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“Obligations Erga Omnes”- Under the international law of reprisals, the general rule is

that only the directly injured State is entitled to act against the violation of an international
obligation by another State.
Obligations erga omnes are concerned with the enforceability of norms of international law,
the violation of which is deemed to be an offense not only against the State directly
affected by the breach, but also against all members of the international community.
 In the Barcelona Traction case, the ICJ recognized the existence of norms which
are “the concern of all States.”
 In the East Timor case, the ICJ held: “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...”

“Jus Cogens”
Art. 53 of the Vienna Convention on the Law of Treaties provides:
“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory norm
of general international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the
same character.”

Decision ex aequo et bono – a decision in which equity overrides all other rules.
While a judge may not give a decision ex aequo et bono, he/she can use equity to interpret
or fill gaps in the law, even when there is no express authorization to do so. The principle
of equity is a general principle common to national legal systems [See River Meuse case
(Netherlands v. Belgium)]

UNITED NATIONS CHARTER

CHAPTER I: PURPOSES AND PRINCIPLES


Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about
by peaceful means, and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations which might lead to
a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these
common ends.

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance
with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state
or shall require the Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement measures
under Chapter Vll.

CHAPTER II: MEMBERSHIP

Article 3
The original Members of the United Nations shall be the states which, having participated
in the United Nations Conference on International Organization at San Francisco, or
having previously signed the Declaration by United Nations of 1 January 1942, sign the
present Charter and ratify it in accordance with Article 110.

Article 4
1. Membership in the United Nations is open to all other peace-loving states which accept
the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security
Council.

Article 5
A Member of the United Nations against which preventive or enforcement action has been
taken by the Security Council may be suspended from the exercise of the rights and
privileges of membership by the General Assembly upon the recommendation of the
Security Council. The exercise of these rights and privileges may be restored by the
Security Council.

Article 6
A Member of the United Nations which has persistently violated the Principles contained in
the present Charter may be expelled from the Organization by the General Assembly upon
the recommendation of the Security Council.
CHAPTER III: ORGANS

Article 7
1. There are established as principal organs of the United Nations: a General Assembly,
a Security Council, an Economic and Social Council, a Trusteeship Council, an
International Court of Justice and a Secretariat.
2. Such subsidiary organs as may be found necessary may be established in accordance
with the present Charter.

Article 8
The United Nations shall place no restrictions on the eligibility of men and women to
participate in any capacity and under conditions of equality in its principal and subsidiary
organs.

International Court of Justice – ICJ


 It is the primary judicial branch of United Nations and settles legal disputes and
provides advisory opinions submitted to it by its member states. ICJ is a civil court.
 UNSC enforces its court’s rulings.
 ICJ is composed of 15 judges elected for 9 years term by the UNGA and UNSC.
 International Court of Justice is one of the most important guarantors of peace,
security and co-operation among states.
♦ India and ICJ
 Justice Dalveer Bhandari currently serves as permanent judge at ICJ.
 Recent ruling by ICJ, awarded Bangladesh more than 9,700 square miles in the Bay
of Bengal, ending a maritime dispute spanning more than three decades.

International Criminal Court – ICC


 It was set up after the ad hoc tribunals to deal with Rwanda war crimes proved
ineffective. ICC is a criminal court.
 ICC is based on the principle of complementarity. ICC was not created to supplant
the authority of national courts. However, when a state’s legal system collapses or
when a government is a perpetrator of heinous crimes, the ICC can exercise
jurisdiction. ICC is a court of last resort.
 USA opposed the ICC for fear that it will be used politically against U.S. nationals.
 ICC ensures that those who commit serious human rights violations are
held accountable. Justice helps promote lasting peace, enables victims to rebuild
their lives and sends a strong message that perpetrators of serious international
crimes will not go unpunished.
♦ India and ICC
 India is not a party to ICC. The major objections of India to the Rome Statute are :
o Since ICC is subordinate to UNSC, permanent members are vested with
unbridled powers.
o Terrorism and nuclear weapons usage is not in the purview of ICC.
 There is criticism that India on signing up the Rome Statute, would immediately come
under ICC jurisdiction for human right violations under AFSPA, abuses in Naga
movement, Kashmir conflict.

Let us have a look at the table to know the major differences between ICC and ICJ.
INTERNATIONAL COURT OF JUSTICE-
INTERNATIONAL CRIMINAL COURT – ICC
ICJ

ESTABLISHEMENT YEAR 1946 2002


Independent. Not governed by U.N. Can receive
Official court of U.N, commonly known as
RELATIONSHIP WITH U.N referrals from UNSC. Can initiate prosecution without
“World Court”.
UN action.

HEADQUARTERS Peace Palace , Hague Hague

U.N Member states. Can give advisory Individuals accused of international crimes. Uses
JURISDICTION opinions to UN bodies. Cannot try International Law, as war crimes violate Geneva
individuals. Applies International Law Convention.

Sovereignty, boundary disputes,


maritime disputes, trade, natural Genocide, crimes against humanity, war
TYPES OF CASES
resources, human rights, treaty violations, crimes, crimes of aggression.
treaty interpretation, etc.

States that ratify the U.N. Charter


become parties to the ICJ Statute. Non-UN
DERIVES AUTHORITY FROM Rome Statute
member states can also become parties to
the ICJ by ratifying the ICJ Statute.

ICJ decision is binding. UNSC can review


APPEALS Appeals Chamber, according to Rome Statute.
if states do not comply.

contribution from state parties to the Rome Statute;


voluntary contributions from the U.N; voluntary
FUNDING U.N funded contributions from governments, international
organizations, individuals, corporations and other
entities.

Article 27 Internal law and observance of treaties


A party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. This rule is without prejudice to article 46.

Article 46 Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and concerned a rule
of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in
the matter in accordance with normal practice and in good faith.
[...]

Article VII, Section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.
Article II, Section 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
all nations.
SOURCES

Article 38 of International Court of Justice


1. The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
Restatement of the Law, Third, Foreign Relations Law of the United States
Part 1 - International Law and Its Relation to United States Law
Chapter 1 - International Law: Character and Sources

§ 101 International Law Defined

International law, as used in this Restatement, consists of rules and principles of general
application dealing with the conduct of states and of international organizations and with their
relations inter se, as well as with some of their relations with persons, whether natural or
juridical.

§ 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the international
community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to the
creation of customary international law when such agreements are intended for adherence by
states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected
in customary law or international agreement, may be invoked as supplementary rules of
international law where appropriate.

§ 103 Evidence of International Law

(1) Whether a rule has become international law is determined by evidence appropriate to the
particular source from which that rule is alleged to derive (§ 102).
(2) In determining whether a rule has become international law, substantial weight is accorded
to
(a) judgments and opinions of international judicial and arbitral tribunals;
(b) judgments and opinions of national judicial tribunals;
(c) the writings of scholars;
(d) pronouncements by states that undertake to state a rule of international law, when such
pronouncements are not seriously challenged by other states.