Community Interests Above All: The Ongoing Procedural Effects of Erga Omnes Partes Obligations Before the International Court of Justice

Introduction 

On 16 November 2023, Canada, Denmark, France, Germany, the Netherlands and the United Kingdom of Great Britain and Northern Ireland (jointly), and the Republic of Maldives filed in the Registry of the International Court of Justice (‘ICJ’ or ‘the Court’) declarations of intervention in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide between The Gambia and Myanmar. As readers may recall, The Gambia had instituted proceedings in 2019 before the ICJ for alleged violations of the UN Convention on Genocide (‘Genocide Convention’) committed by Myanmar against the Rohingya group, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State. After having ordered provisional measures in 2020 (for comments see here and here), in a 2022 judgment the Court rejected the preliminary objections raised by Myanmar and found that it had jurisdiction to entertain the application, which was therefore deemed admissible. The case (‘genocide case’) is currently pending.

The very same day, the Court released its order on the indication of provisional measures in the case brought last June by Canada and the Netherlands against the Syrian Republic (‘torture case’) for alleged violations of the UN Convention against Torture (‘Torture Convention’) (for some of the legal issues emerging from the case see here). As expected, the Court found (by majority) that the conditions for the indication of provisional measures were met and ordered the Respondent State to “take all measures within its power to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment and ensure that its officials, as well as any organizations or persons which may be subject to its control, direction or influence, do not commit any acts of torture or other acts of cruel, inhuman or degrading treatment or punishment” (para. 83, (1)) and to “take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of the [Torture Convention]” (para. 83, (2)). Notably, the Court indicated fewer measures than those requested by the Applicants, which had also asked the Court to order Syria, among other things, to cease arbitrary and incommunicado detentions and to take urgent measures to improve the conditions of all of its official and unofficial detention facilities (para. 33, b), i-iv).

The present post shall briefly reflect, on the one hand, on the increasingly active role of non-injured States in international adjudicative procedures regarding alleged violations of community interests protected by erga omnes partes obligations and, on the other, on the ever growing tendency shown by the ICJ to enforce such interests by conferring judicial standing to those States, as reflected in the two cases in comment. Such a confluence of “community-oriented” conducts is crucial and may be interpreted as constituting a robust evidence of the fact, already envisaged about 30 years ago by the former ICJ judge Bruno Simma in his prominent course at The Hague Academy of International Law, that International law “is finally overcoming the legal as well as moral deficiencies of bilateralism and maturing into a much more socially conscious legal order” (at 234).

The Notion of Erga Omnes Partes Obligations

Article 1 of the 2005 Resolution on obligations erga omnes drafted by the Institut de Droit International (‘IDI’) defines erga omnes partes obligations as those under a multilateral treaty that a State party to the treaty “owes in any given case to all the other States parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables all these States to take action” (letter b)). Unlike erga omnes obligations of general international law, erga omnes partes obligations are thus obligations of an exclusively conventional nature, which constitute a “smaller circle” with respect to the former category.

Their existence can be inferred from the famous obiter dictum of the ICJ in the Barcelona Traction case between Belgium and Spain of 1970, in which the judges held that some of the corresponding rights of protection contained in obligations erga omnes can be found in international instruments of a universal or quasi-universal character (judgment 1970, para. 34). While it can be debatable that judges had already in mind, at that time, a particular group of conventional erga omnes obligations endowed with certain procedural effects, it is fair to say that this latter and more restricted category somewhat channeled and, in the final place, facilitated, the conferral of standing to non-injured States (e.g. to Belgium in the Questions relating to the Obligation to Prosecute or Extradite case and to The Gambia in the commented case). This is especially so through the compromissory clauses included in the Torture (art. 30) and Genocide Conventions (art. IX), that have been used by applicant States to anchor the ICJ’s jurisdiction and foster their right of standing for admissibility purposes. As a matter of fact, by conferring judicial standing to non-injured States only (as of today) in relation to the breach of erga omnes partes obligations and not of erga omnes obligations tout court, the ICJ is showing a still cautious – albeit, as highlighted below, appropriate and commendable – approach to the implementation of this kind of international obligations at the procedural level.

The cases at hand bring to light two facets of obligations erga omnes partes as defined in the IDI resolution and developed in the ICJ’s jurisprudence, namely the “common values and concern of compliance” of all the States bound by the same treaty containing such obligations and the possibility for those States to “take action”. The former aspect is primarily reflected in the declaration of intervention by seven States in the genocide case, while the latter is in the prima facie standing accorded to Canada and the Netherlands in the torture case.

The Declarations of Interventions as Evidence of the Growing Collective Interests of States

As regards the “common values and concern of compliance” aspect of the erga omnes partes obligations in the genocide case, it is worth recalling that it is the second time in a few months that a considerable number of declarations of intervention are submitted to the Court, the first time being the record-setting declarations coming from 33 States (32 actually admitted to intervene) in the Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide case between Ukraine and Russia, also regarding alleged violations of the Genocide Convention (see here). In The Gambia v. Myanmar case, as in Ukraine v. Russia, the seven declarant States founded their right to intervene on Article 63 of the Statute of the Court, according to which “1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. 2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it”. As made clear in the joint declaration of intervention of Canada, Denmark, France, Germany, the Netherlands and the United Kingdom, these States decided to exercise the right of intervention in light of “their common interest in the accomplishment of the high purposes of the Convention, as well as their consequent interest in its construction” (para. 9), while the Maldives highlighted the central character of the two obligations contained in Article I of the Genocide Convention, which are owed erga omnes partes and have customary nature (para. 28).

At a first glance, it is reasonable to assume that the Court will uphold the right to intervene of those States. The intervention through Article 63 and not through Article 62 – according to which a State may request to intervene if it “has an interest of a legal nature which may be affected by the decision in the case” – may appear surprising, both because States are (rectius, were) traditionally reluctant to resort to Article 63 due to the binding effect upon them of the Court’s decision (only four declarations of intervention under Article 63 had been issued to the ICJ prior to Ukraine v. Russia), and to the extent that the “legal interest” required by Article 62 is also conceivable for the purposes of Article 63 and may be inherent to compliance with a erga omnes partes obligation that a (non-injured) State is willing to enforce (for a similar position see here). However, various reasons militate for the intervention regulated by Article 63, among which the fact that: its conditions for intervention are clearly defined whereas the ones under Article 62 are less clear (see judge Abraham’s statement on this point); the provision is based more evidently than Article 62 on the existence of a collective interest; it explicitly recognizes a right to intervene, which does not require an application for permission to intervene; and, last but not least, the interest referred to in Article 63 is, compared to that provided in Article 62, “less general, easily identifiable and, in essence, automatically acknowledged” (see Papadaki at 56), being based on the mere participation of the State in the treaty at the center of the dispute. Be that as it may, the declarations of intervention in the genocide case can be viewed as evidence of the crystallization of collective interests in the international community as those protected by erga omnes partes obligations. Notably, the six intervening States expressed in the joint declaration their “common interest” both in the implementation of the Genocide Convention (paras. 9-10) and in its construction (para. 14), while the Maldives only referred to a “direct interest” in the construction of the Genocide Convention (para. 17) but quoted the recognition made by the ICJ of the common interest of States parties to the Genocide Convention in the “accomplishment of [its] high purposes” (para. 7).

The Admissibility of the Standing of Non-Injured States as a Concrete Effect of Erga Omnes Partes Obligations

As concerns the possibility for all the States parties to a treaty to “take action” as another constitutive element of erga omnes partes obligations enshrined in the torture case, it was to be expected that the Court recognized the standing of the Applicants in light of its previous decision in the Questions relating to the Obligation to Prosecute or Extradite case between Belgium and Senegal also regarding alleged violations of the Torture Convention, in which it had found that “[t]he States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity” and “that common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention” (para. 68). The order is indeed very succinct in this regard, concluding that “any State party to the Convention against Torture may invoke the responsibility of another State party with a view to having the Court determine whether the State failed to comply with its obligations erga omnes partes, and to bring that failure to an end” (para. 50). It is worth recalling that the ICJ had used quite the same phrasing for the indication of provisional measures referring to the Genocide Convention in the genocide case (para. 41).

The position of Syria, according to which the obligations arising from the Torture Convention are individual and the Applicants can’t raise allegations about its responsibility under the Convention because they have not established that they have suffered any damage, is thus easily dismissed by the judges. In line with her previous positions on the matter as expressed in The Gambia v. Myanmar and Belgium v. Senegal cases (see here and here), judge Xue voted against the indication of provisional measures due to her opposition to the standing of non-injured States in what she names as “actio popularis cases”. Despite this (isolated) objection, the order confirms that any State party to the Torture Convention may institute proceedings against another State party and request the adoption of provisional measures, regardless of the former State’s legal position (injured, directly injured, non-injured, non-directly injured, etc.), without bringing any other evidence to this end. In so doing, the ICJ distances itself from the approach adopted by the International Law Commission in the Articles on responsibility of States (ARS), which distinguish in a rather rigid way between invocation of responsibility by an injured State (Art. 42) and by a State other than an injured one (Art. 48). In this regard, the pragmatism of the ICJ seems preferable, all the more so in cases of breach of collective human rights obligations such as those enshrined in the Genocide and Torture Conventions, for which it is extremely difficult to identify any injured State according to Art. 42 ARS. It only remains to be seen whether the standing of the Applicants will be possibly confirmed, as it is desirable as well as highly likely, at the merits stage.

Conclusion

Although they are just but two elements within the large picture of international justice, both the declarations of intervention in the genocide case, and the standing of non-injured State parties to the Torture Convention to institute proceedings before the ICJ and request the indication of provisional measures in the torture case, undoubtedly represent further significant steps for the development of adjudicative procedures aimed at the protection of common and collective interests of (part of) the international community, as well as a long-needed concretization of erga omnes (partes) obligations.

It can be deduced that, on the one hand, (certain) States seem increasingly prone to initiate “altruistic” judicial proceedings or take part in them despite not being, legally speaking, directly injured by the breaches invoked, regardless of the economic costs and political implications that an international action before the ICJ may entail. On the other hand, such “altruistic interventionism” is backed by the most recent ICJ’s jurisprudence, which has confirmed an openness to third States’ intervention and judicial standing and reverted the impression that, after the Barcelona Traction case’s obiter dictum, it had subjected the concept of erga omnes obligations back to the “procedural rigours of traditional bilateralism” (Simma, at 298). It doesn’t seem indeed unrealistic to suppose that third States will be also willing to intervene in the torture (and similar) case(s) and that the ICJ will be increasingly seised of applications by non-injured States.

As previously suggested, both legal procedures presented in this post represent a momentous confluence of action aimed at the enforcement of community interests in a particularly complex time, in which the main foundations of International law – namely solidarity and cooperation – are being severely challenged. For this reason, they should be welcomed as marking a positive trend towards the realization of a real Public international law. It is just a matter of time to see whether these collective efforts will possibly bear fruit at the merits stage.