Modern Adjudication of International Human Rights: Erga Omnes Partes Obligations in The Gambia v. Myanmar Preliminary Objections Judgment

By Carolina Savonitto

Abstract

On 22 July 2022, the International Court of Justice rejected all four preliminary objections raised by Myanmar in January 2021 in the case filed by The Gambia under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Court’s rejection of the second preliminary objection on the standing of The Gambia in bringing a claim before the Court for acts of genocide allegedly committed by Myanmar against the Rohingya group constitutes a crucial step for the protection of human rights at the international level. Although the Court had previously ruled on the standing of applicants bringing claims alleging violations of erga omnes partes obligations in multiple cases, this is the first time that a non-injured State has brought a claim before the ICJ under the Genocide Convention for a violation of an erga omnes partes obligation. The Court’s ruling recognized the collective interest shared by all Contracting Parties of the Convention to uphold its high purposes and the entitlement of any of the Contracting Parties to bring a claim against violations of erga omnes partes obligations.

On the other hand, the Court, which has become an important channel for the development of human rights, missed the opportunity to clarify the applicability of the principle of erga omnes partes obligations to human rights treaties.

In November 2019, the Republic of The Gambia (hereinafter ‘The Gambia’) filed an Application before the International Court of Justice (hereinafter ‘ICJ’ or ‘Court’) against the Republic of the Union of Myanmar (hereinafter ‘Myanmar’) for alleged violations of the Conventionon thePrevention andPunishment ofthe Crimeof Genocide(hereinafter ‘Genocide Convention’).1 After the Court ordered in January 2020 several provisional measures in January 2021,2 Myanmar raised four preliminary objections regarding the jurisdiction of the Court and the admissibility of the Application.3 On 22 July 2022, following public hearings on the preliminary objections held in February 2022, the Court delivered its decision on the objections raised by Myanmar.4

This article deals with the Court’s decision on the second preliminary objection raised by Myanmar, concerning The Gambia’s standing, in the preliminary objections judgment of 22 July 2022 called Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Preliminary Objections. Part II introduces the case of The Gambia v. Myanmar, referencing the factual situation and the procedural background of the case. Part III summarizes the Court’s decision on the second preliminary objection raised by Myanmar, explaining its rationale and the legal principles applied. Part IV illustrates the principle of erga omnes partes obligations under international law, from its first recognition by the ICJ until the present case. Part V examines the relevance of the ICJ for the development and protection of human rights. Part VI discusses the relevance of the ICJ’s decision on The Gambia’s standing to bring a claim alleging a violation of an erga omnes partes obligation in view of the development and protection of human rights. Finally, Part VII concludes and summarizes this article.

1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Application Instituting Proceedings and Request for Provisional Measures) General List No. 178 [2019] (The Gambia v Myanmar (Application Instituting Proceedings and Request for Provisional Measures))

2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Request for the Indication of Provisional Measures: Order) General List No. 178 [2020] (The Gambia v Myanmar (Provisional Measures Order)).

3 Case Concerning Application of the Convention of the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections of the Republic of the Union of Myanmar) General List No. 178 [2021] (The Gambia v Myanmar (Preliminary Objections of the Republic of the Union of Myanmar)).

4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections:Judgment)GeneralListNo.178 [2022](The Gambiav Myanmar (Preliminary Objections Judgment)).

After decades of discrimination and repression against the Rohingya minority, on 25 August 2017, the Myanmar forces began ‘clearance operations’ against the Rohingya.5 Such operations were carried out by burning Rohingya villages, as well as attacking and killing Rohingya people, including raping and abusing women and girls.6 Between 25 August 2017 and December 2017, more than 354 Rohingya villages were burned to the ground7 and at least 6,700 Rohingya were killed in violence, of which over 700 were children.8

On 11 November 2019, a month after having delivered a Note Verbale to the Permanent Mission of Myanmar to the UN, The Gambia filed an Application to the Registry of the ICJ instituting proceedings against Myanmar.9 The Gambia’s Application alleges violations by Myanmar of the Genocide Convention, in particular, Myanmar’s obligations under Articles I, III(a), III(b), III(c), III(d), IV, V and VI.10

On 23 January 2020, after having heard submissions by both Parties, the Court issued a Provisional Measures Order ordering Myanmar to take “all measures within its power” to prevent the commission of all acts within the scope of Article II of the Genocide Convention.11

On 20 January 2021, Myanmar raised four preliminary objections regarding the jurisdiction of the Court and the admissibility of The Gambia’s Application. The preliminary objections were the following:

“(1) The Court lacks jurisdiction, or alternatively the application is inadmissible, as the real applicant in these proceedings is the Organisation of Islamic Cooperation;

(2) The application is inadmissible, as The Gambia lacks standing to bring this case before the Court under Article IX of the Genocide Convention;

(3) The application is inadmissible, as The Gambia cannot validly seize the Court due to Myanmar’s reservation to Article VIII of the Genocide Convention;

5 United Nations Human Rights Council, ‘Report on the independent international Fact-Finding mission on Myanmar’ (12 September 2018) (Fact-Finding Mission Report) UN Doc A/HRC/39/64, paras 31-35.

6 ibid, paras 36-38.

7 Human Rights Watch, ‘Burma: 40 Villages Burned Since October’ (Human Rights Watch, 17 December 2017) <www.hrw.org/news/2017/12/18/burma-40-rohingya-villages-burned-october> accessed 11 November 2022.

8 Médecins Sans Frontières, ‘MSF surveys estimate that at least 6,700 Rohingya were killed during the attacks in Myanmar’ (Médecins Sans Frontières, 12 December 2017) <www.msf.org/myanmarbangladesh-msf-surveysestimate-least-6700-rohingya-were-killed-during-attacks-myanmar> accessed 11 November 2022.

9 The Gambia v Myanmar (Application Instituting Proceedings and Request for Provisional Measures) (n 1).

10 ibid.

11 The Gambia v Myanmar (Provisional Measures Order) (n 2).

(4) The Court lacks jurisdiction, or alternatively the application is inadmissible, as there was no dispute between The Gambia and Myanmar on the date of filing of the Application instituting proceedings”.12

On 21, 23, and 25 January 2022, public hearings on the preliminary objections raised by Myanmar were held.

On 22 July 2022, the Court delivered its reasoned decision on the preliminary objections. The preliminary objections were assessed in the following order: (1) the first preliminary objection; (2) the fourth preliminary objection; (3) the third preliminary objection; and lastly, (4) the second preliminary objection.13

III. Myanmar’s 2nd preliminary objection – The Gambia’s standing to bring the case

In the second preliminary objection, Myanmar argued that The Gambia’s Application is inadmissible because The Gambia lacks standing to bring the claim before the Court as it is not an injured State and has not demonstrated an individual legal interest.14 The Court rejected Myanmar’s second preliminary objection by reason that The Gambia, as a Contracting Party to the Convention, is entitled to invoke Myanmar’s responsibility before the ICJ for alleged breaches of the Genocide Convention.15

Myanmar’s argument that The Gambia lacks standing to bring the case was three-fold: (1) that only States ‘specially affected’ by internationally wrongful acts have standing before the Court,16 (2) that That The Gambia’s claim does not comply with the rule concerning the nationality of claims,17 and (3) that Bangladesh’s reservation to Article IX of the Convention bars non-injured States for bringing claims against Myanmar for alleged acts of genocide against the Rohingya group.18

In the first place, Myanmar argued that there exists a difference between the entitlement to invoke State responsibility under general international law and standing before the ICJ.19 In Myanmar’s view, the right of a non-injured State to invoke State responsibility in protection of the common interest in the accomplishment of the purposes of the Genocide Convention does not grant it standing before the Court, as this is reserved for States ‘specially affected’ by an internationally wrongful act.20 Additionally, Myanmar argued that the omission of the terms “any” or “all” before the term “[d]isputes”’ in Article IX of the Genocide Convention indicates that disputes are limited to those between Contracting Parties, rather than all disputes arising under the Convention.21 Myanmar also noted that the Convention’s travaux préparatoires also suggest this interpretation as the drafters chose to adopt the wording “at the request of any of the parties to the dispute” rather than the proposed ‘at the request of any of the High Contracting Parties’.22

12 The Gambia v Myanmar) (Preliminary Objections of the Republic of the Union of Myanmar) (n 3).

13 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4).

14 ibid, para 114.

15 ibid, para 108.

16 ibid, para 94.

17 ibid, para 109.

18 ibid, para 99.

19 ibid, para 94.

The ICJ rejected Myanmar’s first argument.23 In its reasoning, the Court made references to the Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide24 where it explained that the Contracting States to the Genocide Convention do not have “any interests of their own” but have the single common interest of “accomplishing thosehighpurposes”of theConvention.25 TheCourt affirmedthatthiscommon interest creates mutual obligations for the State Parties, obligations erga omnes partes, which entail that any of the State Parties to the Convention is entitled to invoke the responsibility of another Party for alleged breaches.26 In the Court’s words: “if a special interest were required for that purpose, in many situations no State would be in a position to make a claim”.27 Therefore, the Court rejected Myanmar’s argument that there needs to be an additional ‘special interest’ or an injury to the Party bringing the claim.28 The Court furthermore held that Myanmar’s purported distinction between the entitlement to invoke responsibility has no basis in law.29

Further, the Court found that the wording of Article IX of the Convention does not limit the category of Contracting Parties who are entitled to bring a dispute before the ICJ.30 The Court notes that the distinction between “[d]isputes between the Contracting Parties” under Article

20 ibid.

21 ibid, para 95.

22 ibid, para 96.

23 ibid, para 106.

24 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15.

25 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) paras 106-107.

26 ibid.

27 ibid, para 108.

28 ibid.

29 ibid.

30 ibid, para 110.

IX and “any Contracting Party” under Article VIII can be explained by the fact that under Article VIII a Contracting Party may seek recourse before the UN even if it does not have a dispute with another Contracting Party.31 The Court also explains that the use of “[d]isputes”, rather than “all” or “any” disputes under Article IX of the Convention is common in compromissory clauses in multilateral treaties and was included in the very first draft of the Convention.32

Secondly, Myanmar argued That The Gambia’s claim does not comply with the rule concerning the nationality of claims enshrined under Article 44(a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter ‘ILC Articles’).33 Because the Rohingya group are not nationals of The Gambia, it does not have standing to invoke Myanmar’s responsibility in their interest.34

Here, the Court rejected Myanmar’s argument and found that it is not required for a State bringing a claim to demonstrate that any victims of a violation of the obligation erga omnes partes under the Convention are its own nationals.35 The Court reached this conclusion by noting that diplomatic protection for an internationally wrongful act has been extended to also include violations of internationally guaranteed human rights and that often victims of genocide are nationals of the State allegedly committing the breach of the erga omnes partes obligation.36

Lastly, Myanmar argued that, even if non-specially affected States had standing before the Court, their standing would be “subsidiary to and depend upon the standing of States that are ‘specially affected’”.37 In the present case, Myanmar’s view was that Bangladesh would have been “the most natural State” to institute proceedings due to its proximity to Myanmar and the fact that it has received a significant number of alleged genocide victims.38 However, as Bangladesh made a reservation to Article XI of the Genocide Convention, this, along with precluding Bangladesh to lodge a claim, bars any non-injured States from doing so.39

In this respect, the Court rejected Myanmar’s argument and held that Bangladesh’s proximity and interest in the Rohingya situation did not hinder the right of another Contracting

Party, such as The Gambia to assert its interest by bringing a claim before the ICJ for an alleged violation of an erga omnes partes obligation.40

IV. The principle of erga omnes partes obligations

Theprincipleof erga omnes obligationswasfirstrecognisedbytheICJ inthe1970 Judgment in the Case concerning Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain) (hereinafter ‘Barcelona Traction’) 41 In that case, the Court distinguished two categories of legal obligations under public international law: on the one hand “obligations of a State towards the international community as a whole”, and on the other hand bilateral obligations arising ‘vis-à-vis another State’.42 This first category represents obligations erga omnes and includes, according to the Court, the prohibition of acts of aggression and genocide, as well as “the principles and rules concerning the basic human rights of the human person, including protection from slavery and racial discrimination”.43

Regarding a State’s right to invoke the responsibility of another State for breaches of an erga omnes partes obligation, in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the ICJ clarified that:

“[a]ll other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present’ and that ‘that common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention”.44

The Court further noted that the obligations in question could be defined as obligations erga omnes partes and that the common interest “implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party”, without the requirement of a special interest as an injured State.45

The notion of a common interest was introduced by the ICJ years before the recognition of the principle of erga omnes obligations in its 1951 Advisory Opinion on Reservations on the

40 ibid, para 113.

41 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.

42 ibid.

43 ibid, para 34.

44 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.

45 ibid, para 69.

Convention on the Prevention and Punishment of the Crime of Genocide.46 In that instance the Court, referring to the Genocide Convention, observed that:

“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention”.47

In the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) case, where neither Australia nor New Zealand could claim to be especially affected by Japan’s whaling activities, the ICJ recognised Australia and New Zealand’s right to bring a claim against Japan for violations of erga omnes partes obligations under the Whaling Convention, to which they were party.48

The ICJ has repeatedly and consistently rejected any requirement of a specific interest of a State bringing a claim for breach of erga omnes and/or erga omnes partes obligations.49

The 2001 ILC Articles, which are heavily influenced by the ICJ’s case law, trace out the principle of erga omnes under Article 48(1).50 Article 48(1) provides for the possibility for noninjured States to invoke the responsibility of another State where (a) “the obligation breached is owed to a group of States including that State and is established for the protection of a collective interest of the group”51 or where (b) “the obligation breached is owed to the international community as a whole”.52 Paragraph (a) refers to erga omnes partes obligations,53 such as obligations arising from multilateral treaties that protect ‘common interests’ (for examplehumanrights treaties).54 Paragraph(b)referstoobligations erga omnes55 which,unlike

46 Reservations to the Convention on the Prevention and Punishment of the crime of Genocide (Advisory Opinion) [1951] ICJ Rep 23.

47 ibid.

48 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226.

49 See: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (judgment) [2012] ICJ Rep 442, para 68; The Gambia v Myanmar (Provisional Measures Order) (n 2) para 32; Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226.

50 ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (November 2001) UN Doc A/56/49(Vol. I)/Corr. 4 (ILC Articles on State Responsibility), art 48(1).

51 ibid, art 48(1)(b).

52 ibid, art 48(1)(b).

53 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) obligations erga omnes partes, are owed to the international community as a whole and not just to a group of States.56

UN Doc A/56/10 (ILC Articles on State Responsibility Commentary) art 48 para 4.

54 James Crawford and Simon Olleson, ‘The Character and Forms of International Responsibility’ in Malcolm D Evans (ed), International Law (5th edn, OUP 2018) 445.

55 ILC Articles on State Responsibility Commentary (n 53) art 48 para 9.

V. The ICJ and human rights

“The protection of human personality and of its fundamental rights is the ultimate purpose of all law, national and international”.57

(Sir Hersch Lauterpacht at the Royal Institute of International Affairs, Chatham House, London on 27 May 1941)

Although the ICJ is not a human rights court, it is fully engaged in the judicial protection of human rights.58 According to Article 38 of the ICJ Statute, in deciding on disputes submitted to it the ICJ shall apply, among others, (a) international conventions.59 International conventions include human rights treaties and there is nothing, save for jurisdictional and admissibility obstacles, precluding the Court to judge cases brought under human rights treaties as it has no limitation regarding its subject matter jurisdiction.60 The Court has been tackling human rights issues since its institution, however in the last thirty years it has also decided on cases entirely focusing on alleged human rights violations.61

Since its establishment, the ICJ has played a major role in the advancement of human rights, starting with the development of the legal concept of the right to self-determination in the South West Africa advisory opinions in the 1950s,62 and its holding that apartheid was illegal and a denial of fundamental human rights in the Namibia Advisory Opinion of 1971.63 Relevant to mention is also the Barcelona Traction case, where the ICJ described the principle of obligations erga omnes and emphasised the collective interest of the international community as a whole in ensuring respect for certain fundamental human rights.64

56 ILC Articles on State Responsibility (n 51) art 48(1)(a).

57 Hersch Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht, vol II (CUP 1975) 47.

58 Rosalyn Higgins, Themes and Theories. Selected Essays: Selected Essays, Speeches, and Writings in International Law (OUP 2009) 654.

59 Statute of the International Court of Justice annexed to the Charter of the United Nations (ICJ Statute) (adopted 24 October 1945, entered into force 24 September 1973) 1 UNTS XVI (ICJ Statute) art 38.

60 ibid, art 36.

61 Bruno Simma, ‘Human Rights Before the International Court of Justice: Community Interest Coming to Life?’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 308.

62 International Status of South West Africa (Advisory Opinion)[1951]ICJ Rep 23; Voting Procedure onQuestions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1995] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa (AdvisoryOpinion)[1956] ICJ Rep 23.

63 Legal Consequences of States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16 (Namibia Advisory Opinion).

The Court has always tended to adopt a ‘value-oriented approach’ supporting certain fundamental human rights in its decisions,65 but in recent years, some cases brought before the Court were actually human rights cases in essence.66 An example of this is the Bosnia and Herzegovina v. Serbia and Montenegro case, where Bosnia and Herzegovina brought claims against Serbia for alleged violations of the Genocide Convention, the Universal Declaration of Human Rights, and other international instruments.67 Another similar example is the case of Croatia v. Serbia where Croatia brought claims against Serbia for alleged violations of the Genocide Convention.68 Further, in 2005 in the Congo v. Uganda, the Court for the first time included findings of human rights violations, together with findings of violations of international humanitarian law in a judgment.69 Unique was the case of Diallo, brought by Guinea against the Democratic Republic of the Congo (hereinafter ‘DRC’), where the ICJ assessed violations by the DRC of Mr. Diallo’s individual human rights under the ICCPR and theAfricanCharter.70 Inthe Diallo case,unlikebefore, theCourtdirectlydiscussedMr.Diallo’s individual human rights, without referring to them as the rights of Guinea as per the inter-state complaint.71 In recent years the Court in Belgium v. Senegal was confronted with yet another human rights case, with Belgium bringing a claim under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter ‘Convention Against Torture’), alleging that Senegal had violated its obligation of aut dedere aut judicare (to prosecute or extradite).72

Further important to note are the references by the ICJ to the promotion and protection of human rights as part of the purposes and aims of the United Nations. In the Namibia Advisory Opinion, the ICJ affirmed that the denial of fundamental human rights of individuals is a flagrant violation of the purposes and principles of the UN Charter.73 Another noteworthy mention is the Tehran Hostages (US v Iran) case, where the Court maintained that conduct violating the fundamental human rights of individuals perpetrated by States is contrary to the principles enshrined under the UN Charter.74

64 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.

65 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (OUP 1997) 72.

66 Higgins (n 58) 643.

67 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro (Merits) [2007] ICJ Rep 43.

68 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412.

69 Armed Activities on the Territory of the Congo (DRC v Uganda) (Judgment) [2005] ICJ Rep 168; Simma (n 61) 309.

70 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections: Judgment) [2007] ICJ Rep 582.

71 Simma (n 61) 311.

72 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.

Gentian Zyberi, member of the UN Human Rights Committee and the Permanent Court of Arbitration, says that the ICJ can play its part in furthering the human rights cause through a twofold contribution: by enforcing and clarifying the law of human rights through interpreting and developing rules and principles of this part of international law, and by “keeping the fabric of international law together” and so ensuring a better interaction between the different branches of international law.75

Bruno Simma, judge at the ICJ from 2003 until 2012, makes, in his private capacity, a remark similar to Zyberi:

“[T]he most valuable contribution the ICJ can make to the international protection of human rights – a role for which it is particularly well equipped and practically has no competition – consists in what would be the juridical ‘mainstreaming’ of human rights, in the sense of integrating this branch of the law into both the fabric of international law and its various other branches”.76

Simma goes on to explain that this “juridical mainstreaming” entails, for example, the clarification by the Court of the nature of obligations flowing from human rights treaties and, more generally, the acceptance and development of “international legal vehicles” such as jus cogens or erga omnes obligations that are used “to give human rights obligations even greater legal authority”.77

Although the ICJ is not a human rights court in the strict sense of the term, where individuals can bring claims for violations suffered,78 it has been supportive of human rights claims79 and

73 Namibia Advisory Opinion (n 61) para 13.

74 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] has progressively developed and interpreted norms of international human rights law, and thus contributed to the prominent place that human rights have in the international legal order.80

ICJ Rep 180, para 91.

75 ibid, 298.

76 Simma (n 61) 323.

77 ibid.

78 ICJ Statute (n 59) art 34(1).

79 Simma (n 61) 322.

VI. The relevance of the ICJ’s decision on erga omnes partes obligations in The Gambia v. Myanmar in view of the development and protection of human rights

The ICJ’s decision on Preliminary Objections is of particular significance as it reaffirms the standing of non-injured parties seeking to enforce an erga omnes partes obligation before the ICJ.81 In the Provisional Measures decision of January 2020, the Court had already addressed the issue of The Gambia’s legal standing to bring a complaint against Myanmar under the Genocide Convention.82 On that occasion, the Court dealt with Myanmar’s argument that only a State especially affected by the alleged violations could bring the case.83 Similar to the decision on Preliminary Objections, the Court also rejected Myanmar’s argument, finding that any State Party to the Convention was entitled to bring a claim to the ICJ due to the erga omnes partes character of the obligations in question.84

However, this was not the first time that the Court dealt with the issue of standing in bringing claims for alleged violations of erga omnes partes obligations, and the Decision of July 2022 remains consistent with prior decisions.85 Nevertheless, the Gambia’s claim was groundbreaking as it stemmed entirely from an erga omnes partes obligation.

In his declaration on the Preliminary Objections decision, Judge Ad Hoc Kress, the judge appointed by Myanmar, states the following:

“[T]o distinguish between ‘common interest’ and ‘individual interest’ in the way the Court was asked to do by Myanmar would be to fail to take due account of the fact that the international community is not fully institutionalised and that, as a result, individual

80 Gentian Zyberi, ‘Human Rights in the International Court of Justice’ in Mashood Baderin and Manisuli Ssenyonjo(eds), International Human Rights Law: Six Decades after the UDHR and Beyond (Ashgate, 2010) 297.

81 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) para 108.

82 The Gambia v Myanmar (Provisional Measures Order) (n 2) para 32.

83 ibid.

84 ibid, para 48.

85 See for instance: Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970]ICJ Rep 3, paras 33-34; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 442, para 68.

States have an important function in allowing the ‘common interest’ to be provided with judicial protection”.86

Judge Ad Hoc Kress quotes Brigitte Stern saying that where there is a collective interest, each of its ‘constitutive elements’ – the States – is accountable for the respect by all other elements of the common interest.87 Stern’s quote reads: “Après tout, on parle d’obligations erga omnes et non d’obligations erga totum!” [After all, we speak about erga omnes obligations and not erga totum obligations].88 Judge Ad Hoc Kress then continues by saying that if an obligation has been established in pursuit of a common interest and is thus determined to be erga omnes or erga omnes partes there is no need to identify an ‘individual legal interest’.89

The Gambia’s pursuit of a common interest in bringing a claim for the common interest seems to have already inspired other States to do the same in situations where an erga omnes partes obligation exists. In September 2020, only a few months after the Provisional Measures decision, the Netherlands expressed its plans to bring a claim before the ICJ against Syria for alleged violations of its obligations under the Convention Against Torture, which are also erga omnes partes, unless an agreement can be reached through negotiation or arbitration.90

Granted that the ICJ’s decision in reaffirming the principle of erga omnes partes obligations wasacrucialstepfor the lawofhumanrights,an issuethatremains,andwhichwasalsotouched upon by Judge Ad Hoc Kress in his Declaration,91 is the broadness of the definition of what qualifies as an erga omnes partes obligation. The Barcelona Traction Case defined obligations erga omnes as an obligation to which “all States can be held to have a legal interest in” protecting “in view of the importance of the rights involved”.92 However, the observation in the same decision that “on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality”,93 seems to contradict the first statement and to so exclude the erga omnes partes character of human rights obligations. In Judge Ad Hoc Kress’ view, this second observation by the Court in the Barcelona Traction case should not be interpreted as denying the possibility of obligations contained in human rights treaties of having erga omnes partes character, but rather should be understood “as an imperfectly worded reference to the limitations that exist under human rights treaties with the view of the possibility of instituting judicial proceedings for an alleged violation”.94

86 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress) General List No. 178 [2022] para 14.

87 ibid; Brigitte Stern, “Et si on utilisait le concept de préjudice juridique ? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États” [2001] AFDI 47, p 24.

88 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86).

89 ibid, 15.

90 Government of the Netherlands, ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands, 18 September 2020), <www.government.nl/latest/news/2020/09/18/thenetherlands-holds-syria-responsible-for-gross-human-rights-violations> accessed 13 November 2022.

91 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86) para 25.

92 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.

93 ibid, para 91.

The evolution of the principle of erga omnes partes obligations, as evidenced by the case of Belgium v. Senegal, as well as The Gambia v. Myanmar, has allowed for the opportunity of accountability and protection of human rights. Nonetheless, the unclarity that still remains after half a century from the first recognition of the principle of erga omnes partes obligations by the ICJ risks constituting a barrier to the protection of human rights. The Court should, in the interest of legal certainty, provide clarity on the concept of erga omnes partes obligations, and especially under what conditions the obligations contained in human rights treaties can be considered to have erga omnes partes character. This is especially relevant due to the increase in human rights cases before the ICJ in recent years, and in view of the Court’s reaffirmation of the position of non-injured States in bringing claims for alleged violations of obligations erga omnes partes in The Gambia v. Myanmar Preliminary Objections Decision.

VII. Conclusion

The ICJ is notoriously not a human rights court, however, it has, since its establishment in 1945, made important contributions to the development of human rights principles and their ‘judicial mainstreaming’.95 One of these contributions was the establishment of the principle of obligations erga omnes partes in the Barcelona Traction case,96 and recently its reaffirmation in The Gambia v. Myanmar Preliminary Objections Decision.97

The Court’s decision in The Gambia v. Myanmar Preliminary Objections Decision

represents a crucial step for the protection of human rights at the international level, as it constitutes the first time that a non-injured State has brought a claim before the Court entirely based on its interest in the compliance with an erga omnes partes obligation.

94 Preliminary Objections: Judgment – Declaration of Judge Ad Hoc Kress (n 86) para 25.

95 Simma (n 61) 323.

96 The Gambia v Myanmar (Preliminary Objections Judgment) (n 4) paras 108-109.

97 Case Concerning the Barcelona Traction, Light and Power Co, Limited (Belgium v Spain) [1970] ICJ Rep 3, paras 33-34.

However, an issue that remains is the broadness and unclarity in the erga omnes partes character of human rights obligations contained in international treaties. In view of the increase of human rights claims before the ICJ, it would be desirable for the Court to pronounce itself on this matter in future decisions in the interest of ensuring better protection of human rights.