| This dissertation seeks to clarify the nature of obligations owed to the international community as a whole or obligation erga omnes, that is to say to analysis the connotation, denotation, and the status of obligations erga omnes in international law. As obligations embodying the interests of the international community as a whole, obligations erga omnes stand in a higher level than those bilateral obligations. Yet, as a concept obligations erga omnes has been developed for several decades, it is connected tightly with several other concepts such as jus congens, international crimes and obligation arising under a premptory norm of general international law, so that it's essential to compare obligations erga omnes with these concepts so as to reveal the differences and interrelations among them and to show the significance of obligations erga omnes in international law. The dissertation is also trying to talk about the results and the enforcing of violation of obligations erga omnes and the influences of the concept to soverignity, the basis of international law and the system of international law. However, the so called 'mysteriousity' of obligations erga omnes such as the unclearness of the denotation,the category or the enforcement of it, etc is also to be discussed.This dissertation is divided into 5 chapters.Chapter One discusses about the emergence and the development of the concept of obligation erga omnes. This chapter begins with the compliment of the Draft Articles on State Responsibility by International Law Committee in which state responsibility is divided into two levels, i.e. the bilaterial responlibity and obligations owed to the international community as a whole. Early in the Vienna Convention on the Law of Treaties jus congens was raised and embodies that there are two levels of legal norms in international law. Since the International Court of Justice put forward the concept of obligations erga omnes in the decision of the Barcelona Traction, Light, Power Company case in 1970, the case has been talked so frequnently by international lawyers and have inspred discussion among states that J. Tames said that it seems "the two paragraphes have taken on a life of their own". The ICJ has applied to the concept in several other cases such as the Nuclear Test case, the Namibia Case, the Teheran Hostages case, the East Timor Case and the recent Israeli Wall Case etc.The compilement of the Draft Articles on State Responsibility by International Law Committee lasted several decades and finished the second reading in 2001, in the second reading the concept of obligations owed to the international community as a whole replaced the concept of international crimes since most of the states object the concept of international crimes of states. This is an important change.In fact the emergence of obligations erga omnes can be attributed to the trend of peace and human rights thought. The legal foundation of obligations erga omnes is the commen interest of the international community. The international society is said to be an anarchy society and the relationships are horizontal, yet the commen intrrest of the international community makes it possible for the emergence of the higher level of obligations i.e. obligations erga omnes. The Latin phrase 'erga omnes' thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international order based on law. Some researchers of international law sees obligations as part of the ongoing process of constitunialization of international law since it reflect 'a common core of norms essential for the protection of communal values and interects.Chapter Two mainly discusses the difference and relation of the concept obligations erga omnes and other relating concepts such as international custom, jus congens, international crimes and seriour breaches obligations under premptory norms of general international law.There are some common characterics between obligations erga omnes and international customs maily is the scope of validity. The differences lies that: (l)States can avoide the applying of a special custom through 'continous objection' rule,wheras it cannot avoide obligations erga omnes through the same rule. (2)Unless an international custom belongs to jus congens, a conrty can derogate the validity of international customs through treaties, wheras it cannot derogate the validty og obligations erga omnes through treaties. (3) International customs usually cause bilaterial relationships while obligations erga omnes cause relashionship between a state and the international community as a whole.There are both interrelation and differences between obligationa erga omnes and jus congens .The common point is that they both protect the basic moral value and the common intrersts of the international community. Obligations erga omnes are usually obligations confirmed by norms of jus congens ,wheras jus congens are not totally obligations erga omnes, in a word, the extension of jus congens is wider than obligation erga omnes. Jus congens is prescribed in the Vienna Convention on the Law of Treaties while obligations owed to international community as a whole is only stipulated in several cases by the ICJ and in Draft Articles on State Responsibility. In Draft Articles on State Responsibility (the seconf reading) it is prescribed in Part IV 'The Implementation of International Responsibility of a State' in article 33 section 1:'the obligations of the responsible state set out in this Part may be owed two another state ,to several states ,or to the international community as a whole' ,thia article ia echoed by article 42 'Invocation of Responsibility by an injured state' ,and article 48 ' invocation of responsibility by a state other than an injuered state', these two articles both includes occasions to invocation of responsibility if the obligation breached is owed to the international community as a whole, the former occasion is invocated by an injuered state,the later is invocated by a state other than an injuered state,while the reasons to invocate responsibility is the same, i.e. obligations owed to the whole community as a whole.Recalling the first reading and the second reading of the Draft Articles on State Responsibility, we can see an important change between these two reading is in the first reading article 19 is about 'international crimes', and in the second reading it is replaced by Chapter III in part two ('content of international responsibility'): serious breaches of obligations under prempotary norms of general international law, that is to say this part is about the responsibility, and article 40 and 48 are belongs to chapter I of part three ('the implementation of international responsibility'):the invocation of responsibility of a state. Here we can see international crimes is replaced by serious breaches of obligations under prempotary norms of general international law.Chapter Three mainly discusses the extension or scope of obligations erga omnes. It will talk about the ways of identifying obligations erga that qualify as obligations erga omnes. It' certain that invasion, slavery, genocide, apartheid and racial discrimination, respect to national self-determination are well consented to be obligations erga omnes. There is another kind of items which are not so sure, this is pointed to a serious breach of an international obligation of essential importance for safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.The analsying of invasion, slavery, genocide, apartheid and racial discrimination , respect to national self-determination is essentialso as to discover the characterics of them so as to answer why they belong to obligations erga omnes. To probe the second kind of items is essential, too.Chapter Four mainly talk about the legal consequences of the breach of obligations erga omnes, in other words, the enforcing of obligations erga omnes. To be enforced or not is one of the reason obligations being regarded 'mysterious'. A practicable way to determine is that: Whther all states, ating individually, are entitled to respond to breaches of such obligations by ( 1 ) instituting contentious preceedings before the International court of Justice, and (2) resorting to countmeasures against the states responsible for the breach. Another way of enforcing is collective measures of the international community. For example, according to UN Charter, to invasion, the invaded state can take self-defence measures before the Security Council taking countmeasures under the collective security system. The countmeasures of the Security Council is a kind of collective countmeasure. The international community and the members can take countmeasures collectively or sepeartely, for example after Iraq invaded Kuwait in 1999, UN passed resolutions to impose sanctions to Iraq, and all states comply with the UN resolution about embargo.In Southwest Africa the International court, the court showed it's attitude to reduce those values to sue. Although in the Draft article 42 and 48 stipulated an injured state and a state other than an injured state can invocate responsibility if the obligation breached is owed to the international community as a whole, and in part two the content of state responsibility can be duty of performance, cessation and non-repetition, and reparation, but whether a state can institute contentious preceding before is ont so sure.Chapter Five mainly discuss obligations and its enfluence to an old question, that is: the basis of international law. Grotus believed that international law is combined by natural law and volitional law, and there minght be conflicts between natural law and volitional law, in his whole lifetime what he done was to learn about the combination of these two kind of laws so as to decrease conflicts between them. Natural law considered the legal basis is human rationality. In the 19th century, the positive law considered the basis of international law is the volition of states. The concept of obligations erga omnes may help understand the legal basis of international law, the natural law should not be negelected in international law. The legal basis is not only the volition of states, there shoud be niche for human rationality and the fundmental value of international community.This chapter also focused on the influences of obligations erga omnes to the system of international law. After the Second World war, the field of international law is enlargedly promptly more and more new branches of interntiaonla emerged such as interntiaonal environmental law, international intellectual property law, interntional investment law, international marinetime law, international human right law,etc. One of the result of diversification and expansion of international law is that it makes people acknowledge the conflicts among the norms of international law. International law has shown the character of fragmentation. The developing international law is not a unified system, it is composed of the international coexisting law and the international cooperation law, and it is showing a valuedirected trend. The enlargement of international law has brought large amount of subsystems which have come to be"self-contained regimes" and so that lead to the conflicts of norms in international law and the difficulty in applying the norms. The fragmentation is dueto the inherent character and the new developing of international law. What we have to do is to learn about how to prevent the conflicts and contradictions of international law, and it is not realistic and possible to make it into a unified system, however it is the fragmentation makes international law a system full of tension and vitality. The conflicts in different branches of international law and the fragmentation of international law makes it urgent to drcease the coflicts between norms of international law, so that it's essential to learn about the different levels of international law. Obligations erga omnes mainly deals with the problems supass national interests, in other words it focuses on the questions only to be solved as questions in the international community as a whole. The concept of bligationse erga omnes helps to understand the fragmentation of international law since the fragmentation is connected with the 'inter parties'characteric of it, obligations jus congens may provide a feasible way to solve the problem of conliflicts beteen norms of international law, that is to give prority to obligations than other obligations, to give prority to norms of jus congens than other norms of international law. |
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