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66 Nordic J. Int'l L. 211 (1997)
Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules

handle is hein.journals/nordic66 and id is 223 raw text is: Nordic Journal of International Law 66: 211-239, 1997. 211 @ 1997 Kluwer Law International. Printed in the Netherlands. Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules MICHAEL BYERS * Fellow, Jesus College, Oxford; Visiting Fellow, Max-Planck-Institutfiir ausla'ndisches offentliches Recht und Volkerrecht, Heidelberg, Germany Abstract. Few concepts in international law have attracted as much attention or created as much controversy as jus cogens and erga omnes rules. This article attempts to show that jus cogens rules are rules of customary international law, and then to elucidate the relationship between these customary rules and the concept of erga omnes. This article explains that: in contrast to jus cogens rules, erga omnes rules may arise either as customary rules or through treaties; a jus cogens or erga omnes rule could apply to only a limited number of States; although jus cogens rules are necessarily erga omnes rules, erga omnes could exist which were not of a jus cogens character. 1. Introduction Few concepts in international law have attracted as much attention or created as much controversy as jus cogens and erga omnes rules. Jus cogens rules, otherwise known as peremptory rules, are non-derogable rules of interna- tional public policy. They render void other, non-peremptory rules which are in conflict with them. Erga omnes rules, on the other hand, are rules which, if violated, give rise to a general right of standing - amongst all States subject to those rules - to make claims. Although it is widely assumed that the concepts of jus cogens and erga omnes are related, international lawyers have yet to agree on the character of that relationship. Some have asserted that there are important differences between the two types of rules, while others have argued that the two concepts refer to different aspects of the same rules, and are therefore coterminous. It is also widely assumed that the special characteristics of jus cogens and erga omnes rules are not the result of one or more of the voluntarist (i.e., consent-based) sources of international law, in particular treaties and custom, but rather of natural law or some entirely new, sui generis mechanism of * I wish to thank James Crawford, Anne Denise, Emanuela Gillard, Heike Krieger, Claus Kress, Georg Nolte and Jayaprakash Sen for their helpful comments on earlier drafts.

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