upon a right of standing
belonging to the stated norms that are often known to overlap with the ones covered under the
concept of jus cogens. In case none of the other jurisdictional issues emerges, this points out
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towards the implication that any of the member states can file a case in front of the international
tribunal in an instance whereby a state is found to be guilty of conducting ethnic cleansing or
similar kinds of wrongs.
The concept of erga omnes was stipulated in the dictum of the International Court of Justice
within the Barcelona Traction Case. Hereby, the court introduced, the possibility of the existence
of general legal interest of states concerning the enforcement of a specific set of international
obligations. A state cannot be impacted upon, directly, by the breach of an obligation erga
omnes to look out for a relevant as well as reliable remedy.
The violation of jus cogens norms leads to the occurrence of potential state liability
(Kleinlein, 2017). Opposed to this, it is known that the existence of obligation erga omnes as
well as its breach results into the right of enforcement.
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REFERENCES
De Wet, E., 2013. Jus cogens and obligations erga omnes. The Oxford Handbook of
International Human Rights Law.
Weatherall, T., 2015. Jus cogens: international law and social contract. Cambridge University
Press.
Kleinlein, T., 2017. Jus cogens re-examined: value formalism in international law.
doi.org/10.1093/ejil/chx015
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