OBLIGATIONS ERGA OMNES IN THE CONTEXTGENERAL THEORY OF LAW

Abstract

The article is devoted to the study of the concept of obligations erga omnes in the context of general theory of national law, to the definition of their essence and place in the system of legal relationship. The work demonstrates that due to certain terminological differences that are traditionally characteristic of the general theory of law and the theory of international law, the use of the term “obligations erga omnes” in domestic legal science needs some clarification. The author analyzes the possibility of belonging of obligations erga omnes to different groups of legal relationship, as well as the use of the concepts “obligations erga omnes” and “duties erga omnes”.
Considering that in law an obligation, as a rule, means legal relationship in which one party (obligor) is obliged to perform a certain action in favor of the other party (obligee) or to refrain from it, any obligations are usually taken to refer to concrete relative legal relationship in which the clearly defined right of one party corresponds to the clearly defined duty of the other. However, such a configuration of rights and duties is not inherent in obligation serga omnes, because in them the absolute duty of one part corresponds to the multiplicity of obligees, which are states as the main subjects of international law. From the point of view of the theory of modern international law, the international community as a whole cannot be considered as one individualized subject in the legal relationship of erga omnes character. As a result, obligations erga omnes are more similar to general or general regulatory legal relationship, which stands out along with concrete legal relationship and to which, however, do not include obligations.
The parallel leads the author to the idea that in the context of the classical understanding of the term “obligation” in domestic law, it might be more appropriate to use the term “duti es erga omnes” in the translation of the Barcelona Traction judgment, rather than “obligations erga omnes”, which would be more consistent with the legal nature of this phenomenon and lead to less confusion. After all, this is not about concrete relative legal relationship, but rather about the duty of a certain subject of international law in relation to all its other subjects.