Actio Popularis, Jus Cogens and
Offenses Erga Omnes?
Alfred P. Rubin
For many years, scholars of international law have been trying to translate their moral insights into rules of law binding on others. Antecedents
of those attempts can easily be traced back to the divine law notions of
biblical days,1 the substitution of the political and moral notions of political leaders for the divine law notions of their churchly competitors for
2
law-making authority, the “moral” approaches to law taken by scholars
during the European “Enlightenment” of the 18th century and, in general,
the documentable 3,000 year old dispute between “positivist” lawyers and
“naturalists,” including their subsets involving “divine law,” “moral law,”
amoral customary law, and other subsets.3 Whether a particular scholar
finds the model, the “ontology,” of the “positivists” or “naturalists” or one
of their subgroups more congenial to his or her way of thinking about international law, depends on psychological factors that vary with the individual and on Occam’s Razor, the unprovable rule of “Parsimony” that
requires each analyst to adopt as a rule and apply to reality the simplest
generality with fewest exceptions.4

This article is printed with the kind permission of John Carey and John
Pritchard, editors of International Humanitarian Law: Origins, Challenges & Prospects (Mellen Press, 2001). The volume in which it is scheduled to appear has
not yet been published.
 Distinguished Professor of International Law, The Fletcher School of
Law & Diplomacy, Tufts University.
1.
This is not the place for a full analysis of divine law notions. Briefly,
the logic is that because our God is the only true God, and She/He/It gave the land
to us, then all those others in the land must be violating God’s law an d can be
killed as outside of God’s protection. Indeed, they cannot be truly human since
they derive their lives from other sources than that of the true giver of life, our
God. Evidences of this sort of thinking are too plentiful from biblical days
through the Nazi Holocaust and events today in Northern Ireland and the former
Yugoslavia.
2.
See generally Alfred P. Rubin, International Law in the Age of Columbus, 39 NETH. INT’ L L. REV. 5 (1992).
3.
See generally Alfred P. Rubin, Enforcing the Rules of International Law,
34 HARV. INT’ L L.J. 149 (1993) (providing a summary analysis of these and other
subsets of “law”); A LFRED P. RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL
LAW (1997) [hereinafter RUBIN, ETHICS AND AUTHORITY] (providing a more elaborate general overview with quotations from the leading texts).
4.
“Essentia non sunt multiplicanda praeter necessitatem” (Essences
should not be adopted unless necessary). The Neo-Platonic notion of “essences”
265
266
NEW ENGLAND LAW REVIEW
[Vol. 35:2
Attempts to read “human rights,” fundamentally a moral conception, into the rules of law thus have raised ontological problems since time immemorial. The current phase of discussion and attempts to fit “human
rights” into a legal framework, to frame rules of behavior enforceable by
tribunals, can probably most easily be dated to the work of Sir Hersch
Lauterpacht, whose doctoral dissertation was published in 1927. 5 Beyond
showing that various “rules” of the international legal order reflect notions
that appear in some municipal legal orders, but with major differences
flowing from the different constitutional structures of various municipal
legal orders and the international legal order, Lauterpacht’s penchant for
reading moral rules into the rules of law revealed him as a most sophisticated “naturalist-moralist” who seemed to assume that those statesmen
who ignored the moral rules that underlay the structure of international
society were violating international law. 6
The problem of translating moral imperatives regarding what later were
called “human rights” to rules of enforceable law in the international legal
order seemed nearly insuperable. Certainly Occam’s Razor was implicated as the international legal order seemed to lack any law-creating technique beyond treaties (which are law only for the parties, like municipal
law contracts); and practices “accepted as law” (including the practice,
accepted as law, that treaties bind their parties); the municipal laws of
many states, which turned out to vary widely, the moral insights enshrined
as law for some states being found to be applicable as “rules” only in
some, but not all, other states; the insights of the most highly respected
publicists and tribunals, which turned out to reflect national and ontological prejudices that made them unconvincing to those whose conduct was
sought to be affected. Underlying rules of the international legal order
included rules on a higher, or deeper, level of generality, and seem to be
reflected in all sources: treaties, practices, analogous municipal law rules
and the decisions of prestigious tribunals and the writings of publicists.
Treaties are binding: sovereigns are all equal before the law.
as the root of logical thought is implicit in this early statement of the Razor. Nowadays the paraphrase given in the text probably suits scholars better.
5.
Antecedents of this line of thought can be shown to go back at least three
thousand years. The notion that “morality” is reason-based and universal probably
dates back at least to the time of Cicero and certainly achieved popularity among
18th century European intellectuals in the days of Wolff, Vattel, Voltaire and the
French Enlightenment. See supra note 3 and accompanying text. But the writings
of Sir Hersch Lauterpacht and the near universal agreement as to the evils of Hi tler’s Germany probably gave rise to its modern popularity.
6.
See HERSCH LAUTERPACHT, P RIVATE LAW SOURCES AND A NALOGIES OF
INTERNATIONAL LAW (1970). Lauterpacht was even more explicit in his book,
INTERNATIONAL LAW AND HUMAN R IGHTS .
See HERSCH LAUTERPACHT ,
INTERNATIONAL LAW AND HUMAN RIGHTS (1968). But his writings on this subject
are too numerous to cite unless specifically pertinent to the argument.
2001]
OFFENSES ERGA OMNES
267
If “human rights” were to be enforced by national means, the failures of
national authorities to enforce human rights could be perceived by outsiders as evidence of moral, not legal, defaults. To make them fit the pattern
of legal defaults, an international purview resting on effects, legal results
in the international legal order, was necessary. More than that, for those
defaults that involved true horrors as perceived by others, like genocide,
“ethnic cleansing” and the like, and particularly egregious “war crimes,”
some forms of international tribunal were considered essential, to apply
“objectively” an “international criminal law” against the highest officials,
including chiefs of state, whose policies or defaults led to the horrors perceived.
But no such tribunal existed outside of various victors’ tribunals (like
the post WWII allied tribunals at Nuremberg, Tokyo and elsewhere),
which did not apply the same “law” to the victors’ leaders that they applied to the leaders of the vanquished state or forces. And if such a tribunal were to be erected, from what would it derive its authority?
One proposal was to have the allied occupation government of Germany
try defeated Nazis for war crimes and crimes against (German nationals’)
humanity as if German tribunals, discharging the international obligations
of Germany.7 The presumed “conscience of mankind” was certainly not
the conscience of the accused or their accomplices, who might number in
the millions. And who would be its lawmakers? Would “common-law
crimes,” crimes defined by judges after the fact and not by legislators before the fact, be revived?8 Appeals to supposed precedents, like “piracy”
and the international traffic in slaves foundered on the rocks of fact; on
closer examination, although judicial and scholarly dicta were common,
real cases supporting universal conscience simply did not exist. 9 Worse,
assertions of “universal jurisdiction,” the notion that any state’s tribunal
could try any foreigner for his or her acts outside the normal legal reach of
the tribunal’s state’s legal process, foundered on the same rocks.
By the 1960’s, attempts were being made to find other rationales for
universal jurisdiction-to-adjudicate in matters the potential adjudicating
power felt were of international concern even though of no particular concern to the adjudicating state. There were many reasons for this interest,
notably the “group rights” to self-determination supported by legally unaf-
7.
See generally R.Y. Jennings, Government in Commission, 23 BRIT. Y.B.
L. 112 (1946).
8.
“Common-law” crimes still exist in some jurisdictions. They were abolished in the federal courts of the United States by 1816 when the Executive Branch
refused to bring a criminal charge against a person who had not violated a federal
statute. Justice Joseph Story in the United States Supreme Court seemed upset,
but could do nothing about it under the Constitutional system of the United States.
See United States v. Coolidge, 14 U.S. (1 Wheaton) 415, 416 (1816).
9.
See RUBIN, ETHICS AND A UTHORITY, supra note 3, at 84-130.
OF INT’ L
268
NEW ENGLAND LAW REVIEW
[Vol. 35:2
fected but morally outraged “outsiders,” 10 and the individual “rights” proponents who felt they could make war more humane by criminalizing
some war crimes and asserting for themselves the level of jurisdiction
necessary to enforce that criminalization.
The first attempts to gain a consensus on universal jurisdiction-toadjudicate in the world of the 1970’s was probably based on a much-cited
article by Professor Egon Schwelb seeking to revive the ancient Roman
law under which a stranger could bring a case on behalf of an injured
slave, where the slave had no “standing” in a Roman tribunal to bring the
action him or herself.11 But Schwelb, scholar as he was, quoted the Roman law sources and it quickly became apparent that the Roman law was
extremely narrow and did not authorize the universal jurisdiction-toadjudicate that had been sought. Moreover, the pretension that Roman
law was the embodiment of reason and universals could not convince
those familiar enough with Roman law to wonder if the status of slave and
other aspects of Roman law were really to be revived.
As to egregious “war crimes,” the 1949 Geneva Conventions, drafted
originally by the bureaucracy of the International Committee of the Red
Cross, a Swiss organization of highly experienced and concerned humanitarian activists, created a new category of “grave breaches” of the Conventions as the desired subset of “crimes” under the oft-mentioned international law of war.12 The legal result of attaching the label “grave breach”
10. The major drive in this regard was probably given by the decision of the
International Court of Justice in the South West Africa Cases. See South West
Africa Cases (Eth. v. S. Afr.) (Liber. v. S. Afr.) (Second Phase), 1966 I.C.J. 4
(July 18). By the thinnest possible margin in this highly emotive case involving
the application of South Africa’s apartheid rules to the territory of Namibia, ma ndated to it under the League of Nations, the court held that Ethiopia and Liberia
lacked the “jus standi” to complain of the purported violation of the Mandate
Agreement and the U.N. Charter by South Africa because none of their own n ationals was injured by the asserted violations.
11. See Egon Schwelb, The Actio Popularis and International Law, 2 ISR.
Y.B. ON HUMAN RIGHTS 46 (1972).
12. Whether the law relating to war crimes is properly considered “intern ational” or merely a branch of the municipal law of the warring parties also implicates Occam’s Razor. The practice of many countries is mixed, including the
practice of the United States. The 1863 “Lieber Code,” General Orders No. 100 to
the Union Armies in the Field, was considered a codification which applied only to
Union soldiers, and the Commandant of Andersonville Prison in Georgia was co nvicted by a Union Military Commission of violations of the international laws of
war in 1865. See The Trial of Captain Henry Wirz, 8 AM. S T. TRIALS 666 (John D.
Lawson ed., 1918), reprinted in 1 LEON FRIEDMAN, THE LAW OF WAR 783-98
(1972). It is possible that the simplest explanation is that victors tend to apply
their own versions of “law” to the vanquished as if that law were “international,”
while applying only their municipal laws to their own soldiers. Whether victors’
versions of international law represent international law indeed, when the same
2001]
OFFENSES ERGA OMNES
269
to an act was to require the states parties to the 1949 Conventions to:
[S]earch for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and . . . bring such persons, regardless of
their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over
for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a prima facie case.13
It would appear that this provision, now agreed by nearly all states in
the world thus apparently binding on all as a matter of positive law, creates by agreement a universal jurisdiction-to-adjudicate over “grave
breaches” even if not over all “war crimes.” But there are flaws in the
argument. First, it is not at all clear that the restrictions on jurisdiction-toadjudicate are not part of the jus cogens of the international legal order;
rules that cannot be changed by treaty. We shall return to this argument
later. Second, these four provisions of positive law, if they are binding,
have not been observed for about fifty years. This non-observance has not
been for lack of atrocities during that time. It has been because states
clearly do not think the obligations bind them. No second state has ever
complained, presumably because, in light of the South West Africa decision of the International Court of Justice, 14 none has believed it had the
“standing,” the legal (or to anticipate another argument, the practical) interest, to object to the apparent treaty violation. Third, even if applied by
distant states, the provisions are unlikely to result in successful prosecutions. Evidence both for the prosecution and defense would have to be
taken from documents and witnesses far removed from the jurisdiction of
the tribunal unless its jurisdiction-to-prescribe and to-enforce were expanded. That expansion would have to allow subpoenas to be issued with
effect in foreign territory in these criminal actions, or would have to
oblige the foreign governments involved to allow its own processes to be
rules are not applied to their own people, raises serious questions and an imput ation of hypocrisy.
13. Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 49, 6 U.S.T.
3114, 75 U.N.T.S. 31 [hereinafter Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, art. 50, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter
Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, art. 129, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Conventio n
III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, art. 146, 6 U.S.T. 3516, 75 U.N.T.S. 287 [herei nafter Convention IV]. The language is identical in all four Conventions.
14. See South West Africa Cases (Eth. v. S. Afr.) (Liber. v. S. Afr.) (Second
Phase), 1966 I.C.J. 4 (July 18).
270
NEW ENGLAND LAW REVIEW
[Vol. 35:2
used to achieve the same ends as administered by a foreign tribunal over
which it has no political or legal control. This happens to a limited extent
in extradition cases when the foreign government performs an arrest and
deportation at the request of a legal order in whose formulations or activities it has no voice. But the likelihood of serious disagreement seems obvious. Would the United States or the United Kingdom, for example, cooperate in producing evidence to convict Salman Rushdie of any offense
alleged against him by the Government of Iran? Or, to restrict the subject
to the laws of war, any offense alleged by the government of Iraq that
would involve a trial of General Norman Schwarzkopf for ordering the
bombing of what turned out to be a civilian bomb shelter in Baghdad during the Gulf War of 1992? Rather than enter into such discussions, states
have simply ignored their apparent obligations under the 1949 Geneva
Conventions. And again, no second state seems to have conceived itself
to have the legal “standing” or political interest to object. Fourth, the
“hand over” provision, probably intended to remove “extradition” from
the complexities of national extradition laws, is restricted to states “concerned,” thus indicating some “standing” or jurisdiction-to-adjudicate requirement. Why such a requirement applies to a state willing and able to
run a trial but not to a state in which an alleged offender has been found
and which is itself apparently required by positive law to run a trial, is not
clear. But it does appear that the negotiators of the 1949 Conventions
knew that universal jurisdiction-to-adjudicate could not be achieved by the
direct application of positive law.15 Fifth, the state concerned to which an
15 All four of the 1949 Geneva Conventions provide for each High Contracting Party to enact “any legislation necessary to provide effective penal san ctions for persons committing, or ordering to be committed, any of the grave
breaches . . . defined in the following article.” Convention I, Aug. 12, 1949, art.
49, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention II, Aug. 12, 1949, art. 50, 6 U.S.T.
3217, 75 U.N.T.S. 85; Convention III, Aug. 12, 1949, art. 129, 6 U.S.T. 3316, 75
U.N.T.S. 135; Convention IV, Aug. 12, 1949, art. 146, 6 U.S.T. 3516, 75 U.N.T.S.
287. The notion that all the High Contracting Parties intended to allow each other
jurisdiction to adjudicate in ignorance of the municipal legislation purporting to
define the pertinent “grave breaches” is too farfetched for further comment in this
place. Only one country, Germany, has in fact interpreted the provisions to pr ovide for universal jurisdiction and then exercised what it interpreted to be its own
jurisdiction to prescribe and to adjudicate over the acts of a foreigner alleged to
have committed such a “grave breach” against other foreigners abroad. See Public
Prosecutor v. Djaji, 92 AM. J. OF INT’ L L. 528, 530-32 (1998). This seems consistent with the German approach in at least one other case involving aircraft hijacking. See David M. Kennedy et al., The Extradition of Mohammed Hamadei, 31
HARV. INT’ L L.J. 5, 35 (1990). Compare the similar and dubious United States
approach in civil matters as discussed in Alfred P. Rubin, U.S. Tort Suits by Aliens
Based on International Law, 18 THE FLETCHER F. OF W ORLD AFF. 65 (1994);
Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge
of Honor, 83 AM. J. INT’ L L. 461 (1989). It remains to be seen whether the Ger-
2001]
OFFENSES ERGA OMNES
271
accused should be handed over was to be a state that could make out a
“prima facie case.” But the “prima facie case” requirement does not apply
to a state to which the alleged offender has fled and which is nonetheless
obliged by the quoted treaty provisions to search for the alleged offender
and try him or her. How these provisions of positive law are to be rationalized is not at all clear. As noted above, the result has been that these
provisions have been ignored for fifty years. And if the obstacles are inherent in the separation of municipal legal orders in a state system, then
the obstacles cannot be overcome by mere firm assertion today; they are
part of the “jus cogens,” the “ordre public” of the international legal order.16
Now, let us return to the jus cogens argument. The phrase “jus cogens”
first appeared in modern positive international law in the 1969 Vienna
Convention on the Law of Treaties article 53:
Treaties conflicting with a peremptory norm of general international law
(jus cogens)
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.17
Article 64 of the same Convention says: “If a new peremptory norm of
general international law emerges, any existing treaty which is in conflict
with that norm becomes void and terminates.” 18
No specification was given in either article as to the substance of any
such “peremptory norm.”
While some scholars doubted that there was any substance to the set of
rules from which treaties could not derogate, 19 others began putting their
man interpretation will stand the test of experience or be applied to defendants
from states whose protests are politically significant to Germany.
16. HUGH THIRLWAY, INTERNATIONAL C USTOMARY LAW AND C ODIFICATION
29-30 (1972). I am indebted to Dr. Michael Byers for bringing this passage to my
attention. See M ICHAEL B YERS, CUSTOM, POWER AND THE POWER OF RULES 12-13
(1999).
17. Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155
U.N.T.S. 331 [hereinafter Vienna Convention]. The Vienna Convention formally
entered into force for its Parties on 27 January 1980. The United States has never
ratified this Convention, but has cited some of its terms as codifying general inte rnational law.
18. Vienna Convention, May 23, 1969, art. 64, 1155 U.N.T.S. 331.
19. For an early example, see Alfred Verdross, Jus Dispositivum and Jus
272
NEW ENGLAND LAW REVIEW
[Vol. 35:2
favorite substantive rules into the category 20 and an apparent consensus
soon emerged that “human rights” were not only “rights” in the legal order
as distinguished from the moral or other normative orders, but were rights
from which no derogation by treaty could be permitted: jus cogens. The
distinction between rules that distributed authority, what Kelsen called
“primary rules,”21 and rules that governed the exercise of that authority 22
was apparently forgotten.
This apparent lapse of memory is all the more confusing when it is remembered that the seminal mention of jus cogens in a modern document
clearly relates to the distribution of authority; the “constitutional” rule of
the international legal order that withholds from all states the legal power,
or authority, to conclude a binding treaty in some cases.
Now, all known legal orders render some agreements void when they
conflict with the authority-distributing norms, the constitutional norms, of
that order, the ordre public. Examples in municipal orders are easy to
find. An agreement between addicts as to how their stash of drugs should
be divided would not be enforced by a legal order that made possession of
those drugs illegal even if there were no issue as to purchase and sale or
other “normal” property rights. Although a good faith purchaser for value
might derive a valid title to stolen goods in some circumstances, and the
contract of sale would be upheld, a similar contract among thieves would
not. This is not because the thieves cannot pass good title; by hypothesis
they can, to a good faith purchaser for value. It is because it would be
against the fundamental public policy of the legal order enforced by the
forum to allow a thief the authority to pass valid title beyond the limits
prescribed by the community’s lawgiver. The community’s lawgiver
might be a legislature (which need not be bound by any notion of jus cogens) or a common law process (which would also not be bound by any
notion of jus cogens), or by a constitution restricting law-making or adjudicating authority in one way or another. The determination of what the
community’s rules might be that represent jus cogens, its distribution of
law-making or law-declaring authority, can quickly be seen to be com-
Cogens in International Law, 60 AM. J. OF INT’ L L. 55 (1966). There are many
others.
20. See generally Marjorie M. Whiteman, Jus Cogens in International Law,
With a Projected List, 7 GA. J. OF INT’ L L. 609 (1977). There are many others.
21. See HANS KELSEN, THE P URE THEORY OF LAW 134-37 (1934, rev’d ed.
1960, Max Knight, trans., 1967); see also H.L.A. HART, THE CONCEPT OF LAW 92
(1967) (calling them “secondary rules”). In his seminal redefinition of legal co ncepts, FUNDAMENTAL LEGAL CONCEPTIONS (1923), Wesley Hohfeld referred to
them as legal “powers.” See Goble, A Redefinition of Basic Legal Terms, 35
COLUM. L. REV. 535, 540 (1935).
22. What Kelsen called “secondary rules,” Hart termed “primary rules” and
Hohfeld, part of the right/duty relationship.
2001]
OFFENSES ERGA OMNES
273
plex, not a matter to be resolved by simple assertion.
There is no doubt in my mind that international society has restricted
the authority of treaty-makers in some ways. The ways the international
legal order restricts the authority of states to conclude treaties are most
evident when considering things like self-defense. No treaty would stop a
group from defending itself, and the allegation that self-defense is forbidden by the positive law would be dismissed out of hand by any group supporting those seeking to exercise the “right.”
The situation is similar if we focus on the concept of “justice.” People
disagree about justice and the word is clearly one in the moral order,
whatever its use in the positive legal order. For example, a convicted
criminal in a municipal legal order might reject the order of the tribunal to
go to jail. If he or she does so, the normal remedy is the use of force. The
convict might well conclude that “society” is “unjust” but the society that
determines the processes of the law will simply ignore the protest. The
“bottom line” to the moral argument based on the conception of “justice”
would be resolved by the use of force, which is an amoral remedy (it can
be used in a “just” cause or in an “unjust” cause) and does not resolve the
underlying question because each individual, however anti-social or even
mad (by community standards) remains free to determine his or her conception of “justice.”23
It is noteworthy that the inability of a treaty to limit the authority of a
people to defend themselves exists independently of the “justice” of their
cause. It might well be true that being conquered and governed by a foreign group or an internal aristocracy is conceived by all human moralists
as “better” for everybody than a war of self-defense or independence.24
23. Aristotle defines “justice” in his great work on “Ethics” (which is merely
the Greek word for what in Rome was called “mores,” the precursor of our own
word “morals”). Aristotle distinguishes between “commutative,” “distributive,”
“rectificatory” and other forms of “justice.” He denies that “legal justice” is purely “natural,” although some might have a “natural origin,” becaus e, although the
gods might know abstract justice, “all our human justice is mutable.” Human
“conceptions of justice shift and change.” ARISTOTLE, NICHOMACHEAN E THICS
295 (H. Rackham trans., Cambridge: Harvard University Press 1939). “Natural
law” to Aristotle did not include ethics (morality). The Greek word for “nature” is
“physis,” from which we get our word “physics.” The “polis” to Aristotle was a
product of the “natural laws” of economics and sociology, not of morality. See
ERNEST BARKER , THE POLITICS OF ARISTOTLE 5 (1946).
24. See, e.g., FLAVIUS J OSEPHUS , THE WARS OF THE J EWS passim & preface
§§ 4, 11 (William Whiston trans., Ernest Rhys ed., New York: E.P. Dutton & Co.
1915). Josephus first fought for the Jews (of which he was one), later suppo rted
the Romans when he was convinced that Roman law and order, even corruptly
administered, were far preferable to the equivalently corrupt and fanatic Jewish
leadership and the death and destruction that would flow from war in 66 -70 AD.
An excellent modern translation correcting Whiston’s errors (which a comparison
of some passages indicates to be fewer than the new translator implies) is FLAVIUS
274
NEW ENGLAND LAW REVIEW
[Vol. 35:2
But the conviction of the moralists will not stop the struggle or convince
the fighters for “freedom” or “independence” that they should stop defending their preferred authority structure from the onslaughts of those
whom outside moralists agree are the more humane rulers.
Thus another example of jus cogens other than self-defense in the international order might include self-governance. No treaty language can
prevent a revolutionary change of government. A treaty by which an outside power purports to derive the authority to intervene in matters that a
people regard as internal to themselves has always been disregarded by
those people and they seem to have resented any legal implication that
they were violating any rule of law in determining their own future constitution. The foreigner might shout “law” at them, but the situation would
be resolved only by agreement or by the use of force. In the first case, no
problem would exist if the agreement were approved by whatever tribunal
or other law-interpreting agency the contesting parties accept. If one of
the parties persisted in regarding the revolution as “illegal,” violating a
treaty which forbade revolution, the argument might persist for generations25 but would ultimately be resolved by the facts on the ground.
Whatever the idealized state of things, those who want to deal with the
people or territory controlled by the revolutionary authorities will have
had to come to terms with those authorities, and even a former metropole
will have been forced by the facts to “recognize” independence sooner or
later regardless of treaties that seemed to forbid it.
But there is no reason to stop at Josephus and the Roman Empire or
mandated territories under the League of Nations. Modern examples of
this orientation abound, first France then the United States believed that
they could help determine the government of Vietnam. Treaties were
concluded embodying these desires. They all failed. Today, NATO believes that it can determine the future of a province of the Republic of
Yugoslavia without controlling events on the ground there. Having realized that control on the ground is probably necessary to assure the return
of Kosovar refugees, their views seem to be changing, and resistance by
JOSEPHUS , THE JEWISH WAR (G.A. Williamson trans., E. Mary Smallwood, rev.
ed., Penguin Books 1986).
25. For example, the independence of the Netherlands from Spain, declared
in 1581, was not “recognized” by Spain for nearly 70 years. But whoever wanted
to trade with the Dutch had to meet Dutch, not Spanish, legal requirements. The
UN’s Council for Namibia was established to govern Namibia after the International Court of Justice had held that the Security Council had “determined” (wit hout using that magic word) the “illegality” of South Africa’s continued occupation
of Namibia in accordance with the terms of the 1922 League of Nations Mandate.
But until Namibia’s actual independence, anybody wishing to go there had to have
South African permission or risk capture and trial under the South African version
of law.
2001]
OFFENSES ERGA OMNES
275
the displaced authorities of the government of the Republic of Yugoslavia
is patent. A construction of various treaties to give the appearance of that
authority in NATO not only fails to do more than present an unconvincing
polemical case, but has resulted in untold misery in addition to the misery
inflicted on the people of Kosovo by a villainous government.
The question now is whether treaties that violate “human rights” are
valid in law. To answer that question, it would first be necessary to determine who decides. In what appears to outsiders to be the contorted
logic of those intent on “ethnic cleansing” or the like, there is nothing villainous about killing ethnic rivals. No amount of argument can change
their minds. To outsiders, the value of life and property appear higher
than the value of “ethnic purity” so the actions done at the expense of the
former to help achieve the latter seem monstrous. But the evil is obviously moral, not legal. To make the evil a legal default, it is necessary to find
a substantive rule of law forbidding it.
That substantive law cannot be found in any treaty binding on the villains committing the wicked acts. If jus cogens is argued to forbid such
ethnic-centered wickedness, it can also be argued to forbid the intervention in internal affairs that a “human rights” rescue would involve. While
some might see the superiority of the “human rights” components of the
moral law, and in their minds convert the moral imperatives into legal
rules of substance, those whose actions are sought to be affected can differ. In an argument about differing standards of behavior, at the current
stage of the world, the stronger force rules.
Nor is the evolution of the world order towards greater reliance on persuasiveness and consensus. Violations of so-called “human rights” occur
with distressing frequency and in places far separated. The conscience of
mankind is apparently revolted by such actions only when they are undertaken by foreigners or violate a municipal legal order controlled by those
whose conceptions of human rights have been converted to the positive
law of the society they control. In those many cases in which municipal
legal orders permit human rights abuses - even deny the humanity of those
belonging to an outcast group or religion - the tender consciences of those
of us who deplore those actions are helpless to apply legal remedies. We
are not unable to apply moral remedies, but more of that later.
The same basic rules apply to the so-called “humanitarian law” of
armed conflict. Those rules that derived from custom must derive from
the evaluations of statesmen that various practices are to their political
advantage. For example, if prisoners are treated badly, then the “enemy”
will fight to the death rather than surrender, which costs the “victor” unnecessary lives; prisoners forced to reveal information will babble whatever the torturing inquisitor would like to hear regardless of truth. Indeed,
the Supreme Court of the United States has been quite blunt about it when
considering the Lieber Code of 1863, the laws binding Union forces during the American Civil War of 1861-1863. The Court stated:
276
NEW ENGLAND LAW REVIEW
[Vol. 35:2
To the Confederate army was, however, conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent
rights as belonged under the laws of nations to the armies of independent
governments engaged in war against each other. 26
And the express positive law of war sets out the “rules” that those adhering to the pertinent conventions find it in their interest to support.
Interesting problems arise when the express positive law represents
what seems a “victory” by human rights advocates over military advisers.
Examples of that lie in the categorization of the armed conflicts and in the
agreed treatment of those accused of “grave breaches” of the 1949 Geneva
Conventions.27
As to the former, articles 2 and 3 of the four 1949 Geneva Conventions
identically distinguish between armed conflicts between two or more parties to the Conventions and so-called armed conflicts not of an international character occurring solely in the territory of a single Party. Missing
from this characterization are armed conflicts in which a single state is the
Party but which has episodes outside its territory. An example would be
the Vietnam conflict with incidents in areas of the Gulf of Tonkin lying
beyond the limits defining territorial seas. When the United States joined
it was forced to redefine the conflict as one involving two Parties to the
1949 Conventions despite the contentions of both North and South Vietnam that each was properly the government of an undivided whole. The
same problem will exist if there is an armed conflict over the governance
of Taiwan, which both the government of the People’s Republic of China
and the government of the Republic of China have for about fifty years
unrealistically regarded as part of an undivided single China. Would
American involvement in “collective self-defense” of the government of
the Republic of China be an intrusion into an affair internal to China, or
participation in an international armed conflict? It is likely that serious
opinions will differ, and that the difference of learned opinion will be evident when questions arise as to the conformity to Article 2 or Article 3 of
the 1949 Conventions of the United States or any other Party to the conflict. When it was proposed to supplement the four Conventions through
26. Ford v. Surget, 97 U.S. 594, 605 (1878). Note that the decision to apply
the “laws of nations” conception of the laws of war was a policy-based decision by
the federal government of the Union, not a decision conceded to have been co mpelled by facts or concepts of justice. The phrase “laws of nations” referred to the
jus gentium, the municipal laws common to “civilized nations,” and not to the jus
inter gentes, what has been called “international law” beginning in the generation
after Jeremy Bentham invented the phrase. For a summary history of that evolution, see RUBIN, ETHICS AND AUTHORITY, supra note 3, passim & 12, 64-69.
27. See supra note 13.
2001]
OFFENSES ERGA OMNES
277
another round of negotiation in 1973, a study group of the American Society of International Law recommended that if any revision of the four
Conventions were to be undertaken, one of the points to be resolved
should be the expansion of either Article 2 or Article 3 to cover all armed
conflicts not covered by the other article. That suggestion was ignored
and the 1977 Protocols to the 1949 Conventions, instead of filling the
gaps, exacerbate them by relating solely to Article 2 conflicts (Protocol I)
and Article 3 conflicts (Protocol II) with no attempt to fill the gap between
them.28
Another argument to support “universal standing” rests upon the Latin
phrase “erga omnes.” It is asserted that some activities by states not directly affecting third states are nonetheless offenses erga omnes, against
everybody, and thus that everybody has the necessary “standing” to complain, perhaps even to present claims or bring a case before the International Court of Justice. The precise legal effects are not clear of asserting
some action to represent a violation of the law erga omnes. It is possible
to argue that some actions by some actors in the international arena justify
an international claim supported by diplomatic correspondence, reprisal or
other enforcement; provide “standing” for a complaint before the judicial
arm of the United Nations; or relate solely to the “international community” being able to lodge the international legal order’s equivalent of a
“criminal” complaint against specific actors. The phrase has appeared in
argument before the International Court of Justice and was specifically
affirmed in one case.29 But in that case, the application of the phrase was
in fact denied30 and it appears that in no instance has its application been
affirmed by the Court.
As a rationale for universal jurisdiction of an international tribunal in
matters deemed to be “criminal,” there thus seems no support for the doc-
28. See Protocol Additional to the Geneva Convention of 12 August 1949,
and Relating to the Protection of Victims of International Armed Conflicts, June 8,
1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 [hereinafter Protocol I]; Protocol Add itional to the Geneva Convention of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S.
609, 16 I.L.M. 1442 [hereinafter Protocol II]. As this is written, about 22 years
after the close of the Conference, the United States has not ratified either Protocol
I or Protocol II.
29. See Barcelona Traction, Light, and Power Co. (Belg. v. Spain) (Second
Phase), 1970 I.C.J. 3, ¶¶ 33-36, 91 (Feb. 5).
30. The case was decided against Belgium on the ground of lack of “jus
standi” to represent Belgian shareholders allegedly mulcted of their assets in Spain
by a Spanish tribunal holding bankrupt under Spanish law a Canadian corporation
doing business in Spain. In that regard, the Court followed the precedent of the
South West Africa Cases. See supra note 10. There are no known cases giving
any application to the erga omnes phrase in any claim, based on property rights,
alleged “human rights” abuses or anything else.
278
NEW ENGLAND LAW REVIEW
[Vol. 35:2
trine of offenses erga omnes or any other form of universal jurisdiction-toadjudicate either in treaty law (except for the parties to the particular treaties in which it might be mentioned), customary law based on state practice, or even any clear and wide-spread municipal law applicable by analogy to the international legal order. The only support for what seems to
be an argument for universal jurisdiction-to-adjudicate seems to come
from publicists, not even courts. And the logic of the publicists supporting universal jurisdiction-to-adjudicate or any other implication of attaching the phrase erga omnes to any known facts seems remarkably elusive.
The most persuasive of the arguments supporting universal jurisdictionto-adjudicate over offenses erga omnes seems to rest on the notion of the
international community of states conforming to 18th century European
notions of the international community being itself a civil society, and its
legal enforcement and adjudication system being analogous to that of a
single state. In that view the reach of the legal enforcement system of
each individual state’s municipal law extends to some acts of foreigners
abroad. That extension rests in large part on the interest of the community
in enforcing some rules regardless of the unwillingness or inability of particular injured parties to bring a civil case. Murder is the obvious example, where the dead person cannot bring the case and no living person can
claim to be materially injured by the death, but the municipal community
might insist on the sanctity of life as a basic premise. Whether all municipal communities react to such an “offense” by giving the appropriate
“standing” to enforcement authorities such as are common in Europe and
the Western Hemisphere seems likely, but not demonstrated. In fact, historically, in primitive English law a “wergild,” a payment of money in lieu
of corporal punishment, was sufficient to satisfy the needs of the community for “justice”31 and it is not clear that the interest of the international
community today goes beyond attempting to restrict recourse to war,32
leaving atrocities to the moral order and to the legal enforcement systems
31. See 1 S IR FREDERICK P OLLOCK & FREDERIC W ILLIAM M AITLAND, THE
HISTORY OF E NGLISH LAW 33 (2d ed. 1952) (stating “[h]is [the thegn’s] wergild,
for example, the fixed sum with which his death must be atoned for to his kindred,
or which he might in some cases have to pay for his own misdoing, was six times
as great as a common man’s . . . ”).
32. The United Nations Charter, a treaty, requires all disputes to be settled
by “peaceful means,” and forbids to its members the threat or use of force against
the territorial integrity or political independence of any state. U.N. CHARTER art.
2, para. 3, 4. The Charter allows an exception for “enforcement measures” authorized by the Security Council, and actions taken in self-defense even without Security Council authorization. U.N. CHARTER art. 2, para. 7 & art. 51. In light of the
history of the past fifty years, it is possible to argue that these provisions have
large loopholes in them (for example, with regard to territorial disputes where each
contesting state defines the disputed territory as its own) or have been ignored
without legal penalty.
2001]
OFFENSES ERGA OMNES
279
of the states affected by the atrocity, states with “standing.” While firm
assertions are common among publicists, there do not appear to be any
analyses of the concept or rationale for considering any actions to be offenses erga omnes in the usual literature.
The reasons in the “real world” as distinguished from the hypothetical
worlds posited by some publicists, for these rules of standing are clear.
On the simplest level, as mentioned in the discussion of “grave breaches”
of the 1949 Geneva Conventions above, to present diplomatic correspondence concerning events over which the complaining state has no material
but only moral interest, intrudes “outsiders’” values into affairs that states
consider unique to themselves. It is always possible to impose moral remedies. Indeed, the United States has many statutes restricting trade or investment with regimes we do not like for moral reasons. 33 But those statutes apply only to persons within American jurisdiction-to-prescribe, toenforce and to-adjudicate. They do not represent action under international law, but only under American municipal law. Thus, whatever their
classification as “law” or “morality” by an outside observer, in the absence of a treaty limiting its parties’ authority to restrain trade or investment, no question of international law could be raised by them; they are
strictly municipal sets of rules adopted for reasons deemed adequate by
the law-makers of American society alone.
In some cases the moral remedies applied by municipal law or by the
personal moral convictions of those who prefer not to deal with persons
connected with atrocities as perceived by the moralist, seem inadequate to
the circumstances. There are two obvious responses. First, even if inadequate to alter the behavior of another, the moral remedies might be all that
the international order allows us. Indeed, if any unaffected state could
impose its moral convictions on another, who is to say that the result
might not be even more atrocious than the current order’s implication that
atrocities can be restricted to the jurisdiction-to-enforce of the legal order
in whose name they are committed. Second, it is not correct that the moral order is helpless to enforce anything. Perhaps it does not act quickly
enough to suit the moral convictions of some, but assistance to the victims
of atrocity and isolation of the villains who commit atrocities are possible.
The problem is similar to that of child abuse in a municipal legal order,
where the values of secure home-life conflict with the values of childhood
innocence. As far as I know, no municipal legal order has found a better
answer than to allow the morally concerned neighbor to offer asylum to
the escaping child or to have community adjudge “not guilty of murder”
33. See, e.g., Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. § 5001
(1986) (repealed 1993). There are many such bits of national legislation expressing individual states’ policies based on moral evaluations and not resulting from
any persuasive international legal argumentation.
280
NEW ENGLAND LAW REVIEW
[Vol. 35:2
the act of the child in killing his or her oppressor, as happens internationally when a community feeling itself oppressed declares its independence
and supports it by arms. And sometimes the neighbor refuses asylum or
the supposedly enlightened international community supports the arms of
the dominant group against the claims of those who feel themselves oppressed.34 This is not to argue the rights or wrongs either morally or legally of any particular action or inaction. The problems seem clear enough in
the abstract and not to be solved by grand generalities about human rights
and universal, to prescribe them, to enforce them, or to adjudicate about
them.
In sum, it appears that current legal theories resting on an asserted universal jurisdiction in organs of the international community are the product of good-hearted thinking but cannot work as expected in the world of
affairs. The appeal to Latin phrases conceals a lack of thought as to what
those phrases actually meant in Roman law and in how they can be applied in the current international order. To ignore the problems of “standing” or to assert that the rules already evident in international practice and
codified in the positive law of the United Nations Charter 35 do not apply in
the case of some selected atrocities by some selected villains (but not to
others), or that lawyers’ and judges’ views of “law” can overrule the political decisions of the leaders of the various communities that compose the
international community today, is much more than can be accepted by
anybody truly concerned with peace and justice.
34. The unsuccessful Biafran struggle for independence in Nigeria comes to
mind. Unfortunately, there are many other examples.
35. See, e.g., U.N. CHARTER, art. 2, para. 1. (stating “[t]he Organization is
based on the principle of the sovereign equality of all its Members”). Article 51 refers to the “inherent” right of self-defense. See U.N. CHARTER, art. 51; see also Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
14, ¶¶ 174-82 (June 27) (holding these basic provisions to be part of general international law regardless of the technical inapplicability of the Charter).