lex
specialis derogat legi generali
), so that, for example, treaty rules between
states as
lex specialis
would have priority as against general rules of treaty
or customary law between the same states,
228
although not if the general
rule in question was one of
jus cogens
.
229
The position is complicated by the existence of norms or obligations
deemed to be of a different or higher status than others, whether derived
from custom or treaty. These may be obligations
erga omnes
or rules of
jus
cogens.
While there may be significant overlap between these two in terms
of the content of rules to which they relate, there is a difference in nature.
The former concept concerns the scope of application of the relevant rule,
that is the extent to which states as a generality may be subject to the rule
in question and may be seen as having a legal interest in the matter.
230
It
has, therefore, primarily a procedural focus. Rules of
jus cogens
, on the
other hand, are substantive rules recognised to be of a higher status as
such. The International Court stated in the
Barcelona Traction
case
231
that
there existed an essential distinction between the obligations of a state
towards the international community as a whole and those arising vis-`a-
vis another state in the field of diplomatic protection. By their very nature
the former concerned all states and ‘all states can be held to have a legal
interest in their protection; they are obligations
erga omnes
’. Examples of
such obligations included the outlawing of aggression and of genocide and
the protection from slavery and racial discrimination.
232
To this one may
227
See the
Nicaragua
case, ICJ Reports, 1986, pp. 14, 95.
228
See ILC Report on Fragmentation, pp. 30 ff., and
Oppenheim’s International Law
,
pp. 1270 and 1280. See also the
Gabˇc´ıkovo–Nagymaros
case, ICJ Reports, 1997, pp. 7,
76; 116 ILR, pp. 1, 85; the
Beagle Channel
case, 52 ILR, pp. 141–2; the
Right of Passage
case, ICJ Reports, 1960, pp. 6, 44; 31 ILR, pp. 23, 56; the
Legality of the Threat or Use
of Nuclear Weapons
case, ICJ Reports, 1996, pp. 226, 240; 110 ILR, pp. 163, 190; the
Tunisia/Libya Continental Shelf
case, ICJ Reports, 1982, pp. 18, 38; 67 ILR, pp. 4, 31, and
the
Nicaragua
case, ICJ Reports, 1986, pp. 3, 137; 76 ILR, pp. 349, 471.
229
See e.g. the
OSPAR (Ireland
v.
UK)
case, 126 ILR, p. 364, para. 84, and further below,
p. 623.
230
See e.g. Article 48 of the ILC Draft Articles on State Responsibility and the commentary
thereto, A/56/10, pp. 126 ff. See also the
Furundˇzija
case before the International Criminal
Tribunal for the Former Yugoslavia, 121 ILR, pp. 213, 260.
231
ICJ Reports, 1970, pp. 3, 32; 46 ILR, pp. 178, 206.
232
See also the
Nicaragua
case, ICJ Reports, 1986, pp. 14, 100; 76 ILR, pp. 349, 468, and
Judge Weeramantry’s Dissenting Opinion in the
East Timor
case, ICJ Reports, 1995,
pp. 90, 172 and 204; 105 ILR pp. 226; 313 and 345. See, in addition, Simma, ‘Bilateralism’,
s o u r c e s
125
add the prohibition of torture.
233
Further, the International Court in the
East Timor
case stressed that the right of peoples to self-determination ‘has
an
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