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STANDING BEFORE THE ICJ: ARE THE FLOODGATES OPEN FOR
ERGA OMNES PARTES CLAIMS?
Abdumutalimova Kumushkhon
,
3rd year student of Tashkent State University of Law,
faculty of Public Law.
E-mail: kumushenglisher@gmail.com
https://doi.org/10.5281/zenodo.12716017
Annotation:
this article is aimed to answer to question whether the
International Court of Justice (ICJ) has opened floodgates for addressing
community interest based claims:
erga omnes partes
standing. The analysis to
answer to this question has done through the Court’s case law and scholars’
opinion on this matter. There are several contradictions on the issue of
erga
omnes partes
standing and the related category
actio popularis
, however, the
room for recognizing this type of standing is largely opened.
Key words
:
erga omnes
,
erga omnes partes
,
actio popularis
,
locus standi
.
From the recent ICJ’s case law, it is known that each State party to a human
rights treaty has standing for protection of
erga omnes partes
obligations, i.e.
collective obligations.
1
One of the latest Court’s decision can confirm this conclusion. In the
Application
of the Convention on the Prevention and Punishment of the Crime of Genocide in
the Gaza Strip (South Africa v. Israel)
the ICJ has addressed the issue
of erga
omnes partes
standing. In accordance with this case, South Africa had standing
before the Court as a State party to the Genocide Convention and thus, has a
legal interest in compliance with
erga omnes partes
obligations.
2
During the oral
proceedings, Israel did not challenge South Africa’s standing to bring a claim.
Moreover, South Africa itself referred to
erga omnes partes
standing only in one
paragraph,
3
not discussing it own standing broadly. We believe, it is because
now,
erga omnes partes
standing before the Court is accepted category.
4
All what
1
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal) (2012) ICJ
Rep 422, [68];
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide
(The Gambia v. Myanmar) Preliminary Objections (2022) ICJ Rep 477, [107];
Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (
Canada and the Netherlands v. Syrian Arab Republic) Provisional Measures (2023),
[55];
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in
the Gaza Strip
(South Africa v. Israel) Provisional Measures (2024), [33].
2
Ibid
.
3
Application instituting proceedings and request for the indication of provisional measures
(South
Africa v. Israel) (2023) ICJ, [5].
4
FaridAhmadov, (ed. Malgosia Fitzmaurice & Sarah Singer)
The Right of ActioPopularis before the
International Courts and Tribunals
(Brill Nijhoff, 2018), 22.
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is required is to be a State party to the convention in question.
5
However, the
procedure was not always as simple as it stands in present. Application of
erga
omnes partes
standing has a long and controversial history.
6
There are still
contradictions, which were not addressed by the Court in terms of
erga omnes
partes
standing.
For instance, all human rights treaties are designed to protect a common
interest.
7
If this description is correct, then it appears that all obligations related
to human rights treaties are
erga omnes partes
.
8
Does it mean that all State
parties to particular human rights treaty, regardless of the significance of the
rights involved, have
prima facie
standing before the Court?
9
Have the Court’s
latest decisions opened the floodgates for instituting proceedings for alleged
violations of
erga omnes partes
norms? This article is aimed to answer to this
question.
The Court, when it dealt with the claims of protection of a
collective/common/general interest, applied the rules of standing very carefully.
For example, Judge Oda, in the
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
case,
10
suggested approach in accordance with, parties can have standing before
the Court only for protection of their direct legal interest, i.e. being an injured
State.
11
He justified such approach under police issues, reflected in the caution
that the Court may run the risk of opening the floodgate for numerous cases of a
5
Belgium v Senegal
, [68].
6
KébaMbaye, “L’intérêt pour agirdevant la Courinternationale de Justice” [Standing before the
International Court of Justice] (1988) 209
Collected Courses of the Hague Academy of
International Law
227, 299.
7
ILC, Special Rapporteur James Crawford,
Third Report on State Responsibility
(2000)
A/CN.4/507, [92].
8
Human Rights Committee General Comment No. 31: The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, UN Doc ICCPR/C/21/Rev.1/Add.13 (2004), [2]; Erika
De Wet, The International Constitutional Order, 55 INT’L & COMP. L.Q. (2006), 55.
9
Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain) Second Phase (1970)
ICJ Rep 6, [91]: “the instruments which emdiv human rights do not confer on States the capacity
to protect the victims of infringements of such rights irrespective of their nationality. It is therefore
still on the regional level that a solution to this problem has had to be sought; thus, within the
Council of Europe.” In other words, the corresponding duty to protect the right to access to justice
does not qualify as an obligation
ergaomnes
; Manfred Lachs, The Development and General Trends
of International Law in Our Time, 169 Recuel des Cours 9 (1980).
10
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) 1996, ICJ Rep 7.
11
Oda’s Declaration,
Genocide Convention
case (Bosnia and Herzegovina v Yugoslavia)
Preliminary Objections (1996), [10].
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similar character.
12
Furthermore, this view was also supported by the ICJ’s
expert Shabtai Rosenne, who was convinced that only injured States can bring a
claim for a violation of Genocide Convention under Article IX.
13
Such view is in contradiction with the Court’s decisions, namely
Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar)
and
South Africa v. Israel
cases, where the Convention in
question was Genocide case. Moreover, the notion that only injured States can
bring a claim for protection of their legal interest would preclude
actio
popularis
.
14
Thus,
erga omnes partes
standing before the Court did not always had a singular
approach and developed over time. We shall start our analysis by referring to
the
South West Africa Cases (Ethiopia and Liberia v. South Africa)
of 1966,
15
where the controversial begins.
In the
South West Africa
case
the Court found that the Applicants (Ethiopia and
Liberia) did not have a standing to bring a claim for protection of a common
interest.
16
The reasoning of the Court’s finding was simply lying on the fact that
Applicants lacked a legal interest. Jurisdictional clause under Article 7(2) of the
Mandate Agreement was not sufficient to enforce a collective interest under
Article 22 of the Covenant of the League of Nations.
17
However, the reason is
much deeper than just a lack a legal interest. The core of the issue is the
existence of
legal dispute
between the parties.
Judge Morelli in his dissenting opinion pointed out a lack of a legal dispute, and,
thus, Ethiopia and Liberia were not entitled to bring a claim. A mere fact that
Applicants were State parties to the Covenant was not sufficient itself to bring a
claim. As a result, the Court proclaimed that Ethiopia and Liberia did not have a
legal interest to address the issue.
18
An issue of the existence of the dispute between the parties was decided by
interpretation of the jurisdictional clause of the Mandate agreement (Article
7(2)). In accordance with this provision,
12
Ibid
.
13
ShabtaiRosenne,
“War Crimes and State Responsibility”
in Y. Dinstein, M. Tabory (eds.), War
Crimes in International Law, (The Hague, 1996), p. 81.
14
FaridAhmadov, (ed. Malgosia Fitzmaurice & Sarah Singer)
“The Right of ActioPopularis before
the International Courts and Tribunals”
(Brill Nijhoff, 2018), 321.
15
South West Africa Cases
(Ethiopia and Liberia v. South Africa) Second Phase (1966) ICJ Rep 6.
16
Ibid
., [88].
17
Ibid
., [20].
18
Dissenting Opinion of judge Morelli,
South West Africa Cases
(Ethiopia and Liberia v. South
Africa) Preliminary Objections (1962) ICJ Rep 6, 571.
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“…
if any dispute whatever should arise between the Mandatory and another
Member of the League of Nations relating to the interpretation or the application
of the provisions of the Mandate, such dispute, if it cannot be settled by
negotiation, shall be submitted to the Permanent Court of International Justice
provided for by Article 14 of the Covenant of the League of Nations
.”
19
Moreover, the reference is made to the
Mavrommatis Palestine Concessions
case
20
in accordance with
dispute isa disagreement between two persons on point
of law or fact
.
21
Indeed, there was a contradiction of opinions between the parties on application
and interpretation of the Mandate Agreement. However, the Court decided to
interpret the definition of the dispute very narrowly, limiting it only to
contradiction which may arise with tangible interests.
22
Thus, such limitation of
the term of dispute lead to the conclusion that jurisdictional clause under Article
7(2) was not intended to cover disputes for protection of a general interest.
23
The Court did not find evidence that the drafters intended to construe the
jurisdictional clause in the way to enforce a collective interest.
24
Generally
speaking, Article 7(2) of the Mandate Agreement was limited only to tangible
legal interest, in order for a general interest exist it must be clearly stipulated in
the treaty itself:
“The Court simply holds that such rights or interests, in order to exist, must be
clearly vested in those who claim them, by some text or instrument, or rule of
law”.
25
We must give a specific attention to the fact that the substantial provisions of the
Mandate Agreement were not taken into account while making such conclusion.
The Court, in its now famous
obiter dictum
, stated that there is a certain category
of obligations to which the international community as whole has a legal interest
in their protection; they are obligations
erga omnes
.
26
The Court mentioned
examples of
erga omnes
obligations, which are the prohibition of an act of
aggression, genocide, protection from slavery and racial discrimination. Other
obligations of
erga omnes
nature can derive from the international instruments
19
South West Africa
, [60].
20
South West Africa Cases
(Ethiopia and Liberia v. South Africa) Preliminary Objections (1962)
ICJ Rep 319.
21
Mavrommatis Palestine Concessions
(Greece v. Britain) (1924) PCIJ No.3.
22
South West Africa
, [44].
23
Joint Dissenting Opinion of judges Spender and Fitzmaurice, ICJ Reports, 1962, 548.
24
Dissenting Opinion of judge Winiarski, ICJ Reports, 1962, 452.
25
South West Africa
, [44].
26
Barcelona Traction
, [33].
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of universal and quasi-universal character.
27
There are certain debates between
scholars whether
Barcelona Traction
case overruled
South West Africa
decision.
28
Indeed,
Barcelona Traction
was a departure from
South West Africa
case and
overruled it.
29
Specifically, the Court’s approach has changed with regards to the
definition of dispute. Barcelona’s pronouncement on
erga omnes
obligations has
broadened the scope of dispute by including a general interest into a legal
interest. This broad approach on acceptance that certain obligations are concern
of the international community as a whole was admitting of
actio popularis
, i.e.
claims on enforcement of a collective interest.
Therefore, in
Barcelona Traction
case, the Court’s interpretation of jurisdictional
clause was broadened to include a general interest. Thus, granting standing on
erga omnes partes
basis highly referred to the character of the treaty in
questions, which is designed to protect a common interest and a liberal
interpretation of the jurisdictional clause.
It is worth to mention that there are also cases when
actio popularis
does not
always depend on interpretative functions of the Court.
30
States can include the
right to protect a collective interest in a treaty itself by express provisions. All
what left is to apply such express treaty stipulation to bring a claim.
31
Examples
include Article 33 of the European Convention on Human Rights:
“
Any High Contracting Party
may refer to the Court any alleged breach of the
provisions of the Convention and the Protocols thereto by another High
Contracting Party”.
32
This provision is a clear example of
actio popularis
, the right of any State party to
bring a claim for protection of a common interest under a treaty. In practice of
the International Court of Justice there was not such a case, where a treaty
stipulation was specifically provided. Nevertheless, the predecessor of the Court
has referred in
S.S. Wimbledon
decided by the PCIJ.
33
All State parties to the
27
Ibid
., [34].
28
Manfred Lachs,
“The development and general trends of international law in our time”
, 169 RdC
(1980), 341, suggesting that there is a long way between Barcelona and actiopopularis; Ch. Chinkin,
“Third Parties in International Law”
(1995), 215; D. Gray,
“Judicial Remedies in International
Law”
(1990), 214.
29
F.A. Mann,
“The Doctrine of jus cogens in international law, Further Studies in International
Law”
(1977), 96; Schwelb,
“The ActioPopularis and International Law”
, 2 Israel Yearbook of
Human Rights (1972), 46–55.
30
Christine Tams, “Enforcing obligations ergaomnes in International Law” (2005), pp. 76–79.
31
FaridAhmadov, (ed. Malgosia Fitzmaurice & Sarah Singer)
“The Right of ActioPopularis before
the International Courts and Tribunals”
(Brill Nijhoff, 2018), 315.
32
European Convention on Human Rights, Article 33.
33
S.S.
Wimbledon
,
Britain et al. v. Germany
(1923) PCIJ Series A01.
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Versailles Convention had a legal interest in performance with essential
obligations under the treaty. More specifically, the right of each State party to
the Convention to have a free access to Keil Canal.
34
In that case there were four
Applicants: Italy, Japan, United Kingdom and France, the Court has found that
each of them had a legal interest and thus had a right to institute proceedings.
Under Article 386 of Versailles Convention:
“In the event of violation of any of the conditions of Articles 380–386, or of
disputes as to the interpretation of these articles,
any interested Power
can
appeal to the jurisdiction instituted for the purpose by the League of Nations”.
Thus, “each of the four Applicant Powers has a clear interest in the execution of
the provisions relating to the Kiel Canal, since they all possess fleets and
merchant vessels flying their respective flags”.
35
The
S.S. Wimbledon
is the only
decision, where
actio popularis
category was accepted by the Court because of
the express treaty provisions to protect a common interest.
While, the Court’s position is clear with the cases of express treaty stipulation,
our concern is related to cases when there are no such express treaty provisions.
Following the analysis of the
Barcelona Traction
case, we refer to situations,
where the Court finds standing by interpreting a jurisdictional clause and
substantial provisions of the treaty. Moving back to the initial question, can this
approach be used with any treaties, which are designed to protect a collective
interest?
In
Questions relating to the obligation to Prosecute or Extradite
case, the Court
granted Belgium’s standing merely on the fact that it was a State party to the
Torture Convention and therefore it has a legal interest in performance of
erga
omnes partes
obligations.
36
Moreover, the Court established a test on
identification of
erga omnes partes
obligations.
Erga omnes partes
obligations are
those obligations, which are incorporated to fulfill the object and purposeof a
treaty and, therefore, to preserve State parties’ common interest.
37
Under strict analysis, it is clear that there first question, which the Court
addressed itself was: is the Torture Convention designed to protect a common
interest? The answer was positive: “As stated in its Preamble, the object and
purpose of the Convention is to make more effective the struggle against torture
. . .
throughout the world
.”
38
Moreover, in order to make a parallel, the reference
34
Series A, No. 1, August 17th, 1923, p. 23.
35
Ibid
., p.20.
36
Belgium v. Senegal
, [68].
37
Ibid
.
38
Ibid
.
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was given to
Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, Advisory Opinion of 1951
, by reaffirming 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.”
39
We suppose that this is done so to demonstrate the importance of the rights
involved and thus
erga omnes partes
standing must be granted to protect a
common interest. This leads to conclusion that in cases of protection of
collective interest significance of the rights play essential role. However, there
was a dissent to majority’s opinion from several judges, namely from Judge Xue
and Judge Scotnikov.
Judge Skotnikov cast doubt on the Court’s conclusion that the entitlement of
States to invoke responsibility of other States parties to the Torture Convention
may be implied (inferred) from the mere fact that it is a State party to the
Convention. His Excellency’s concern in this regard is that such approach would
lead to making declarations to exclude the Court’s jurisdiction in future cases.
40
Moreover, he refers to the question whether it is possible to compare and equal
Torture Convention with Genocide Convention.
41
We believe that His
Excellency’s concern in this matter, especially with excluding the Court’s
jurisdiction, is a valid one. Overall, His Excellency’s disagreement goes to the fact
the Torture Convention was interpreted in a way that more it can bear, i.e.
treaty’s ability toinstitute proceedings for protection of a common interest. As it
was stated above, such interpretation is a liberal interpretation of jurisdictional
clause in conjunction with a character of the substantial provisions. Following
Judge Scotnikov’s opinion, in order to grant standing for protection of a
collective interest, this right must be specifically provided in the treaty itself:
“[i]n order to take such steps, i.e. to invoke responsibility in the sense of the
articles, some more specific entitlement is needed. In particular, for a State to
invoke responsibility on its own account it should have a specific right to do so,
e.g. a right of action specifically conferred by a treaty, or it must be considered
an injured State.”
42
Thus, Judge Scotnikov concluded that a reasoning of
Belgium’s standing before the Court has not found in law, be it conventional or
39
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion
, ICJ Rep (1951), p. 23.
40
Declaration of Judge Scotnikov,
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal) (2012) ICJ Rep 422, [15].
41
Ibid
.
42
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 127.
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customary.
43
Again, in that case the Court has used an approach of liberal
interpretation of a treaty by extending its ability to cover disputes for protection
of a common interest, which are based on application and interpretation of the
treaty. Since the question of the broad interpretation of the jurisdictional clause
for protection of a common interest is clear, the turn goes to substantial
provisions themselves, i.e.
erga omnes/erga omnes partes
obligations.
There are two things to keep in mind with regards to this category of
obligations:
Erga omnes partes
obligations are incorporated to protect a
collective interest, i.e. to fulfill the object and purpose of the treaty.
44
Even listing
the Court’s decisions, where
erga omnes partes
standing was recognized, the
Conventions in question were Genocide Convention or Torture Convention:
-
Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal) case
: Torture Convention;
-
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar) case
: Genocide Convention;
-
Application of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian
Arab Republic) case
: Torture Convention;
-
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide in the Gaza Strip (South Africa v. Israel) case
: Genocide
Convention.
From the listed case law, it can be concluded that the Court recognizes
erga
omnes partes
standing in relation to
jus cogens
norms. Thus, the Court while
interpreting the jurisdictional clause to grant standing, the character of the norm
is significantly involved. This is done so to avoid policy issue, when any State
party to any treaty can institute proceedings to enforce collective interest.
However, there is one particular case when a non-injured State brought a claim
before the ICJ to protect a collective interest:
Whaling
case.
45
The essentiality of
this case is the claim was brought to protect a collective interest, not involving
jus cogens
norms. This seems to be an implicit recognition of standing for
protection a collective interest regardless of the significance of the rights
involved.
Australia invoked Japan’s responsibility for violations of Whaling Convention.
Respondent did not challenge Applicant’s standing for protection of a collective
43
Declaration of Judge Scotnikov, [22].
44
ILC,
Articles on Responsibility of States for Internationally Wrongful Acts
(2001) A/56/49,
Article 48(1)(a).
45
Whaling in Antarctics
(Australia v. Japan: New Zealand intervening) (2014) ICJ Rep 226.
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interest. Nevertheless, the Court itself raised this issue during the hearings,
specifically judge Bhandari addressed the question of
locus standi
. The Counsel’s
answer was following:
“Every party has the same interest in ensuring compliance by every other party
with its obligations under the 1946 Convention. Australia is seeking to uphold
its collective interest, an interest it shares with all other parties”.
46
In the text of the judgement, the Court did not refer to Australia’s standing,
because it was not challenged by Respondent. However, the Court could do so
under the principle of
proprio motu
(own motion). In accordance with this
principle,
the Court must satisfy itself that it has jurisdiction to hear the case and
the claim is admissible
.
47
Despite the fact that the Respondent or the Court did
not raise a question of the Applicant’s standing, Australia’s claim was still
admissible, it seems that it was an implicit recognition of
erga omnes partes
standing. Commentaries to Article 48 of the Articles on State Responsibility for
Internationally Wrongful Acts list the category of treaties, which are specially
designed to protect a collective interest. “They might concern, for example, the
environment or security of a region (e.g. a regional nuclear-free-zone treaty or a
regional system for the protection of human rights)”.
48
However, in the above
listed cases the ICJ did not refer to Article 48 of ARSIWA, moreover, the
commentaries itself recognizes that the rule of standing under this article is
a de
lege ferenda
.
Conclusions
The first conclusion comes from the analysis of
erga omnes partes
standing is, in
order to bring a claim for protection of a collective interest, there must be a legal
dispute between the parties. It is not fully, but partially decides the issue of
opening the Court’s floodgates to bring a claim for protection of a common
interest. Indeed, it is true that a liberal interpretation of jurisdictional clauses
can include disputes that are based on a mere contradiction of opinions between
the State parties, however, the Court will address other features of the treaty.
For example, as it is done so in the
Belgium v. Senegal
case, the Court first
identified whether the parties intended to protect a common interest by
referring to its preamble. Thus, the existence of the dispute between the parties
partially decides policy issue of opening the floodgates. The other point is, in all
of the cases, where the ICJ expressly established an
erga omnes partes
standing
were concerning the application and interpretation of the Genocide or Torture
46
Presentation by Henry Burmester, Verbatim Record, CR 2013/18, 9 July 2013, 28, [19].
47
South West Africa
, [8].
48
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p.126.
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Convention. The only case, where the ICJ did not deal with human rights treaty,
however, implicitly recognized an
erga omnes partes
standing was
Whaling
case.
A concern is directed to Whaling case, because there is a possibility that in
future cases, this Court will grant standing for protection of a common interest
regardless of the significance of the rights involved. Thus, the floodgates for
erga
omnes partes
claim will be open. In cases, where
jus cogens
norms involved, the
recognition of protection of a collective interest is necessary due to the fact that
those are concern of the international community as whole. Especially, in the
present stage of development of international law, it transcends the bilateral
concept till a community interest.
49
Even if there is a concern of the international
community for opening the floodgates, today’s tendency of development of
inter-State relations lead to the recognition of community interest based claims.
References:
1.
F.Ahmadov, (ed. Malgosia Fitzmaurice & Sarah Singer) The Right of
ActioPopularis before the International Courts and Tribunals (Brill Nijhoff,
2018);
2.
K.Mbaye, “L’intérêt pour agirdevant la Courinternationale de Justice”
[Standing before the International Court of Justice] (1988) 209 Collected
Courses of the Hague Academy of International Law;
3.
Sh.Rosenne, “War Crimes and State Responsibility”(The Hague Academy,
1996);
4.
Manfred Lachs, “The development and general trends of international law
in our time”, (1980);
5.
Ch.Chinkin, “Third Parties in International Law” (1995);
6.
F.Mann, “The Doctrine of jus cogens in international law, Further Studies
in International Law” (1977);
7.
M.Schwelb, “The ActioPopularis and International Law”, 2 Israel Yearbook
of Human Rights (1972);
8.
Ch.Tams, “Enforcing obligations ergaomnes in International Law” (2005);
9.
U.Fastenrath, “From Bilateralism to Community Interest: Essays in Honour
of Bruno Simma” (Oxford, 2011).
10.
ILC, Special Rapporteur James Crawford, Third Report on State
ResponsibilityA/CN.4/507 (2000);
11.
ILC, Articles on Responsibility of States for Internationally Wrongful
ActsA/56/49 (2001);
49
Fastenrath, Ulrich, and others (eds), “
From Bilateralism to Community Interest: Essays in Honour
of Bruno Simma”
(Oxford, 2011), p.25.
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12.
Yearbook of the International Law Commission, 2001, Vol. II, Part Two;
13.
Human Rights Committee General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant,
CCPR/C/21/Rev.1/Add.13 (2004).
