On 23 January 2020, the International Court of Justice (ICJ) delivered a unanimous judgment requiring Myanmar to take steps to prevent the genocide of the Rohingya people.

The dispute between The Gambia – the state responsible for filing the case - and Myanmar concerned a ‘clearance operation’ directed at the Rohingya people, an ethnic minority group, in Rakhine State. The United Nations Independent International Fact-Finding Mission on Myanmar found that the Rohingya people have been subject to severe human rights abuses on a mass scale by Myanmar’s military. These abuses include indiscriminate killings, the systematic use of rape and other forms of sexual violence, arbitrary detention, torture, forced displacement, and the destruction of villages.

This judgment took the form of a provisional order, which means that the ultimate determination as to whether Myanmar has breached its international obligations under the Genocide Convention is still awaited. The purpose of a provisional order is to prevent the escalation of a dispute while the ICJ attempts to reach a resolution through international adjudication. 

This article looks at the ICJ’s reliance on erga omnes obligations – meaning, responsibilities owed ‘towards everyone’ - to establish The Gambia’s standing in the case. Obligations erga omnes are international obligations owed by states to the international community as a whole. They are imposed by jus cogens, or peremptory norms of international law, such as the prohibition on genocide. Erga omnes obligations differ to reciprocal obligations that typically characterize international law, “arising vis-à-vis another state in the field of diplomatic protection".

JURISDICTION OF THE ICJ AND STATE CONSENT

The ICJ is the principal judicial organ of the United Nations (UN). It was established to resolve international disputes that arise between states. Before the Court may proceed with a case, it has to show that it has prima facie jurisdiction – namely, that it possesses the practical authority to administer justice on the particular dispute. 

As the UN is not a world government, it cannot force countries to submit to the ICJ. Instead, the state must have consented to the Court’s jurisdiction. In this case, the consent was found in Article IX of the Genocide Convention, which Myanmar has signed and ratified. Relatedly, per Article IX, the Court’s jurisdiction is conditional on the existence of a dispute between two states, emerging from the responsibility of one state for genocide. However, "the existence of a dispute between The Gambia and Myanmar is not obvious" because "it is not of an essentially bilateral nature".

ERGA OMNES OBLIGATIONS AND ERGA OMNES PARTES OBLIGATIONS

The Gambia relied on erga omnes obligations to present "two bases" for its standing to initiate a case: 

i) erga omnes obligations owed to the international community as a whole; and 

ii) erga omnes partes obligations owed by any state party to the Genocide Convention to all other states party to the treaty. 

The Gambia submitted that its erga omnes partes rights under the Genocide Convention "mirror the erga omnes obligations of the Genocide Convention". Therefore, The Gambia argued that it possessed rights under the Genocide Convention that required protection by a provisional measures order. Essentially, "the fact of being party to a treaty imposing obligations erga omnes partes suffices to establish its legal interest and legal standing before the Court". 

However, Myanmar ‘dispute[d] that The Gambia [had] the capacity to bring a case before the Court in relation to Myanmar’s alleged breaches of the Genocide Convention without being specially affected by such alleged violations" by, for example, "hav[ing] a specific connection to the alleged victims". Relying on an earlier case of Belgium v. Senegal (2012), The Gambia submitted that "if a special interest was required, in many cases no state would be in a position to make a claim against the perpetrator of the wrongful act".

Ultimately, the Court found that all states parties to the Genocide Convention have a common interest in preventing acts of genocide and ensuring that, where they do occur, impunity is not enjoyed by the offenders. Consequently, where erga omnes obligations are breached, injury is felt by all states and all states therefore have an interest in the compliance of other states. 

OBLIGATIONS ERGA OMNES AND THE STRUCTURE OF INTERNATIONAL LAW

The Court’s acceptance of The Gambia’s standing being underpinned by erga omnes obligations is significant for the structure of international law. When international law was first formally conceived, in the 1648 Treaty of Westphalia, state sovereignty was considered to be the ultimate norm underpinning international legal relations. Nineteenth century positivism further emphasised a state-centric system. For an illustration of this, see the previous hesitation of the ICJ to acknowledge obligations erga omnes in the South West Africa cases in 1966:

“The argument amounts to a plea that the Court should allow the equivalent of an “actio popularis”, or a right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present…”

Whilst the international legal order still orbits around states, the upholding of erga omnes obligations hints at international law evolving into a type of global governance mechanism. Rather than merely regulating activities between states, international law is increasingly governing the international community collectively. Such global governance is apparent by the willingness of the Court to administer justice upon a dispute that transcends bilateral relationships. As Pillai considers: 

“The notion that another state - however small and far from the atrocities as The Gambia is - has the ability to pursue legal action on the basis of not just being a state party to the Genocide Convention but also as part of the community of states, is very significant.”

However, these developments have not occurred without conservative backlash. Judge Xue, in her Separate Opinion as Vice-President of the Court in The Gambia v. Myanmar and in her dissenting opinion in Belgium v.Senegal critiqued "a sweeping conclusion" that does not rest in conformity with "the basis of public international law and practice as it stands today". She noted that: 

“It is one thing for each state party to have an interest in compliance with the obligations erga omnes partes thereunder, and it is quite another to allow any state party to institute proceedings in the Court against another state party without any qualification on jurisdiction and admissibility”.

This echoed her comments from Belgium v. Senegal, where she stated that "there is no general standing resident with each and every state to bring a case in the Court for the vindication of a communal interest".  As such, ad hoc Judge Ser - in his dissenting opinion in Belgium v Senegal - described the approach of the Court as producing "a rabbit from a magician’s hat". For better or worse, the following extract from the Separate Opinion of Vice-President Judge Xue summarises the implications of the Court’s approach:

“To what extent a state party may act on behalf of those states parties for the common interest by instituting proceedings in the Court bears on international relations, as well as on the structure of international law.” 

Despite her reservations, Judge Xue agreed with the majority in The Gambia v Myanmar, finding that the human rights situation in Myanmar deserved serious attention from the Court.

Josephine is an LLB student at the University of Birmingham, pursuing a specialisation in international law, having recently completed an exchange year with McGill’s Faculty of Law, in Montreal, Canada. Her research interests span public international law, international dispute resolution, transnational law, public law and corporate accountability. She is also committed to access to justice and has volunteered with a number of pro bono organisations.

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