By Khush Bhachawat

Introduction

On July 22, 2022, the International Court of Justice (“ICJ”) passed its judgment on preliminary objections in the case of The Gambia v. Myanmar (“Rohingya Genocide”) and rejected all four objections raised by Myanmar. One of the objections pertained to ICJ’s jurisdiction and The Gambia’s standing to invoke state responsibility. Myanmar contended that The Gambia’s application was inadmissible because it was a non-injured party and had failed to demonstrate any special injury. With a 15:1 majority, the Court rejected this contention and held that the prevention of genocide was an obligation erga omnes partes and any State party to the Genocide Convention could institute a proceeding regardless of whether it was injured. Judge Xue wrote a dissenting opinion and observed that the negotiations surrounding the Genocide Convention showed that the signatories did not intend for non-injured parties to approach the ICJ. In this piece, the author argues that while the rationale advanced by The Gambia and its subsequent acceptance by the Court seems intuitive, it requires a deeper inquiry. A broad theory of standing is usually justified on the premise that all States have a legal interest in the enforcement of erga omnes/erga omnes partes obligations, notwithstanding whether they are directly affected by an alleged breach. The author examines if the ICJ has indeed recognized this general standing of non-injured States and, if so, what are the practical implications of this decision.

Distinction Between Jurisdiction and Admissibility

Before surveying the line of cases decided by the ICJ on this issue, it is important to understand the distinction between jurisdiction and admissibility. The former deals with the authority of the Court to hear and determine disputes in international law, whereas the latter refers to the competence and receivability of the application that is made to the Court and whether the party has standing to institute a proceeding in the Court. Therefore, even though, in a particular case, the Court may have jurisdiction to adjudicate on the application, the application may not be admissible if the applicant cannot demonstrate its standing.

Cases Decided by the ICJ

The Court in the Barcelona Traction Case observed that all states have a legal interest in the enforcement of erga omnes obligations. Proponents of a narrow approach to standing differentiate between legal interest in the adherence to an erga omnes obligation and its enforcement in case of a breach. They argue that merely because an obligation is erga omnes partes does not mean that all States party to the Convention will have standing and can initiate legal proceedings.Those who advocate for a broader approach deny any such distinction and maintain that the existence of a legal interest means nothing but the ability of a State to enforce that obligation. This difference exists because in practice, the ICJ has not had the opportunity to apply the broad dictum of Barcelona Traction and expound on the practical aspects of conferring standing on a non-injured State. Even in cases of obligations erga omnes partes, the Court, up until recently, did not express its opinion on the issue.

For instance, in the Nuclear Tests case, Australia approached the Court to prevent France from testing nuclear weapons in the South Pacific region. The majority opinion stopped short of addressing the question of Australia’s standing to bring a dispute and observed that this question was moot because France had undertaken an obligation not to conduct further tests. While the majority did not address the issue of standing, Judge De Castro, in his dissenting opinion, held that the remarks made in Barcelona Traction should be taken with a grain of salt and observed that “the Application is not admissible unless the Applicant shows the existence of a right of its own which it asserts to have been violated by the act of the Respondent.”

In the 1995 East Timor case, the Court did not address Australia’s objections regarding Portugal’s insufficient standing to bring a dispute and instead focussed on the requirement of consent to jurisdiction as a prerequisite to approaching the ICJ. It held that even in cases of obligations erga omnes, consenting to the ICJ’s jurisdiction is necessary and cannot be circumvented. The ICJ followed the same approach in the 2006 DRC v. Rwanda case.

In Bosnia v. Serbia (2007), Bosnia requested the Court to rule on, inter alia, the acts of genocide allegedly committed against non-Serbs within and outside its own territory by Serbia. The Court specifically abstained from doing so and stated that “insofar as that request might relate to non-Bosnian victims, it could raise questions about the legal interest or standing of the Applicant in respect of such matters and the significance of the jus cogens character of the relevant norms, and the erga omnes character of the relevant obligations.”

It was only in 2012 that the Court dealt with the question of standing of a non-injured State in detail in the case of Belgium v. Senegal (“Extradition Case”). Here, the Court recognized the general standing of Belgium observing that in cases involving breach of erga omnes partes obligations, no State might be able to establish a special interest. The majority in Rohingya Genocide relied on the Extradition Case and accepted The Gambia’s standing even though it did not show any special injury. In explaining the decision of the majority, Ad Hoc Judge Kress adverted to Barcelona Traction and said that in erga omnes partes obligations, the concept of ‘legal interest’ extends to instances in which the interest of the State concerned derives exclusively from the common interest in compliance with such obligations. The Judge observed that “once it has been determined that an obligation has been established in pursuit of a common interest, there is thus no need to demonstrate, the existence of a separate ‘individual legal interest’ in order to justify standing before the Court.”

The Court’s judgment in Rohingya Genocide is important because, unlike the Extradition Case where Belgium also pleaded special interest alongside a general standing, The Gambia only argued that its application was admissible on the grounds of erga omnes partes and did not raise any arguments on the existence of special interest. The author argues that by accepting this contention, the Court has now solidified the standing of a non-injured State in obligations erga omnes partes. Further, this proposition also finds support in the Articles on the Responsibility of States for Internationally Wrongful Acts. Article 48 recognizes the standing of non-injured States to invoke State responsibility in case of erga omnes and erga omnes partes obligations. This essentially furthers the dictum of Barcelona Traction by reaffirming that all States may enforce obligations owed to the international community, without showing any special injury.

Criticisms and Unanswered Questions

The primary dissent around permitting non-injured parties to invoke State responsibility is that it would open doors to floodgates of frivolous and politically motivated litigation by States who otherwise have no connection or relation with the violations committed. It has been argued that conferring such a broad standing may lead to an abuse of process and cause ‘total judicial chaos.’ However, the author argues that such apprehensions are unfounded and the reasoning behind them flawed. At the outset, the decision to bring a dispute before the ICJ even though might be political, is a pragmatic one. As seen in Rohingya Genocide, it is a coordinated decision among many States and therefore, conferral of a general standing will not necessarily lead to a multiplicity of proceedings. Further,the fact that certain obligations are owed to the international community as a whole means that all States have a legal interest in their enforcement. While approaching the Court is one way of invoking responsibility, it is an important route for vindication of an allegation and holding the breaching party liable. Saying that all States have a legal interest in the enforcement, while at the same time precluding non-injured States from approaching the ICJ renders such obligations otiose.

Further, as pointed out in East Timor and DRC v. Rwanda, the enforcement of erga omnes obligations depends on whether the State in breach has consented to the ICJ’s jurisdiction. However, if the idea is to seek the enforcement of obligations of such importance, why should it be limited by the procedural requirement of consent to jurisdiction. The Courts are yet to answer this. Some argue that a broad standing is also ineffective because a State can enter a reservation to the jurisdiction clause or to the clause entailing the substantive obligation and prevent the ICJ from hearing the matter. However, this is not entirely correct. Reservation to a substantive obligation of a treaty would be void if it is incompatible with the object and purpose of the treaty. Further, a way to deal with reservations to jurisdiction clauses is to include an express articulation in the treaty codifying an erga omnes obligation to the effect that no reservations will be allowed to the jurisdiction clause.

Finally, when a non-injured State approaches the Court and claims relief against the State in breach in the interest of the injured State, participation of the injured State in the proceeding becomes indispensable. Conferring standing on a non-injured State gives no guidance on whether the omission by the injured State to file a proceeding would lead to acquiescence or waiver of its right to file a subsequent proceeding or whether such subsequent proceeding would be precluded as being barred by res judicata.

Conclusion

To sum up, the ICJ has recognized a general standing of all States flowing from erga omnes obligations. While there is no difference between the nature of obligations erga omnes and erga omnes partes, due to a lack of case law in the former category, the ICJ has only been able to expound upon this broad approach in the latter cases. The author recognizes that erga omnes norms by their nature should be enforceable by any State as they perform a humanitarian purpose, however, conferring a blanket standing to all States without providing guidance on the questions raised above would cause uncertainty. The ICJ’s judgment in Rohingya Genocide sets a positive precedent inasmuch as it settles the law on standing in erga omnes partes obligations and makes some important observations in this regard. However, as pointed above, important questions remain to be answered. One can only hope that the ICJ addresses them in the merits stage of the case.