The standing of noninjured states in cases of breach of Obligations Erga Omnes Parties: The Gambia


The International Court of Justice (“ICJ”) ruled on the preliminary objections in The Gambia v. Myanmar (“Rohingya Genocide”), and rejected all four objections from Myanmar. One objection was about the ICJ’s jurisdiction and The Gambia’s ability to invoke state liability. Myanmar claimed that The Gambia’s request was not admissible as it was not an injured party and had not shown any unique injuries. The Court rejected the contention with a 15 to 1 majority. It held that the obligation of erga parties to prevent genocide existed and that any State party in the Genocide Convention could institute a proceeding, regardless of whether it is injured. Judge Xue wrote a dissenting view and noted the negotiations around the Genocide Convention demonstrated that it was not intended for injured parties to approach the ICJ. The author claims that although the reasoning of The Gambia and its acceptance by the Court seem intuitive, it needs to be investigated more deeply. The broad theory of standing usually assumes that all States have a right to enforce erga/erga-omnes partes obligations regardless of whether they are directly affected. This article examines whether the ICJ has recognized the general standing of noninjured States. If so, what are its practical implications?

There is a difference between jurisdiction and admissibility.

Before we look at the cases decided by ICJ on this topic, you must understand the difference between jurisdiction and admissibility. The first refers to the Court’s authority to hear and decide international disputes. The latter refers only to the competence and admissibility of an application made to the Court, and whether the applicant has the standing to bring a case before the Court. The Court can hear and decide on international law disputes in some instances. The latter refers to the competence and receivability of the application that is made to the Court, as well as whether the party has standing for a proceeding before the Court.

Cases decided by the ICJ

In the Barcelona Traction Case, the Court observed that all states have an interest in the enforcement erga-omnes obligations. A narrow approach to standing distinguishes between legal interest in compliance with an erga omnesobligation, and enforcement in case it is broken. They argue the distinction between legal interest in the adherence to an em>erga/em>obligation and its enforcement in case of a breach. In practice, the ICJ was not able to apply the broad dictum Barcelona Traction and discuss the practical aspects of conferring rights on a State that is not injurious. The Court has yet to express its opinion in relation to obligations erga omnes.

In the Nuclear Tests Case, Australia sought to stop France from testing nuclear weapons in South Pacific. While the majority opinion did not address Australia’s standing to file a dispute, it noted that France had already agreed to cease further testing. The majority opinion did not address the question of standing. However, Judge De Castro in his dissident opinion stated that “an Application is not admissible except the Applicant proves the existence of a rights it claims has been violated by the respondent.”

The 1995 East Timor Court should have addressed Australia’s objections to Portugal’s insufficient standing. Instead, it focused on requiring consent to jurisdiction before a person can approach the ICJ. The Court ruled that consent is required in all cases of obligations erga omnes and cannot be circumvented. In the 2006 DRC v. Rwanda, the ICJ used the same approach.

In Bosnia and Serbia (2007), Bosnia asked the Court to rule interalia on the genocide committed by Serbia against non-Serbs in and around its territory. The Court refused to do so, and said that “insofar that that request might relate non-Bosnian victim, it could raise questions about legal interest or standing the Applicant in respect such matters and the significance the jus cogens nature of the relevant norms and the erga, omnes nature of the relevant obligations.”

The Court first addressed the issue of standing of a state that is not injurious in the case of Belgium against Senegal in 2012. (Extradition Case). The Court acknowledged Belgium’s general situation and observed that no State could establish a particular right in cases involving Erga omnes partis obligations breaches. The Rohingya Genocide majority relied on the External Case, and accepted The Gambia’s standing even though it didn’t show any special injuries. Ad Hoc judge Kress explained the decision of the majority and referred to Barcelona Traction. He stated that the ‘legal interests’ concept in erga omnes partesobligations covers instances where the State’s interest derives solely from its common interest in complying with these obligations. The Judge noted that “once an obligation has been established in pursuit of a common interest, it is no longer necessary to prove, that a separate ‘individual’ legal interest exists in order to justify standing in front of the Court.”

The Court’s decision in Rohingya Genocide was important because, unlike the Additionaldition Case where Belgium also pleaded special interests alongside a general standing of the country, The Gambia only claimed that its application was admissible on Erga Omnes Parts. It did not raise any arguments about the existence of special interes. This argument is supported by the author who argues that the Court has established the noninjured state’s status in obligations erga omnes partis. This proposition is also supported in the Articles regarding the Responsibility of States for Internationally Wrongful Acts. Article 48 allows noninjured states to invoke state responsibility for erga and erga obligations. This reinforces the dictum Barcelona Traction, reaffirming that all States can enforce obligations owed the international community without showing any injury.

Critiques and Unanswered Queries

There is a primary objection to allowing noninjured parties the right to invoke State responsibility. This would allow for frivolous and politically motivated lawsuit by states that otherwise have no connection or relationship to the violations. It has been suggested that granting such a broad status could lead to a misuse of process and cause ‘total Judicial Chaos.’ But the author contends that such fears are unfounded and their reasoning is flawed. Even though it might seem political, the decision to file a dispute with the ICJ is pragmatic. As shown in the Rohingya Genocide it is a coordinated decision between many States. Therefore, conferring a general standing won’t necessarily result in an assortment or additional proceedings. The fact that some obligations are owed to all States means that they have a legal right to enforce them. Although approaching the Court may be one way to invoke responsibility, it is a crucial route to vindicate an allegation or hold the violating party responsible. While recognizing that all States have a legal right to enforce, it also precludes non-inured states from approaching the ICJ makes such obligations implausible.

As noted in East Timor, and DRC v. Rwanda, enforcement of erga omnes requirements depends on whether the State in violation has consented the ICJ to its jurisdiction. If the goal is to enforce obligations of this importance, then why should the procedural requirement that consent to jurisdiction be applied? This is a question that the Courts have yet to address. Some claim that a broad standing can also be ineffective as a State may enter a reservation of jurisdiction or the clause entailing substantive obligation to prevent the ICJ hearing the case. This needs to be corrected. If a reservation to a substantive obligation under a treaty is not compatible with its object or purpose, it would be null. A way to address reservations to jurisdiction clauses would be to include an explicit articulation within the treaty that codifies an Erga Omnes obligation. This will ensure that no reservations are allowed to the jurisdiction section.

Participation by the injured state in the proceeding is essential when a State that is not injured approaches the Court to seek relief from the injured State for breaching its interest. The Court’s decision to confer standing on a injured State does not provide any guidance as to whether the State that is omitted to file a proceeding will result in the State being unable to do so or whether it would be able to do so again.

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