On 5 February 1970 the International Court of Justice delivered a judgment concerning a dispute between Belgium and Spain on damages that Belgium claimed to have been caused to its nationals, the shareholders in the Barcelona Traction, Light and Power Company Ltd, by acts of the organs of the Spanish State which Belgium argued to be breaches of interna-tional law.8 One part in that Barcelona Traction judgment, known as the dictum,9 took a life of its own and became arguably more significant to international law than the main merits of the case. In the dictum the Court stated that
presentation on the hybrid approach is given in chapter 1.4 in relation to the outline of this study and its key findings. Hybrid approach itself is comprehensively presented in chapter 3.4.4 and applied in the analysis of existing international environmental case law in chapter 4.3.
7 See e.g. Hännikäinen 1988, p. 15, pointing this out in relation to jus cogens.
8 ICJ Reports 1970, at p. 6, paras. 1–2.
9 Obiter dictum (roughly translating to “a remark in the passing” or “by the way”) is a concept borrowed from the common law systems, meaning “[s]omething said by a judge while giving judgment that was not essential to the decision in the case.” In common law systems, such statements are “part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases”, see Law 2015, obiter dictum. However, international law, or at least the judicial system under the ICJ, does not work like this through precedents: obiter dicta are not necessarily less significant for subsequent jurisprudence than ratio, which is shown by the remarkable weight of the Barcelona Traction dictum itself. See Tams 2005, pp. 167–173 discussing criticism against the concept of erga omnes based on the fact that it was given as obiter dictum.
“[w]hen a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obli-gations, however, are neither absolute nor unqualified. In particular, an essential dis-tinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplo-matic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. - - Such obligations derive, for exam-ple, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corre-sponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by inter-national instruments of a universal or quasi-universal character.”10
The Court thus acknowledged a category of obligations, which, in view of their im-portance,11 can be enforced by all States. The Court distinguished a contrario diplomatic protection – which was the issue in the case – from obligations erga omnes by defining what the latter concept was.12 This was the first time the Court confirmed the existence of such concept of general international law. Prior to Barcelona Traction judgment, the traditional view in international law had a tendency of being restrictive towards the concept of standing:
as a rough simplification, only the directly or tangibly injured States could invoke the re-sponsibility of the wrongdoing State.13 The possibility of actio popularis – of which the erga
10 ICJ Reports 1970, p. 32, paras. 33–34.
11 The material approach discussed in chapter 3.4.3 is strongly based on this “importance” statement by the Court. However, the importance given to the obligation is a necessary element in the emerging of any erga omnes obligation, as will be shown in chapter 3.4.4. In this respect, it should already be noted that erga omnes and jus cogens, i.e. peremptory norms of international law as representing some of the fundamental values of the international community, overlap to certain extent, an issue which will be discussed in chapter 3.5.
12 In paragraph 35 the Court stated, inter alia, that “[o]bligations the performance of which is the subject of diplomatic protection are not of the same category. It cannot be held, when one such obligation in particular is in question, in a specific case, that al1 States have a legal interest in its observance. - -“
13 See e.g. Root stating in 1916 that “[u]p to this time breaches of international law have been treated as we treat wrongs under civil procedure, as if they concerned nobody except the particular nation upon which the injury was inflicted and the nation inflicting it. There has been no general recognition of the right of other nations to object”, in view that the international community should change in this respect after the experiences of the First World War, see Root 1916, pp. 7–8. However, this does not mean that actio popularis or general standing was unheard of or never suggested: for example, Hugo Grotius argued in 1625 that kings had the right
omnes is a manifestation of14 – was not recognized in international law before the Barcelona Traction, although there were several conventional international instruments recognizing general interest long before the dictum.15 As defined in the dictum, all States can be held to have a legal interest in the protection of obligations erga omnes. By definition, erga omnes is therefore closely related to enforcement of international law.
Enforcement of international law concerns “attempts to induce a State to cease its wrongful conduct and to remedy its consequences”,16 and the concept of erga omnes suggests that for certain obligations the right of enforcement belongs to all States. Thus, although it is clear that erga omnes and enforcement are interrelated, it is not excluded here that the erga omnes status of an obligation may also imply other legal effects.17 However, similarly to Tams, it is assumed here that the concept is mostly linked to enforcement, and in this relation two measures are focused on in this thesis: ICJ proceedings and countermeasures.18
of actio popularis, see Grotius 1625, Book 2 Chapter 20 para. XL(1) (p. 1021 in Tuck 2005), see also Nolte 2002 for comprehensive discussion on the topic. According to Crawford, the reciprocal concept of responsi-bility was closely related to the consolidation and positivist movement in international law of the nineteenth century, see Crawford 2012, p. 581. The traditional philosophy of bilateral (or reciprocal) responsibility is also shown by the fact that still in first reading of the 1996 Draft Articles on State Responsibility there were sug-gestions to amend the Article 1 by inserting the phrase “towards another State” or “to an injured State” to the definition of to whom responsibility may be owed to. However, these suggestions were rejected by the ILC, see Crawford 2002, p. 11. See more on restrictive and expansive approach to standing pre-Barcelona Traction in chapters 2.3.2 and 2.3.3.
14 In this thesis discusses actio popularis and erga omnes as denoting the same concept. However, they may also be seen as separate, but at the least very closely linked concepts, as demonstrated by e.g. the Joint Dis-senting Opinion of Judges Onyeama, Dillard, Jiménez De Arechaga and Sir Humphrey Waldock in Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253, at pp. 369–370. See Sands 2003, p. 188 making this point.
15 See chapter 2.3.3.
16 Tams 2005, p. 5.
17 See e.g. Judge Weeramantry arguing that the presence of erga omnes obligations may result in legal grounds for estoppel, Separate of Opinion of Vice-President Weeramantry, Gabčikovo-Nagymaros Project (Hungary v.
Slovakia), Judgment, ICJ Reports 1997, p. 7, starting at p. 88, and for more detailed discussion on this in chapter 4.3.3 footnotes 488–489. See also Ragazzi 1997 p. xii, pointing to actio popularis as a “corollary” of erga omnes, thus indicating that the concept may encompass other legal effects. Some other effects, such as the “territorial depth” discussed in chapter 3.2.2, which may be the kind of “corollary” of the erga omnes obligations. However, in this relation the overlap between erga omnes and jus cogens makes the assessment of these effects difficult, which further justifies leaving the topic out of the present study.
18 Tams 2005, pp. 5–6. Case law by other courts and tribunals than the ICJ are also discussed in this thesis, but the focus is on the ICJ as the main institution for the enforcement of erga omnes obligations. Including ICJ proceedings in the discussion seems obvious from the context in which erga omnes has been considered by the ICJ, see Ibid., p. 11, whereas countermeasures are a necessary element in a vertical international system as it is still today, see Bederman 2002, p. 818, and chapter 2.2.4 of this study. Other “circumstances precluding wrongfulness”, as codified in Part 1 Chapter V of the ARSIWA, are applied in this study when adequate (e.g.
necessity is briefly discussed in chapter 4.3.2).
Consequently, enforcement of erga omnes obligations is linked to the question of who has standing to invoke the responsibility of the wrongdoing State. Therefore, the philosophy behind the concept is to ensure effective protection for obligations which – in view of their importance – are not just subject to any interest, but legal interest of all States.