On Obligations Erga Omnes Partes

ON OBLIGATIONS ERGA OMNES PARTES

POK YIN S. CHOW*

BSTRACT

This Article addresses the development of obligations erga omnes partes and

their legal status, and clariﬁes the extent to which the notion has had an

impact on the enforcement of multilateral treaties and, in particular, human

rights conventions by examining international and regional case law, soft law

instruments, and state practice. It argues that the endorsement of the concept by

the International Court of Justice (ICJ) has the potential to dramatically

expand its application to breaches of all kinds of multilateral treaties where

such breaches amount to violations of obligations pertaining to a treaty’s object

and purpose. In this sense, a violation of an obligation erga omnes partes is

conceptually identical to a “material breach” envisaged under Article 60(2) of

the Vienna Convention on the Law of Treaties, but the development of the

rele-

vant

rules gives the claimant state an additional procedural remedy to institute

proceedings against the violating state to end the breach.

I. I

NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

II. T

HE SOUTH WEST AFRICA CASES: WHERE THE CONTROVERSY BEGAN 474

III. B

ARCELONA TRACTION—WHAT HAS REALLY CHANGED? . . . . . . . . . 480

IV. T

HE ARSIWA: TWO TYPES OF LEGAL STANDING . . . . . . . . . . . . . 485

V. T

HE RECEPTION OF OBLIGATIONS ERGA OMNES PARTES BY THE ICJ . 493

A. Standing, Admissibility, and Jurisdiction

. . . . . . . . . . . . . . 498

B. Obligations Erga Omnes Partes and Provisional Measures 500

VI. C

ONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503

I. I

NTRODUCTION

For many years, it was unclear whether a state might have standing

before the International Court of Justice (ICJ) to initiate proceedings

against another for alleged human rights violations. Unless a country

was somehow directly affected by the breach (for example, if the

viola-

tion

was committed against its nationals abroad, upon which diplomatic

* Dr. Pok Yin Stephenson Chow is an Assistant Professor at the School of Law, City University

of Hong Kong, [email protected]. The author would like to thank Ms. Urania Chiu,

Mr. Taige Hu, Ms. Nikita Nandakumar, and Ms. Vamika Puri for their research assistance. He

would also like to thank Prof. Michael Tsimplis for his comments on an earlier version of the

draft. Any errors or omissions remain my own. This research is generously supported by City

University of Hong Kong’s Start-up grant (Project no.: 7200556).

2021, Pok Yin S. Chow.

469

protection might be invoked,

or if the violation, though perpetuated by

another state, occurred within its territory),

it was not certain whether a

state had a legal interest (as opposed to a moral interest) in seeing human

rights norms enforced.

The perception that no state may bring a case to

the ICJ on behalf of foreign individuals or groups was reinforced by the

ICJ’s observations in the South West Africa (Second Phase) case that “an actio

popularis, or right resident in any member of a community to take legal

action in vindication of a public interest . . . is not known to international

law as it stands at present.”

Therefore, when the ICJ pronounced in its

dictum in Barcelona Traction that certain human rights obligations are

obligations erga omnes, insofar as “all States can be held to have a legal in-

terest in their protection,”

it was not clear whether the ICJ intended to

1. See, e.g., Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment, 1924 P.C.I.J. (ser.

A) No. 2, at 12 (Aug. 30); Panevezys-Saldutiskis Railway (Est. v. Lith.), Judgment, 1939 P.C.I.J.

(ser. A/B) No. 76, at 16 (Feb. 28); Nottebohm (Liech. v. Guat.), Second Phase, Judgment, 1955 I.

C.J. 4, at 24 (Apr. 6).

2. See, e.g., Application of Convention on Prevention and Punishment of Crime of Genocide

(Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26); see also Military and

Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits Judgment, 1986 I.C.J. 14

(June 27) (concerning the sponsoring of paramilitary activities by a foreign State within domestic

territory; other examples including extraterritorial abductions within domestic territory).

3. South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, Judgment, 1966 I.C.J. 6, ¶

41–59 (July 18) [hereinafter 1966 South West Africa case] (“Humanitarian considerations may

constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the

United Nations Charter constitute the moral and political basis for the speciﬁc legal provisions

thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All

States are interested—have an interest—in such matters. But the existence of an “interest” does

not of itself entail that this interest is speciﬁcally juridical in character. . . . In order to generate

legal rights and obligations, it must be given juridical expression and be clothed in legal form.”).

See also Judge ad hoc Skubiszewski in his dissenting opinion in the East Timor case, where he

pointed out that there is always “a myriad of interests” (social, economic, political, and moral)

that States have, as individual members of the international community, in compliance with

certain rules of international law. However, in order for such an interest to be legally enforceable,

it must be one that is legally protected. East Timor (Port. v. Austl.), Judgment, 1995 I.C.J. 90, 224,

¶ 103–104 (June 30) [hereinafter East Timor] (dissenting opinion by Skubiszewki, J.); see South

West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1962 I.C.J. 455 (Dec. 21)

[hereinafter 1962 South West Africa case (Preliminary Objections)] (dissenting opinion of Winiarski,

J.) (remarking that, in order to ﬁnd the applicant States to have obtained the capacity to raise a

claim against the respondent State before the ICJ, there must exist “a subjective right, a real and

existing individual interest which is legally protected.”).

4. 1966 South West Africa case, supra note 3.

5. Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Second Phase,

Judgment, 1970 I.C.J. 3, ¶ 33, 35 (Feb. 5) [hereinafter Barcelona Traction].

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

470 [Vol. 52

overturn its ﬁnding in South West Africa and, if not, how these two seem-

ingly incompatible positions could be reconciled.

The disjunction in the ICJ’s remarks triggered an extensive debate

on the requirements for acquiring legal standing.

Some doubt the

idea that a breach of an international obligation may give rise to

univer-

sal

standing for all states, because responsibility under international law

has traditionally been premised on the conceptions of “tort” or “delict”

and was thus “acknowledged only in relation to another state.”

Furthermore, the acknowledgment of obligations erga omnes implies

that states can be held accountable to all members of the international

community based on judicial endorsement of the signiﬁcance and

im-

portance

of the obligations involved for all other states.

This has the

effect of disrupting the horizontal structure of international law,

wherein states are the only legislators.

It also threatens to impose a

decentralized mode of law enforcement that may, it is feared,

encour-

age

an abusive and/or political use of international law.

The general dismissal of the concept of obligations erga omnes also

underpins much of the skepticism in relation to obligations erga omnes

partes. Like the idea of obligations erga omnes, obligations erga omnes

6. See, e.g., Egon Schwelb, The Actio Popularis and International Law, 2 ISR. Y.B. HUM. RTS. 46

(1992).

7. Id.; see also C

HRISTIAN J. TAMS, ENFORCING OBLIGATIONS ERGA OMNES IN INTERNATIONAL LAW

15 (2005); Krystyna Marek, Criminalizing State Responsibility, 14 REVUE BELGE DE DROIT INT’L 460,

481–82 (1978–79); Stephen McCaffrey, Lex Lata or the Continuum of State Responsibility, in

NTERNATIONAL CRIMES OF STATE: A CRITICAL ANALYSIS OF THE ILC’S DRAFT ARTICLE 19 OF STATE

RESPONSIBILITY 242, 244 (Joseph Weiler, Antonio Cassese & Marina Spinedi eds., 1989); Peter D.

Coffman, Obligations Erga Omnes and the Absent Third State, 39 G

ER. Y.B. OF INT’L L. 285, 296–97

(1996); Evan J. Criddle, Standing for Human Rights Abroad, 100 C

ORNELL L. REV. 269, 329 (2015).

8. Clyde Eagleton, International Organization and the Law of Responsibility, 76 R

ECUEIL DES COURS

319, 423 (1950) (“Responsibility [under traditional international law] was acknowledged only in

relation to another state; it was based on ‘tort’ or ‘delict’ . . . The two states concerned fought it

out as between themselves, and no one else had the right to interfere.”).

9. Id. Therefore, it was thought that a breach of an erga omnes obligation only gave rise to a

right to self-help remedies, such as to insist on fulﬁlment of the obligation or call for the breach

to be discontinued and, when such remedies failed, to impose countermeasures/retorsions

falling short of the use of force (such as imposing unilateral sanctions) with a view to pressuring

the violating States into compliance.

10. See Barcelona Traction, supra note 5, ¶ 33 (“In view of the importance of the rights involved,

all States can be held to have a legal interest in their protection; they are obligations erga omnes.”).

11. Coffman, supra note 7, at 297; Criddle, supra note 7, at 329.

12. T

AMS, supra note 7, at 14; Marek, supra note 7, at 481–82 (describing universal standing as

potentially leading to “mob justice”); McCaffrey, supra note 7, at 244 (“It would seem that any

situation allowing each member of the international community to take individual action would

amount to a state of vigilantism, and thus simply be an invitation to chaos.”).

ON OBLIGATIONS ERGA OMNES PARTES

2021] 471

partes purport to provide legal standing for states not directly injured,

provided that these states are also parties to the same treaty.

In so

doing, the concept challenges the deeply held belief that multilateral

treaties consist of bundles of bilateral, reciprocal rights and obliga-

tions.

It has therefore been argued that the concept of erga omnes

partes stretches the interpretation of treaties and therefore of state con-

sent.

Similar to obligations erga omnes, the concept of obligations erga

omnes partes also threatens to give rise to a scattered mode of enforce-

ment where every state party to a convention may invoke responsibility

for a breach.

In November 2019, The Gambia ﬁled a request for provisional

meas-

ures

against Myanmar, alleging that Myanmar had committed genocide

against the Rohingya population contrary to the Genocide

Convention.

For decades, tensions had been growing between the

Rohingya, who are mostly Muslim, and the majority Bamar Buddhist

population, leading to an armed conﬂict between the Arakan Rohingya

Salvation Army (ARSA) and Myanmar’s military.

Violent clashes

between insurgents and government forces intensiﬁed after August

2017, leaving many, including children, killed or maimed.

Rape and

sexual violence “were perpetrated on a massive scale.”

In its judgment for the indication of provisional measures, the ICJ

found that The Gambia had prima facie standing against Myanmar,

de-

spite

the fact that the African country is situated more than 7,000 miles

from Myanmar, and therefore seemingly lacked a tangible connection

to the dispute.

See Application of Convention on Prevention and Punishment of Crime of Genocide

(Gam. v. Myan.), Provisional Measures, ¶ 42 (Jan. 23, 2020) [hereinafter The Gambia v. Myanmar],

https://www.icj-cij.org/public/ﬁles/case-related/178/178-20200123-ORD-01-00-EN.pdf.

The ICJ ruled that “[i]n view of their shared values, all

13. See, e.g., Questions Relating to Obligation to Prosecute or Extradite (Belg. v. Sen.),

Judgment, 2012 I.C.J. 422, ¶ 68 (July 20) [hereinafter Belgium v. Senegal].

14. See, e.g., Christian Dominice´, The International Responsibility of States for Breach of Multilateral

Obligations, 10 E

UR. J. INT’L L. 353, 354 (1999).

15. Belgium v. Senegal, supra note 13 (dissenting opinion of Xue, J. ¶ 12); id. (dissenting

opinion of Sur, J. ¶ 38).

16. An ethno-religious minority with an estimated population of 1–1.5 million, the Rohingya

are a heavily deprived stateless nation residing in the Rakhine State of Myanmar. Over the

decades, the government of Myanmar has sought systematically to deprive the group of their civil

and political rights. See A. K. M. Ahsan Ullah, Rohingya Crisis in Myanmar: Seeking Justice for the

“Stateless,” 32 J. C

ONTEMP. CRIM. JUST. 285 (2016).

17. See Hum. Rts. Council, Rep. of the Indep. Int’l Fact-Finding Mission on Myan., ¶¶ 31–35,

U.N. Doc. A/HRC/39/64 (Sept. 12, 2018).

18. Id. ¶ 37.

19. Id. ¶ 38.

20.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

472 [Vol. 52

the States parties to the Genocide Convention have a common interest

to ensure that acts of genocide are prevented.”

The Gambia, being a

party to the Genocide Convention, therefore has a legal interest in

compliance with the convention obligations, as they are obligations

erga omnes partes, i.e., obligations owed “by any State party to all the

other State parties.”

The ﬁnding that The Gambia had standing on

the basis of the erga omnes partes obligations revived the ﬁerce disagree-

ments over this novel concept.

See id. ¶¶ 4–8 (separate opinion by Xue, V.P.), https://www.icj-cij.org/public/ﬁles/case-

related/178/178-20200123-ORD-01-01-EN.pdf; see also Belgium v. Senegal, supra note 13

(dissent

ing opinion of Sur, J. ¶ 44) (stating that the notion of “erga omnes partes” was described

in Judge ad hoc Sur’s dissenting opinion in Belgium v. Senegal as “a rabbit from a magician’s hat”)

The purpose of this Article is to evaluate the legal status of obliga-

tions

erga omnes partes and their implications for the law regarding legal

standing.

Sections II and III discuss the South West Africa

and

Barcelona Traction cases,

the two most cited yet highly controversial

authorities on the subject.

Among other issues, the Article will dem-

onstrate

that far from being a mysterious idea that came out of

nowhere, the concept that a state may have legal standing to call for the

enforcement of international legal obligations, even if it has not

suf-

fered

a direct injury, existed well before the South West Africa cases.

Section IV examines the International Law Commission’s (ILC) efforts

to codify the law on legal standing and how its body of work inﬂuenced

the decisions of regional courts and international tribunals. Section V

discusses how the ICJ reacted to the concept in case law and how its

view on the subject potentially transforms how the notion should be

approached. Section VI offers some conclusions from this study.

21. Id. ¶ 41.

22. See id.

23.

24. The notion of standing (locus standi) in international law has never been clearly deﬁned. A

commonly accepted understanding of legal standing is that it constitutes “the requirement that a

State seeking to enforce the law establishes a sufﬁcient link between itself and the legal rule that

forms the subject matter of the enforcement action.” T

AMS, supra note 7, at 26. Note that legal

standing in international law does not only refer to being a party to a court proceeding, but also

describes one of the legal requirements on the basis of which a State may lawfully take self-help

enforcement actions against another State, including, for instance, countermeasures and

retorsions. Nevertheless, this article focuses on the standing to pursue legal proceedings.

25. 1962 South West Africa case (Preliminary Objections), supra note 3; 1966 South West Africa case,

supra note 3.

26. Barcelona Traction, supra note 5.

27. The signiﬁcance of the two cases for legal standing has been ﬁercely debated. See infra

Sections II and III below.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 473

II. THE SOUTH WEST AFRICA CASES: WHERE THE CONTROVERSY BEGAN

The South West Africa cases are a common starting point for under-

standing

under what circumstances a state may acquire standing before

the international court.

Namibia (then German South West Africa)

was placed under South Africa’s mandate after Germany’s defeat in

World War I.

After World War II, South Africa lodged a request with

the General Assembly for Namibia to be incorporated into its

terri-

tory.

The request was declined by the General Assembly, but South

Africa continued its occupation of Namibia.

In 1960, Ethiopia and

Liberia instituted proceedings against South Africa, seeking a

declara-

tion

from the world court that South Africa had been in breach of its

duties as a mandatory power, that Namibia remained a mandate, and

that, because of South Africa’s failures, Namibia should be placed

under the supervision of the United Nations.

In the ICJ’s 1962 South

West Africa case (Preliminary Objections), the issue was whether Ethiopia

and Liberia had standing before the ICJ over South Africa’s alleged

breaches of the terms of the Mandate, an instrument entered into

between South Africa and the Allied Powers.

The majority of the

bench took note of the compromissory clause under Article 7(2) of the

Mandate, which provided that:

[I]f 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 . . . if it cannot be settled by negotiation, [it] shall be

submitted

to the Permanent Court of International Justice.

Commenting on the way the provision is worded, the ICJ observed

that:

[T]he manifest scope and purport of the provisions of this

Article

indicate that the Members of the League were

28. 1962 South West Africa case (Preliminary Objections), supra note 3; 1966 South West Africa case,

supra note 3.

29. For an excellent background to the case, see Richard A. Falk, The South West Africa Cases: An

Appraisal, 21 I

NT’L ORG. 1, 2–5 (1967).

30. Id. at 2.

31. Id. at 3.

32. Id. at 3.

33. 1962 South West Africa case (Preliminary Objections), supra note 3.

34. Id. at 335.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

474 [Vol. 52

understood to have a legal right or interest in the observance

by the Mandatory of its obligations both toward the inhabitants

of the Mandated Territory, and toward the League of Nations

and its Members.

Thus, the majority found—by a narrow vote of eight to seven—that

Ethiopia and Liberia had standing in the dispute.

The above decision was, however, met with strong dissent. Judges

Spender and Fitzmaurice, in their joint dissenting opinion, observed

that Article 7 of the Mandate could not be understood in the abstract;

rather, the Article must be interpreted in light of other provisions of

the international agreement.

They further observed that:

The Mandate . . . has two main classes of substantive provisions.

The

ﬁrst . . . comprises the provisions inserted for the beneﬁt

of the

peoples of the territory [the ‘conduct clauses’]. The

other

. . . comprises those which were inserted for the national

beneﬁt of the Members of the League and their nationals

(commercial rights, open door, freedom for missionary

activ-

ities,

etc.) [the ‘special interest clauses’]. .

. . Article 7 must be

understood as referring to a dispute in the traditional sense of

the term, as it would have been understood in 1920, namely a

dispute between the actual parties before the Court about their

own interests, in which they appear as representing themselves

and not some other entity or interest.

35. Id. at 343 (“The Respondent’s contention runs counter to the natural and ordinary

meaning of the provisions of Article 7 of the Mandate, which mentions ‘any dispute whatever’

arising between the Mandatory and another Member of the League of Nations ‘relating to the

interpretation or the application of the provisions of the Mandate.’ The language used is broad,

clear and precise: it gives rise to no ambiguity and it permits of no exception. It refers to any

dispute whatever relating not to any one particular provision or provisions, but to ‘the provisions’

of the Mandate, obviously meaning all or any provisions, whether they relate to substantive

obligations of the Mandatory toward the inhabitants of the Territory or toward the other

Members of the League or to its obligation to submit to supervision by the League under Article 6

or to protection under Article 7 itself. For the manifest scope and purport of the provisions of this

Article indicate that the Members of the League were understood to have a legal right or interest

in the observance by the Mandatory of its obligations both toward the inhabitants of the

Mandated Territory, and toward the League of Nations and its Members.”).

36. Id. at 347.

37. Id. at 550–54 (Spender & Fitzmaurice, JJ., dissenting).

38. Id. at 549–50, 558–59.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 475

The majority’s conclusion in the 1962 South West Africa case—that

Ethiopia and Liberia had standing—was essentially reversed at the

mer-

its

stage.

This time, the vote was split six to six and the judgment was

only decided by Judge (now President) Spender’s casting vote.

The

majority in the 1966 judgment followed a line of reasoning that closely

reﬂected the approach adopted by Judge Spender and Fitzmaurice in

their joint dissent in 1962:

[T]he question which has to be decided is whether, according

to the scheme of the mandates and of the mandates system as a

whole, any legal right or interest (which is a different thing

from a political interest) was vested in the members of the

League of Nations, including the present Applicants,

individu-

ally

and each in its own separate right to call for the carrying

out of the mandates as regards their “conduct” clauses; — or

whether this function must, rather, be regarded as having

appertained exclusively to the League itself, and not to each

and every member State, separately and independently.

In order

to determine what the rights and obligations of the

Parties relative to the Mandate were and are . . . the Court must

place

itself at the point in time when the mandates system was

being instituted, and when the instruments of mandate were

being framed. The Court must have regard to the situation as it

was at that time, which was the critical one, and to the

inten-

tions

of those concerned as they appear to have existed, or are

reasonably to be inferred, in the light of that situation.

The majority in the 1966 judgment observed that the context in

which the Mandate was established suggested that its performance

under the conduct clauses was a matter for the League Council and not

for the Permanent Court.

The wording of Article 7 of the Mandate

was not express enough to change this position, and therefore standing

was only conferred upon states to challenge breaches of the special-

39. See 1966 South West Africa case, supra note 3.

40. Id. ¶ 100.

41. Id. ¶ 14, 16.

42. Id. ¶ 34 (“[U]nder the mandates system, and within the general framework of the League

system, the various mandatories were responsible for their conduct of the mandates solely to the

League [and later, the United Nations]—in particular to its Council—and were not additionally

and separately responsible to each and every individual State member of the League.”).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

476 [Vol. 52

interest clauses.

In consequence, if standing were to be construed in

favor of Ethiopia and Liberia over the conduct clauses, it would amount

to actio popularis (i.e. a class action)—a doctrine that, in the opinion of

the majority, did not exist in international law at the time.

The 1966 South West Africa judgment was heavily criticized. First, it

was thought that the issue of standing ought to have been settled in

1962, and because of the ICJ’s approach, it did not ultimately make a

judgment as to the merits of the case despite it being in the merits

stage.

The majority sought to justify reviving the debate by making a

distinction between a state’s standing to bring a case to court (which

the majority in the 1966 judgment argued was the subject of contention

in the 1962 judgment) and its standing to the relief sought (which was

the issue in the 1966 judgment).

This distinction was widely thought

to be unconvincing.

Second, the reference to actio popularis was

viewed as unnecessary, if not unwarranted. It was unnecessary because

the issue was resolved by way of treaty interpretation and so there was

no need to ascertain the concept of actio popularis.

It was unwarranted

because the practice of creating a general legal interest for states parties

to an international agreement to invoke responsibility in the event of

another’s breach clearly did exist at that time.

In fact, Judge Jessup

was correct when he remarked in his separate opinion in the 1962 South

West Africa case that “[f]or over a century, treaties have speciﬁcally

rec-

ognized

the legal interests of States in general humanitarian causes and

have frequently provided procedural means by which States could

43. Id. ¶ 63. In arriving at this conclusion, the ICJ compared the mandate with the Minorities

Treaties. The latter expressly conferred legal standing upon members of the Council to bring a

case before the PCIJ, while the wording of the former is more obscure.

44. 1966 South West Africa case, supra note 3, ¶ 88.

45. See 1962 South West Africa case (Preliminary Objections), supra note 3, at 328; see also Falk, supra

note 29, at 6.

46. 1966 South West Africa case, supra note 3, ¶ 15; F

ARID AHMADOV, THE RIGHT OF ACTIO

POPULARIS BEFORE INTERNATIONAL COURTS AND TRIBUNALS 90 (2018).

47. See, e.g., Falk, supra note 29, at 10. Note, however, that later development on this aspect of

the law seems to suggest that the distinction was not entirely wrong. In short, as the law

developed, it became clear that there is a difference between a situation where a State is injured

by an internationally wrongful act and is thereupon entitled to a claim for reparations, and one

where a State is not directly injured but is nevertheless entitled to sue in order to compel the

wrongdoer to comply with an international law norm. See infra Section IV (describing Article 48 of

the ARSIWA and its subsequent development).

48. T

AMS, supra note 7, at 68.

49. Id.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 477

secure respect for these interests.”

To name a few examples, the

Minorities Treaties expressly provide for the legal standing of all Allied

Powers and members of the Council of the League of Nations to bring

a case before the Permanent Council of International Justice (“PCIJ”)

when there is a “difference in opinion as to questions of law or fact aris-

ing out of [any of the provisions contained therein].”

The Genocide

Convention provides that

Disputes between the Contracting Parties relating to the

inter-

pretation,

application or fulﬁlment of the present Convention,

including those relating to the responsibility of a State for

gen-

ocide

or for any of the other acts enumerated in article III, shall

be submitted to the International Court of Justice at the

request of any of the parties to the dispute.

The obligations that the Convention requires states to “fulﬁl” include

the prohibition and criminalization of genocide within their respective

territories.

Other examples are the provisions of the Constitution of

the International Labour Organisation (“ILO”). Article 26 of the ILO

Constitution provides that “[a]ny of the Members shall have the right

to ﬁle a complaint with the International Labour Ofﬁce if it is not

satis-

ﬁed

that any other Member is securing the effective observance of any

Convention which both have ratiﬁed in accordance with the foregoing

articles.”

Articles 27 and 28 further provide for a commission of

50. 1962 South West Africa case (Preliminary Objections), supra note 3, at 425 (separate opinion of

Jessup, J.); another example of a treaty providing for third-party standing irrespective of any

direct material injury can be found in the Peace Treaty of Versailles to the Kiel Canal. In the case

S.S. Wimbledon Judgement of August 17, 1923 (Series A, No. 1), the PCIJ observed that “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. They are

therefore, even though they may be unable to adduce a prejudice to any pecuniary interest,

covered by the terms of Article 386, paragraph I of which is as follows: ‘In the event of violation of

any of the conditions of Articles 380 to 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.’” S.S. Wimbledon (U.K., Fr., It., & Japan v. Ger.), Judgment, 1923 P.C.I.J. (ser. A) No. 1

(Aug. 17).

51. See, e.g., Minorities Treaty Between the Principal Allied and Associated Powers (the British

Empire, France, Italy, Japan and the United States) and Poland art. 12, June 28, 1919, 225 C.T.S.

412.

52. Convention on the Prevention and Punishment of the Crime of Genocide art. IX, Dec. 9,

1948, 78 U.N.T.S. 277 (emphasis added).

53. Id. art. I.

54. Constitution of the International Labour Organization art. 26, Oct. 9, 1946, 15 U.N.T.S.

35.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

478 [Vol. 52

inquiry to be established where necessary to ﬁnd facts and make recom-

mendations.

Articles 29 and 31 provide that should the governments

“concerned in the complaint” be unable to accept the recommenda-

tions made, the matter may be referred to the ICJ and the latter’s deci-

sion would be ﬁnal.

The Constitution of the ILO thus envisages the

legal standing of any of its members to invoke the responsibility of

another in relation to the observance of the ILO Convention before

the ICJ. Furthermore, in the 1961 case Austria v. Italy before the

European Commission of Human Rights (“the Commission”), the

Commission explained, in relation to the European Convention on

Human Rights, that as:

Article 24 provides that “any High Contracting Party may refer

the Commission, through the Secretary-General of the

Council of Europe, any alleged breach of the provisions of the

Convention by another High Contracting Party” . . . the High

Contracting

Parties have empowered any one of their number to bring

before the Commission any alleged breach of the Convention, regardless

of whether the victims of the alleged breach are nationals of the

appli-

cant

State or whether the alleged breach otherwise particularly affects

the interests of the applicant State.

None of the examples above required that a state have a “direct mate-

rial

interest” in the subject matter of the dispute.

See 1962 South West Africa Case (Preliminary Objections), supra note 3, at 432 (Jessup, J.,

separate opinion). Owing to the above failures, it was observed that the 1966 judgment was “a

decision that severely damaged the reputation of the ICJ for many years.” See Christof Heyns &

Magnus Killander, South West Africa/Namibia (Advisory Opinions and Judgments), https://opil.

ouplaw.com

/view/10.1093/law:epil/9780199231690/law-9780199231690-e209 (last visited Jul.

20,

2020).

As Sir Hersh

Lauterpacht explained in his non-judicial capacity:

55. Id. arts. 27, 28.

56. Id. arts. 29, 31.

57. Austria v. Italy, App. No. 788/60, 1961 Y.B. Eur. Conv. on H.R. 4, 19–20 (Eur. Comm’n on

H.R.); see also Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B), ¶ 239 (1976). Since the

adoption of Protocol 11 of the European Convention on Human Rights in 1998, the current

article 33 of the European Convention on Human Rights has provided that “[a]ny High

Contracting Party may refer to the Court [i.e. the European Court of Human Rights] any alleged

breach of the provisions of the Convention and the Protocols thereto by another High

Contracting Party.” Convention for the Protection of Human Rights and Fundamental Freedoms

art. 33, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 [hereinafter ECHR] (emphasis added).

58.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 479

States conclude multilateral treaties not only in order to secure

for themselves concrete mutual advantages in the form of a tan-

gible give and take, but also in order to protect general

inter-

ests

of an economic, political or humanitarian nature, by

means of obligations the uniformity and general observance of

which are of the essence of the agreement. The

interdepend-

ence

of international relations frequently results in States hav-

ing

a vital interest in the maintenance of certain rules and

principles, although a modiﬁcation or breach of these

princi-

ples

in any particular single case is not likely to affect adversely

some of them at all or at least not in the same degree.

Thus, the quotation on actio popularis taken from the ICJ’s 1966 judg-

ment

is frequently misconstrued.

At the very most, the majority in the

1966 judgment simply stated that the concept of actio popularis did not

exist in general international law at that time. It did not determine

whether a treaty may provide for situations where non-injured states

parties can have standing to lodge a claim. On the contrary, the

obser-

vation

of the ICJ that Article 7 of the Mandate was not explicit enough

to suggest universal standing in the event of a breach seems to imply

that this standing may in fact be expressly provided for.

III. B

ARCELONA TRACTION—WHAT HAS REALLY CHANGED?

Four years after the controversial 1966 South West Africa judgment,

the

ICJ appeared to have reversed course again on the question of legal

standing. In Barcelona Traction, the issue before the ICJ was whether

Belgium might bring a claim to the ICJ against Spain on behalf of

Belgian shareholders of a Canadian corporation whose business was

declared bankrupt by a Spanish court.

In its now-famous dictum, the

ICJ remarked:

59. Hersch Lauterpacht, The Chinn Case, 16 BRITISH Y.B. INT’L L. 164–66 (1935) (by reference

to interests of an economic and political nature, Lauterpacht was likely alluding to the treaties

providing for the creation of objective regimes); see, e.g., Convention Concerning the Memel

Territory art. 17, signed at Paris, May 8, 1924, U.N. Doc. A/AC.25/Com.Jer/W.13. The clause was

discussed in Interpretation of Statute of Memel Territory (U.K., Fr., It. & Japan v. Lith.),

Preliminary Objection, 1932 P.C.I.J. (ser. A/B) No. 47, at 251 (June 24).

60. See, e.g., Belgium v. Senegal, supra note 13, (Xue, J., dissenting ¶ 13); id. (Sur, J., dissenting ¶

29).

61. For a commentary on the case, see Richard B. Lillich, Two Perspectives on the Barcelona

Traction Case, 65 A

M. J. INT’L L. 522 (1971).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

480 [Vol. 52

[A]n essential distinction should be drawn between the obliga-

tions

of a state towards the international community as a whole,

and those arising

vis-a`-vis another State in the ﬁeld of diplo-

matic

protection. By their very nature the former are the con-

cern

of all States. In view of the importance of the rights

involved, all States can be held to have a legal interest in their

protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary

interna-

tional

law, from the outlawing of acts of aggression, and of gen-

ocide,

as also from the principles and rules concerning the

basic rights of the human person, including protection from

slavery and racial discrimination. Some of the corresponding

rights of protection have entered into the body of general

international law (Reservations to the Convention on the Prevention

and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.

Reports 1951, p. 23); others are conferred by international

instruments of a universal or quasi-universal character.

The concept of obligations erga omnes was reafﬁrmed in subsequent

judgments,

and is now generally regarded as creating, in and of itself,

a category of international obligations. However, as is well known to

international lawyers, the view expressed in the above quotation was

not received without criticism. In fact, much of the scepticism over the

above dictum came from other members of the ICJ, voiced on various

occasions.

The main objection was that the facts of the case did not

justify such a far-reaching proclamation.

In consequence, it was not

known whether the ICJ was merely describing the distinctive qualities

62. Barcelona Traction, supra note 5, ¶ 33–34.

63. See, e.g., Legal Consequences of Separation of Chagos Archipelago from Mauritius in 1965,

Advisory Opinion, 2019 I.C.J. 95, ¶ 180 (Feb. 25); see also Legal Consequences of Construction of

a Wall in Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 157 (July 9) (“In

the Court’s view, these rules [of humanitarian law applicable in armed conﬂict] incorporate

obligations which are essentially of an erga omnes character.”).

64. See, e.g., Nuclear Tests Case (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, at 387 (Dec. 20),

(de Castro, J., dissenting) (“I am unable to believe that by virtue of this dictum the Court would

regard as admissible, for example, a claim by State A against State B that B was not applying

‘principles and rules concerning the basic rights of the human person’ . . . with regard to the

subjects of State B or even State C.”); see also Belgium v. Senegal, supra note 13.

65. See McCaffrey, supra note 7, at 243; Gleider Herna´ndez, International Court of Justice and the

Concept of “International Community”, 83 B

RITISH Y.B. INT’L L. 13, at 32 (2013).

ON OBLIGATIONS ERGA OMNES PARTES

2021] 481

of various types of international obligations and/or whether it intended

that the disparate types of obligations should entail different legal con-

sequences (such as that pertaining to legal standing).

On closer examination, the real problem with the ICJ’s pronounce-

ment

lies with the examples given. In short, the ICJ found that certain

obligations are so important that all states must be considered to have

an interest in the compliance of others, and correctly identiﬁed the

obligation to refrain from acts of aggression as one of these

obliga-

tions.

Yet, it is questionable whether human rights obligations can be

construed in the same manner. In fact, the obligation to refrain from

acts of aggression is so important that its breach arguably threatens the

security of every other state, collectively and individually. Thus, the

sig-

niﬁcance

of an obligation to every other state—collectively and individ-

ually—

would itself probably justify standing on the part of any state to

ensure compliance with the relevant obligation. The self-interest

involved would also suggest that these are not pure cases of actio

popu-

laris

(i.e., they do not represent instances of states intervening solely in

vindication of a public interest), as opposed to attempts to enforce

human rights obligations. As for the human rights-related examples

noted by the ICJ, including obligations to outlaw acts of genocide and

to protect people from slavery and racial discrimination, it is rather

dif-

ﬁcult

to imagine why a breach would necessarily have affected all other

states sufﬁciently as to justify a legal interest in ensuring compliance;

af-

ter

all, the express rights holders of human rights obligations are indi-

viduals

and not third-party states.

The suggestion that states have a legal interest in ensuring compli-

ance

with human rights obligations thus requires us to adopt a particu-

lar

perspective. It requires us to set aside the traditional conception of

states as self-interested sovereign actors

and to imagine them as

66. Further, the ICJ had not clearly articulated the theoretical basis from which obligations

erga omnes derive their erga omnes character, whether it is because (i) these obligations, by their

nature, cannot be viewed as bilateral (unlike a case of diplomatic protection), (ii) they are so

important that States must be considered to have an interest in ensuring compliance, or

(iii) both.

67. See Barcelona Traction, supra note 5, ¶ 33–34.

68. See, e.g., Application of Convention on Prevention and Punishment of Crime of Genocide

(Bosn. & Herz. v. Serb. & Montenegro), Judgment, 1996 I.C.J. 595, 626, ¶ 4 (July 11) [hereinafter

Bosnian Genocide] (declaration of Oda, J.).

69. See Dino Kritsiotis, Imagining the International Community, 13 E

UR. J. INT’L L. 961, 967 (2002)

(explaining the process through which States have reached the stage “of determining

whether [the international community] knows of values other than the sovereign identities of its

individual members [states]”); Samantha Besson, Community Interests in International Law: Whose

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

482 [Vol. 52

entities having a collective duty to safeguard the welfare of humanity as

a whole.

Only from this viewpoint can obligations pertaining to

human rights be understood to satisfy the ICJ’s observation that they

are so important that all states must be held to have an interest in their

fulﬁlment. This idea of states mutually pledging to protect human

rights was not a mere assertion, but was supported by states’ practice in

concluding human rights treaties.

The Genocide Convention is one

of the most -cited examples of a convention that was, according to the

Genocide Convention Advisory Opinion, “manifestly adopted for a purely

humanitarian and civilizing purpose.”

In such a convention the contracting States do not have any in-

terest

of their own; they merely have, one and all, a common in-

terest,

namely the accomplishment of those high purposes

which are the raison d’etre of the convention. Consequently, in a

convention of this type one cannot speak of individual

advan-

tages

or disadvantages of States, or of the maintenance of a per-

fect

contractual balance between rights and duties.

The adoption of human rights treaties, and the design that was incor-

porated

into the drafting of these treaties, in turn, evidently inﬂuenced

the development of the law of treaties, as is reﬂected in the 1970

Vienna Convention on the Law of Treaties (“VCLT”) (adopted a few

months before the Barcelona Traction judgment), which incorporates

Interests Are They and How Should We Best Identify Them, in COMMUNITY INTERESTS ACROSS

INTERNATIONAL LAW 36, 37 (Eval Benvenisti & George Nolte eds., 2018).

70. See Criddle, supra note 7.

71. Prior to 1970, these conventions included, e.g., the 1926 Slavery Convention; the 1949

Convention for the Suppression of the Trafﬁc in Persons and of the Exploitation of the

Prostitution of Others; the 1951 Refugee Convention; the 1952 Convention on Political Rights of

Women; the 1954 Convention on the Status of Stateless Persons; and the 1961 Convention on the

Reduction of Statelessness. T

AMS, supra note 7, at 75.

72. Reservations to Convention on Prevention and Punishment of Crime of Genocide,

Advisory Opinion, 1951 I.C.J. Rep. 15, 23 (May 28).

73. Id.; see also The Effect of Reservations on the Entry Into Force of the American Convention

on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, Inter-Am. Ct. H.R. (ser. A) No.

2, ¶ 29 (Sept. 24, 1982) (“The Court must emphasize, however, that modern human rights

treaties in general, and the American Convention in particular, are not multilateral treaties of the

traditional type concluded to accomplish the reciprocal exchange of rights for the mutual beneﬁt

of the contracting States. Their object and purpose is the protection of the basic rights of

individual human beings irrespective of their nationality, both against the State of their

nationality and all other contracting States.”).

ON OBLIGATIONS ERGA OMNES PARTES

2021] 483

speciﬁc provisions that govern treaties of a “humanitarian character.”

As Professor Mariko Kawano observes, because the concepts of erga

omnes and of pre-emptory norms were not well established during the

earlier stages of the development of international law, the role of trea-

ties in protecting fundamental humanitarian interests became very

important.

To conclude, the real bone of contention regarding the signiﬁcance

of the ICJ’s dictum in Barcelona Traction is not the (essentially objective)

observation that there may be some international obligations

signiﬁ-

cant

enough to justify universal standing, but the view on a state’s role

with respect to human rights. This development in international law in

general, and human rights law in particular, was later characterized as a

part of states’ broader duty to safeguard “community interests”

“community values”

—one that recognizes the “limits of the principles

74. Vienna Convention on the Law of Treaties art. 60(5), May 23, 1969, 1155 U.N.T.S. 331

[hereinafter VCLT].

75. Mariko Kawano, Standing of a State in the Contentious Proceedings of the ICJ, 55 J

APANESE Y.B.

NT’L L. 208, 215–16 (2012).

76. For instance, writing in 1994, Judge Simma observed that “[a] rising awareness of the

common interests of the international community, a community that comprises not only States,

but in the last instance all human beings, has begun to change the nature of international law

profoundly.” Bruno Simma, From Bilateralism to Community Interest in International Law, 250

ECUEIL DES COURS 217, 234 (1994) (“International law has undoubtedly entered a stage at which

it does not exhaust itself in correlative rights and obligations running between states, but also

incorporates common interests of the international community as a whole, including not only

states but all human beings. In so doing, it begins to display more and more features which do not

ﬁt into the . . . bilateralist structure of the traditional law.”); see also Bruno Simma, Universality of

International Law from the Perspective of a Practitioner, 20 E

UR. J. INT’L L. 265, 297 (2009); see also

Santiago Villalpando, The Legal Dimension of the International Community: How Community Interests

are Protected in International Law, 21 E

UR. J. INT’L L. 387 (2010). The potential applications of

obligations erga omnes in international environmental law in protecting community interests were

raised by Judge Weeramantry in Gabcˇı´kovo-Nagymaros Project (Hung. v. Slvk.), Judgment, 1997

I.C.J. Rep. 7 (Sep. 25) (separate opinion by Weeramantry, J.).

77. Judicial endorsement of “community values” could be seen in Austria v. Italy, App. No.

788/60, 1961 Y.B. Eur. Conv. on H.R. 4, 19–20 (Eur. Comm’n on H.R.) 18, where the European

Commission on Human Rights remarked that “the purpose of the high Contracting Parties in

concluding the [European] Convention was not to concede to each other reciprocal rights and

obligations in pursuance of their individual national interests but to . . . establish a common

public order of the free democracies of Europe with the object of safeguarding their common

heritage of political traditions, ideals, freedom and the rule of law”; Study Group of the Int’l Law

Comm’n, Fragmentation of International Law: Difﬁculties Arising from the Diversiﬁcation and Expansion

of International Law, ¶ 393, U.N. Doc. A/CN.4/L.682 (2006); Sandesh Sivakumaran, Impact on the

Structure of International Obligations, in T

HE IMPACT OF HUMAN RIGHTS LAW ON GENERAL

INTERNATIONAL LAW 133, 146 (Menno Kamminga & Martin Scheinin eds., 2009) (describing

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

484 [Vol. 52

of reciprocity”

that so deeply inﬂuenced (and constrained) the way

international legal relationships are constructed.

IV. T

HE ARSIWA: TWO TYPES OF LEGAL STANDING

The conditions from which standing may be derived to invoke

responsibility before an international court were further examined

by the ILC in a series of reports that later became the Articles on

the Responsibility of States for Internationally Wrongful Acts

(“ARSIWA”).

The relevant provisions are Articles 42 and 48.

Article 42 of the ARSIWA, entitled “Invocation of responsibility by

an injured State,” provide that:

A State is entitled as an injured State to invoke the

responsibil-

ity

of another State if the obligation breached is owed to:

(a)

that State individually; or

(b) a group of States including that State, or the international

community

as a whole, and the breach of the obligation:

(i) specially affects that State; or

(ii) is of such a character as radically to change the position of

all the other States to which the obligation is owed with respect

to the further performance of the obligation.

While the article does not expressly use the words “legal standing,” it

is observed in the Commentary that a right to invoke responsibility

includes the right to institute proceedings before an international

court.

notions such as jus cogens as representing a minimum threshold for community values in

international law).

78. Yoshifumi Tanaka, Protection of Community Interests in International Law: The Case of the Law of

the Sea, 15 M

AX PLANCK Y.B. U.N. L. ONLINE 15 (2011).

79. Responsibility of States for Internationally Wrongful Acts, in Report of the International Law

Commission on the Work of Its Fifty-third Session, [2001) 2 Y.B. Int’l L. Comm’n 1, U.N. Doc. A/CN.4/

SER.A/2001/Add.1 (Part 2), 43 [hereinafter ARSIWA].

80. Id. art. 42.

81. See Commentary to Article 42, ¶ (2), in Int’l Law Comm’n, Rep. on the Work of its Fifty-Third

Session (“Invocation should be understood as taking measures of a relatively formal character, for

example, the raising or presentation of a claim against another State or the commencement of

proceedings before an international court or tribunal.”), cited in J

AMES CRAWFORD,

HE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT

ON OBLIGATIONS ERGA OMNES PARTES

2021] 485

Article 42 of the ARSIWA, in deﬁning the idea of an injured state,

focuses on obligations that, if breached, would have a direct/speciﬁc

impact on a state (Articles 42(a) and 42(b)(i)) or the breach of which

would radically change the position of all other states with respect to

future performance (Article 42(b)(ii)). The type of obligation

described in Article 42(b)(ii) is often referred to as an “integral obliga-

tion,”

envisaged under Article 60(c) of the VCLT.

The obligations

contained in disarmament agreements are typical examples of “integral

obligations.”

While a breach of an obligation contained in a disarma-

ment

agreement cannot be said to speciﬁcally affect a particular state,

“they are nonetheless dominated by a sort of global reciprocity in the

sense that each state disarms because the others do likewise.”

This

type of “global reciprocity” is generally lacking in human rights treaties,

in the sense that one state violating its human rights obligations does

not change the position of other states parties in fulﬁlling theirs.

The more relevant provision to human rights law is Article 48 of the

ARSIWA. Entitled “Invocation of responsibility by a State other than an

injured State,” it provides that:

1. Any State other than an injured State is entitled to invoke

the

responsibility of another State in accordance with

para-

graph

2 if:

(a) the obligation breached is owed to a group of States

includ-

ing

that State, and is established for the protection of a collec-

tive

interest of the group; or

(b) the obligation breached is owed to the international

com-

munity

as a whole.

AND COMMENTARIES 57–61 (2002); Annie Bird, Third State Responsibility for Human Rights Violations,

21 E

UR. J. INT’L L. 883, 891 (2010) (“[T]he distinction between legal interests to invoke

responsibility and standing to institute ICJ proceedings has not usually been drawn in practice;

the latter was considered to be a consequence of the former.”). Note also that by utilizing the

distinction between an “injured state” and situations involving a party “other than an injured

state,” Articles 42 and 48 intended to provide exhaustively for situations that might give rise to a

right to invoke the responsibility of another.

82. VCLT, supra note 74, art. 60(c).

83. Linos-Alexander Sicilianos, The Classiﬁcation of Obligations and the Multilateral Dimension of

the Relations of International Responsibility, 13 E

UR. J. INT’L L. 1127, 1135 (2002).

84. Id.

85. Id.

86. ARSIWA, supra note 79 art. 48(1)(a).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

486 [Vol. 52

Article 48(1)(a) is intended to address situations when obligations

are created to protect the collective interest of a group of states.

describes the relationship that is often incorporated into multilateral

treaties concerning the collective security of a group or region, the

environment, or human rights.

Such obligations were established

with the intention of “transcending the ‘sphere of the bilateral relations

of the States parties,’”

thus creating obligations that are “genuinely

multilateral.”

Consequently, every state party has an interest in the

compliance of others. Meanwhile, Article 48(1)(b) was created to

address obligations erga omnes outside of treaty law, resonant with the

type of obligation described in the dictum of Barcelona Traction,

whereby “all States can be held to have a legal interest in [its]

protec-

tion.”

Furthermore, Article 48(1)(b) may be read together with

Articles 40 and 41 of the ARSIWA; the latter provide for situations

where there are serious breaches of obligations under the

pre-

emptory/

jus cogens norms of general international law.

They suggest

that, where there is a gross or systematic failure by any responsible state

to fulﬁl obligations prescribed for under jus cogens norms, states have

an additional duty to cooperate with each other to bring such breaches

to an end through lawful means.

The thinking behind the very wording of Articles 42 and 48 is that

there should not be a need to determine the nature (moral or

mate-

rial)

or the extent of damages or harm suffered before a state can

invoke responsibility.

Rather, standing depends solely on whether an

obligation in breach is owed to the claimant state.

This approach was

inspired by the second Special Rapporteur Roberto Ago (and survived

Professor James Crawford, the ﬁfth and last Special Rapporteur on the

subject), and was meant to ensure that “every internationally wrongful

act of a State entails the international responsibility of that State.”

87. Id.

88. See Commentary to Article 48, in Int’l Law Comm’n, Rep. on the Work of its Fifty-Third Session,

cited in C

RAWFORD, supra note 81.

89. Sicilianos, supra note 83, at 1135.

90. J

AMES CRAWFORD, BROWNLIE’S PRINCIPLE OF PUBLIC INTERNATIONAL LAW 21 (8th ed. 2012).

91. Schwelb, supra note 6.

92. ARSIWA, supra note 79, arts. 40 and 41.

93. Id. art. 41(1).

94. Id.

95. Id.

96. Alain Pellet, The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and

Related Texts, in T

HE LAW OF INTERNATIONAL RESPONSIBILITY 75, 77 (James Crawford, Alain Pellet,

Simon Olleson & Kate Parlett eds., 2010). As Articles 1 and 2 of the ARSIWA provided, “[e]very

internationally wrongful act of a State entails the international responsibility of that State” and

ON OBLIGATIONS ERGA OMNES PARTES

2021] 487

practice, these Articles established two types of legal standing: (i) stand-

ing derived from injury (Article 42) and (ii) standing derived from

common interests (Article 48).

These two types of standing differ not

only in terms of the circumstances giving rise to them, but also in terms

of the claim that a state is entitled to raise. According to Article 48(2) of

the ARSIWA:

2. Any State entitled to invoke responsibility under paragraph 1

may claim from the responsible State:

(a) cessation of the internationally wrongful act, and

assuran-

ces

and guarantees of non-repetition in accordance with article

30; and

(b) performance of the obligation of reparation in accordance

with

the preceding articles, in the interest of the injured State

or of the beneﬁciaries of the obligation breached.

In other words, a non-injured state may not claim reparation for

itself; the legal interest involved for non-injured states under Article 48

is strictly limited to seeing the violated obligations enforced. This

posi-

tion,

again, echoes the dictum in Barcelona Traction,

and is, in fact,

consistent with the view taken by a series of PCIJ decisions affording

legal standing to treaty parties not on the basis of having suffered a

ma-

terial

injury, but merely because they have an interest in ensuring that

compliance with treaty obligations.

100

The International Criminal

Tribunal for the former Yugoslavia (“ICTY”), in Prosecutor v. Anto

Furundzija, explained that a breach of an obligation erga omnes “gives

“[t]here is an internationally wrongful act of a State when conduct consisting of an action or

omission . . . constitutes a breach of an international obligation of the State.” This position can in

turn be traced to the Chorzów Factory case, where it was determined that every breach of

international law “involves an obligation to make reparation.” See Factory at Chorzów (Claim for

Indemnity) (Jurisdiction) (Ger. v. Pol.), Judgment, 1927 P.C.I.J. (ser. A) No. 9, at 21 (July 26).

97. Annemarieke Vermeer-Ku

nzli, Invocation of Responsibility, in P

RINCIPLES OF SHARED

RESPONSIBILITY IN INTERNATIONAL LAW: AN APPRAISAL OF THE STATE OF THE ART 251, 257 (Andre´

Nollkaemper & Ilias Plakokefalos eds., 2014).

98. ARSIWA, supra note 79, art. 48(2).

99. Barcelona Traction, supra note 5, ¶ 33–34 (i.e., that these concern rights and obligations in

whose protection States have a “legal interest”).

100. S.S. Wimbledon, supra note 50; see, e.g., Interpretation of Statute of Memel Territory

(Preliminary Objection) (U.K., Fr., It. & Japan v. Lith.), Judgment, 1932 P.C.I.J. (ser. A/B) No. 47

(June 24); Interpretation of Statute of Memel Territory (U.K., Fr., It. & Japan v. Lith.), Judgment,

1932 P.C.I.J. (ser. A/B) No. 49 (Aug. 11).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

488 [Vol. 52

rise to a claim for compliance accruing to each and every member,

which then has the right to insist on fulﬁlment of the obligation or in any case

to call for the breach to be discontinued” (emphasis added).

101

Prosecutor v. Furundzˇija, Case No. IT-95-17/1-T, Judgment, ¶ 151 (Int’l Crim. Trib. for

the Former Yugoslavia Dec. 10, 1998), https://www.icty.org/x/cases/furundzija/tjug/en/fur-

tj981210e.pd

Similar obser-

vations have been made by the European Commission of Human

Rights.

102

The merit in ARSIWA’s approach is that it avoids the difﬁculty (and

uncertainty) of having to determine the extent of the injury that a state

must have suffered in order to acquire legal standing (which is

invaria-

bly

a matter of degree). It was further observed that the ILC’s

approach:

has brought about an objective understanding, pursuant to

which

a State incurs responsibility whenever it fails to comply

with its international obligations, irrespective of factors such as

damage or fault, thus freeing the law of responsibility from

fruitless doctrinal controversies about the deﬁnition of damage

and fault, and the restrictive focus on the reparation of mate-

rial

wrongs.

103

Support for the focus on obligations (not “interests,” “injury,” or

“damage”) can be found in the 1949 Reparations case, where the ICJ

remarked that “only the party to whom an international obligation is

due can bring a claim in respect of its breach.”

104

Another perceivable

merit is that, by distinguishing the two types of standing and the

limita-

tions

as to what a state may claim when invoking standing on the basis

of common interests, the ARSIWA clariﬁes that the right of a state with

a common interest in compliance with obligations is not foreclosed by

the right of the injured state (if any). In other words, where there is an

injured state, the non-injured state’s right to invoke responsibility

can-

not

be waived by the injured state.

105

As Article 48(1) expresses in

101.

102. See Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) ¶ 239 (1976).

103. T

AMS, supra note 7, at 13.

104. Reparation for Injuries Suffered in Service of United Nations, Advisory Opinion, 1949 I.

C.J. 174, 181–82 (Apr. 11). Note that the Statute of the ICJ does not specify conditions for

standing.

105. For instance, in the case S.S. Wimbledon, the French Company (France) suffered a

pecuniary loss as a result of Germany’s refusal of passage and therefore sought reparations. That

did not preclude Japan’s standing to seek a declaration of illegality. See S.S. Wimbledon, supra

note 50. Judge Weermantry opined that when considering erga omnes obligations, one must look

ON OBLIGATIONS ERGA OMNES PARTES

2021] 489

unqualiﬁed terms, “[a]ny State other than an injured State is entitled to

invoke the responsibility of another State in accordance with paragraph

2” (emphasis added).

106

This would prove very important for enforcing

human rights and humanitarian treaties, particularly in cases involving

refugees and/or stateless populations crossing from one state to

another.

107

Moreover, as non-injured states are only entitled to demand

the cessation of the wrongful act, a claim is unlikely to be admissible if

the wrongful act has been discontinued by the time the case appears

before an international court. This narrows the effect of the standing

invoked on the basis of common legal interests, and thus helps alleviate

the worry that acknowledging the concept of obligations erga omnes

and/or erga omnes partes will lead to abusive litigation by states driven by

political concerns.

108

The extensive discussions that the ILC study provoked on the topic

have clearly inﬂuenced judicial thinking. In its 1997 judgment, the

ICTY in Prosecutor v. Blaskic,

109

Prosecutor v. Blasˇkic´, Case No. IT-95-14/14-T, Judgement on the Request of the Republic

of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (Int’l Crim. Trib. for the

Former Yugoslavia Oct. 29, 1997), https://www.icty.org/x/cases/blaskic/acdec/en/71029JT3.

html.

while expressly referring to the ILC’s

efforts described above and the ICJ’s dictum in Barcelona Traction,

110

remarked that Article 29 of the Statute of the ICTY

111

amounts to an

obligation erga omnes partes:

beyond inter partes rules, procedures, and remedy, because fairness as between parties may not be

sufﬁcient to do justice to rights and obligations of an erga omnes character. Gabcˇı´kovo-Nagymaros

Project (Hung./Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sep. 25) (separate opinion by

Weeramantry, J.).

106. ARSIWA, supra note 79, art. 48(1).

107. For example, if a stateless population from State A ﬂed to State B as a result of gross

systematic oppression toward them in State A, the right of third States to demand State A’s

compliance with international human rights obligations should not be subject to State B’s

institution of proceedings against State A, even though State B could be said to be speciﬁcally

affected, nor should it be extinguished by State B’s waiver of its right to reparations. See

discussions on The Gambia v. Myanmar below. Similar concerns may arise in cases of human

trafﬁcking.

108. See Edith Brown Weiss, Invoking State Responsibility in the Twenty-First Century, 96 A

M. J. INT’L

L. 798, 805 (2002).

109.

110. Barcelona Traction, supra note 5, ¶ 33–34.

111. Statute of the International Tribunal for the Prosecution of Persons Responsible for

Serious Violations of International Humanitarian Law Committed in the Territory of the Former

Yugoslavia since 1991 art. 29, S.C. Res. 827 (May 25, 1993) (“Article 29 Co-operation and judicial

assistance 1. States shall co-operate with the International Tribunal in the investigation and

prosecution of persons accused of committing serious violations of international humanitarian

law. 2. States shall comply without undue delay with any request for assistance or an order issued

by a Trial Chamber, including, but not limited to: (a) the identiﬁcation and location of persons;

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

490 [Vol. 52

[I]t is self-evident that the International Tribunal, in order to

bring to trial persons living under the jurisdiction of sovereign

States, not being endowed with enforcement agents of its own,

must rely upon the cooperation of States. . . . This obligation is

laid down

in Article 29 . . . . Article 29 is an obligation which is

incumbent on

every Member State of the United Nations vis-à-

vis all other Member States. . . . The nature and content of this

obligation, as well

as the source from which it originates, make

it clear that Article 29 does not create bilateral relations. Article

29 imposes an obligation on Member States towards all other

Members or, in other words, an “obligation erga omnes partes.”

By the same token, Article 29 posits a community interest in its

observance. In other words, every Member State of the United

Nations has a legal interest in the fulﬁlment of the obligation

laid down in Article 29.

112

The approach to obligations erga omnes partes acknowledged in Blas

kic

was further endorsed in a series of decisions laid down by the

International Criminal Tribunal for Rwanda (“ICTR”).

113

See Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Decision on the Motion to Stay the

Proceedings in the Trial of Ferdinand Nahimana, ¶ 9 (June 5, 2003), https://jrad.irmct.org/

view.htm?r=216405&s=;

Prosecutor v. Nzabonimana, Case No. ICTR-98-44D-T, Decision on

Defence Motion

to Reconsider Prior Trial Chamber Decisions on France’s Cooperation with the

Tribunal, ¶ 29 (Mar. 4, 2010), http://www.worldcourts.com/ictr/eng/decisions/2010.03.

04_Prosecutor_v_Nza

bonimana.pdf.

The very idea

of erga omnes partes was also ardently championed by Judge

Canc¸ado

Trindade during his time as a judge at the Inter-American Court of

Human Rights.

114

(b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the

arrest or detention of persons; (e) the surrender or the transfer of the accused to the

International Tribunal.”).

112. Blasˇkic´, Case No. IT-95-14/14-T, Judgement on the Request of the Republic of Croatia for

Review of the Decision of Trial Chamber II of 18 July 1997, ¶ 26 (Int’l Crim. Trib. for the Former

Yugoslavia Oct. 29, 1997). See id. at 24 n.33 for the Tribunal’s references to the ILC’s work and

Barcelona Traction.

113.

114. See Las Palmeras v. Colombia, Preliminary Objections, Judgment, Inter-Am. Ct. H.R. (ser.

C) No. 67, ¶¶ 9–12 (Feb. 4, 2000) (separate opinion by Trindade, J.); Communities of the

Jiguamiandó and the Curbaradó Regarding Colombia, Provisional Measures, Order of the Court,

“Having Seen,” ¶¶ 4–6 (Inter-Am. Ct. H.R. Mar. 6, 2003) (concurring opinion by Trindade, J.),

http://www.corteidh.or.cr/docs/medidas/jiguamiando_se_01_ing.pdf; Juridical Condition and

Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No.

18, ¶¶ 66, 77, 79, 82–83 (Sept. 17, 2003) (concurring opinion by Trindade, J.); Pueblo Indı´gena

de Kankuamo Regarding Colombia, Provisional Measures, Order of the Court, “Having Seen,” ¶¶

2–3 (Inter-Am. Ct. H.R. July 5, 2004) (concurring opinion by Trindade, J.),

http://www.corteidh.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 491

or.cr/docs/medidas/kankuamo_se_01_ing.pdf; Communities of Jiguamiandó and Curbaradó

Regarding Colombia, Provisional Measures, Order of the Court, “Having Seen,” ¶ 8 (Inter-Am.

Ct. H.R. Feb. 7, 2006) (concurring opinion by Trindade, J.), http://www.corteidh.or.cr/docs/

medidas/

jiguamiando_se_04_ing.pdf.

115. T

AMS, supra note 7, at 70.

116. In addition to potentially providing for special rules in relation to standing, a treaty may

also provide for particular avenues/mechanisms for collective enforcement or restrict dispute

settlement to the procedures established by the treaty, thereby restricting the jurisdiction of the

ICJ. For instance, art. 33 of the ECHR (as amended by Protocols Nos. 11 and 14) provides for a

rather relaxed threshold for legal standing (i.e. concerning “any alleged breach of the

provisions”) for all State parties while restricting collective enforcement to the mechanisms

created by the Convention, i.e. the European Court of Human Rights. See ECHR, supra note 57.

The relevant provisions of the Constitution of the ILO provide that disputes as between States

must be resolved through the internal mechanisms of the ILO before they may be referred to the

ICJ. See Constitution of the ILO arts. 26–29, 31, Oct. 9, 1946, 62 Stat. 3485. The difference

between admissibility and jurisdiction is addressed below. See infra notes 149–152.

117. Jure Vidmar, Protecting the Community Interest in a State Centric Legal System: The UN Charter

and Certain Norms of ‘Special Standing’, in T

HE COMMON INTEREST IN INTERNATIONAL LAW 109, 113

(Wolfgang Benedek, Koen De Feyter, Matthias C. Kettemann & Christina Voigt eds., 2014).

118. Bearing in mind also that compromissory clauses primarily provide for jurisdiction and

not necessarily legal standing.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

492 [Vol. 52

Nevertheless, the rules as proposed in the ARSIWA do not deﬁnitively set-

tle

the question of standing for all treaties. This is because states are gener-

ally

free to establish rules lex specialis through the adoption of speciﬁcally

drafted treaty provisions, whether these tighten or relax the requirements

for legal standing.

115

In short, whether a treaty obligation could properly be

characterized as an obligation erga omnes partes, and whether parties

intended universal standing for all contracting parties before an

interna-

tional

court in the event of a breach, remains a matter of treaty interpreta-

tion.

116

The concept of obligation erga omnes partes merely postulates that the

violation of a treaty provision by one State Party alters the legal interests or

position of every other State Party to a treaty and “[t]o the extent that such a

treaty foresees international judicial settlement of disputes in the framework

of that treaty, the violation can . . . have a procedural remedy.”

117

As such, difﬁcult questions remain to be addressed. First, it is rela-

tively

clear that there are instances where a treaty expressly provides for

third-party standing in the event of breach (as the examples above

involving the ECHR, the Constitution of the ILO, and the Minorities

Treaties demonstrate); in these cases, third-party standing should

indeed be recognized. But what if the relevant provision of a treaty

(typ-

ically

the compromissory clause) is not so clear?

118

In other words, what

rules are to be applied in a situation where a compromissory clause is

ambiguous as to the enforcement mechanisms for third parties?

Second, do all human rights treaties provide for obligations erga omnes

partes, given that most, if not all, human rights treaties provide for some

obligations that are unable to be applied bilaterally or are “non-

synallagmatic”?

119

Moreover, are all substantive provisions within that

treaty obligations erga omnes partes? For instance, it has been argued that

since human rights treaties are not concluded on the basis of reciprocity,

they are a “series of unilateral engagements solemnly contracted before

the world as represented by the other Contracting Parties.”

120

If this char-

acterization is accurate, then prima facie all obligations pertaining to

human rights treaties are erga omnes partes in nature.

121

Yet, would it not be

strange for all states to have standing over any violation of human rights

treaty obligations, regardless of the signiﬁcance of the treaty provision and

the gravity of the breach?

122

If they do not, however, then how do we differ-

entiate between obligations that are erga omnes partes and those that are

not? As will be discussed in the next section, the ICJ case Belgium v. Senegal

provided some insight in relation to these questions.

V. T

HE RECEPTION OF OBLIGATIONS ERGA OMNES PARTES BY THE ICJ

The notion of obligations erga omnes partes was ﬁrst expressly

endorsed

by the ICJ in the case Belgium v. Senegal.

123

In this case, victims

119. See Comm. on the Elimination of Racial Discrimination, Inter-State Communication

Submitted by the State of Palestine Against Israel, ¶ 3.33, U.N. Doc. CERD/C/100/5 (Dec. 12,

2019) (“The Committee notes that the jurisprudence of the European and Inter-American

systems of protection of human rights, as well as the General Comment of the Human Rights

Committee, shows that the objective or non-synallagmatic nature of the substantive obligations

contained in the European and American Convention of Human Rights has as a result, that any

State party may trigger the collective enforcement machinery created by the respective treaty,

independently from the existence of correlative obligations between the concerned parties.”).

120. Jean S. Pictet, Commentary on First Geneva Convention: Convention (I) for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in the Field, in T

HE GENEVA CONVENTIONS OF 12

UGUST 1949 (1952).

121. See Human Rights Comm., General Comment No. 31: The Nature of the General Legal Obligation

Imposed on States Parties to the Covenant, ¶ 2, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004);

Erika De Wet, The International Constitutional Order, 55 I

NT’L & COMP. L.Q. 51, 55 (2006).

122. See Barcelona Traction, supra note 5, ¶ 91. The ICJ, in relation to the right to have access to

justice, observed that “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. 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 erga omnes. See Manfred Lachs, The Development

and General Trends of International Law in Our Time, 169 R

ECUEIL DES COURS 9 (1980); LOUIS

HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 58 (2d ed. 1979) (“The ordinary

violation of law or treaty is not yet a ‘crime’ against the society to be vindicated by the society.”).

123. Belgium v. Senegal, supra note 13; cf. M

ARTIN DAWIDOWICZ, THIRD-PARTY COUNTERMEASURES

INTERNATIONAL LAW 42–43 (2017) (observing that the admissibility of Australia in Whaling in

ON OBLIGATIONS ERGA OMNES PARTES

2021] 493

of Chadian nationality instituted proceedings in the Belgian courts to

prosecute Hissan Habre´, the former president of Chad, who was

alleged to have committed gross human rights violations.

124

After the

government was overthrown, Habre´ took refuge in Senegal.

125

Subsequent prosecutions of Habre´ in the Senegalese courts failed,

because Senegalese law did not provide for the power to exercise uni-

versal jurisdiction.

126

After Senegal’s rejection of multiple requests

made by Belgium for the extradition of Habre´, Belgium brought a case

against Senegal before the ICJ asking the Court to order Senegal to

commence investigations against Habre´ for his crimes, on the basis that

they were both parties to the United Nations Convention against

Torture (“UNCAT”).

127

At issue was whether Belgium’s status as a party

to the UNCAT was sufﬁcient in itself to justify legal standing before the

ICJ in the absence of a special interest.

128

The majority in the judgment

concluded in the afﬁrmative on the basis that the object and purpose

of the Convention requires state parties to the UNCAT to comply with

certain, core obligations.

129

In turn, all state parties have a common in-

terest to ensure these common interests are complied with:

As stated in its Preamble, the object and purpose of the

Convention

is “to make more effective the struggle against

tor-

ture

. . . throughout the world.” The States parties to the

Antarctic (Austl. v. Japan: N.Z. intervening), Judgment, 2014 I.C.J. 226 (Mar. 31), was implicitly

based on the idea of obligations erga omnes partes). Note that various ICJ judges made observations

effectively recognizing that obligations pertaining to human rights treaties may be owed to all

States parties. Judge Simma observed in relation to the Geneva Convention that “regardless of

whether the maltreated individuals were Ugandans or not, Uganda had the right—indeed the

duty—to raise the violations of international humanitarian law [before the International Court of

Justice].” See Armed Activities on Territory of the Congo (New Application: 2002) (Dem. Rep.

Congo v. Rwanda), Judgment, 2005 I.C.J. 168, 347, ¶ 34 (Dec. 19) (separate opinion by Simma,

J.). Judge Oda in Bosnian Genocide observed in relation to the obligation to prevent and punish

acts of genocide under Article 1 of the Genocide Convention that “these legal obligations are

borne in a general manner erga omnes by the Contracting Parties in their relations with all the

other Contracting Parties to the Convention—or, even, with the international community as a

whole—but are not obligations in relation to any speciﬁc and particular signatory Contracting

Party,” although he further commented that States are entitled to resolve disputes through other

organs of the U.N. but not by invoking the responsibility of States before the ICJ. See Bosnian

Genocide, supra note 68.

124. Belgium v. Senegal, supra note 13, ¶ 19.

125. Id. ¶ 16.

126. Id. ¶ 18.

127. Id. ¶ 65.

128. Id. ¶ 69.

129. Id. ¶ 68.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

494 [Vol. 52

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. The obliga-

tions of a State party to conduct a preliminary inquiry into the

facts and to submit the case to its competent authorities for

prosecution are triggered by the presence of the alleged of-

fender in its territory, regardless of the nationality of the of-

fender or the victims, or of the place where the alleged

offences occurred.

All the other States parties have a common interest in

compli-

ance

with these obligations by the State in whose territory the

alleged offender is present. That common interest implies that the

obligations in question are owed by any State party to all the other States

parties to the Convention. All the States parties “have a legal

inter-

est”

in the protection of the rights involved (Barcelona

Traction, Light and Power Company, Limited (Belgium v.

Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32,

para. 33).

These obligations may be deﬁned as “obligations erga omnes

partes” in the sense that each State party has an interest in the

others’ compliance in any given case.

130

The ICJ then drew parallels between the UNCAT and the Genocide

Convention and concluded that they are similar in nature; for example,

for both Conventions, state parties do not have an “interest of their

own; they merely have . . . a common interest, namely, the

accomplish-

ment

of those high purposes which are the raison d’eˆtre of the

Convention.”

131

The ICJ further concluded:

The common interest in compliance with the relevant

obliga-

tions

under the Convention against Torture implies the entitle-

ment

of each State party to the Convention to make a claim

concerning the cessation of an alleged breach by another State

party. If a special interest were required for that purpose, in

many cases no State would be in the position to make such a

claim. It follows that any State party to the Convention may

130. Id. ¶ 68.

131. Id. (citing Reservations to Convention on Prevention and Punishment of Crime of

Genocide, Advisory Opinion, 1951 I.C.J. 15, 23 (May 28)).

ON OBLIGATIONS ERGA OMNES PARTES

2021] 495

invoke the responsibility of another State party with a view to

ascertaining the alleged failure to comply with its obligations

erga omnes partes, such as those under Article 6, paragraph 2,

and Article 7, paragraph 1, of the Convention, and to bring

that failure to an end.

132

The majority in Belgium v. Senegal thus made important observations.

First, in order to identify obligations erga omnes partes, one must seek to

ascertain (i) the object and purpose of the Convention and therefore

the community interest that the treaty seeks to secure.

133

Then, one

must further understand (ii) the design of the Convention, in

particu-

lar

how it purports, through articulating various rights and obligations,

to give effect to the Convention’s purpose, so as to (iii) determine

whether the obligation at issue was incorporated to fulﬁl this

pur-

pose.

134

In this case, the ICJ decided that the “obligations of a State

party to conduct a preliminary inquiry into the facts and to submit the

case to its competent authorities for prosecution” are essential to

fulﬁll-

ing

the aim of the treaty and therefore all states parties ought to have a

legal interest in others’ compliance with the obligation.

135

The above remarks are essential, as they suggest that not all obliga-

tions

pertaining to the UNCAT are obligations erga omnes partes.

136

The

132. Belgium v. Senegal, supra note 13, ¶ 69.

133. Id.

134. Id.

135. Id. The majority judgment was criticized by Judge Xue and Judge ad hoc Sur. First, both

judges found that the ICJ’s reliance on an obiter dictum from Barcelona Traction was misguided.

Furthermore, Judge Xue thought that the dictum referred to the nature of substantive

obligations (being owed to all); the ICJ had not commented on the procedural aspects of such

obligations (including those relating to standing). She observed that the ICJ in Barcelona Traction

had not intended to change the status of law at that time, namely the fact that actio popularis does

not exist in international law. Second, both judges found the ICJ’s conclusion on admissibility

inconsistent with the law on state responsibility. In particular, Judge Xue observed that it is one

thing to ﬁnd that a state has an interest in compliance with certain treaty obligations, but another

to say that a state has standing; only the “injury” of a state within the meaning of Article 42 of the

ARSIWA gives rise to standing. Judge ad hoc Sur observed that the majority had relied on a

concept borrowed from the ARSIWA that was lex ferenda. See id. (dissenting opinion by Xue, J.); id.

(dissenting opinion by Sur, J.) The tension between the dictums of the 1966 South West Africa case

and Barcelona Traction on actio popularis and obligations erga omnes was addressed in Sections II

and III above. The development of Articles 42 and 48 of the ARSIWA as well as its recognition by

international tribunals was also addressed in Section IV. This Article disagrees with the

conclusions of both judges on these points, for there is, to say the very least, an emerging

recognition of obligations erga omnes partes—one that is, in fact, consistent with earlier authorities

of international courts and tribunals.

136. See also Belgium v. Senegal, supra note 13 (declaration by Donoghue, J. ¶ 12).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

496 [Vol. 52

UNCAT contains a wide list of provisions in relation to the prevention

and prohibition of torture, including Articles 10 and 11 on the obliga-

tion to ensure that education and information regarding the prohibi-

tion of torture are fully integrated into the training of law enforcement

ofﬁcers, and the obligation to keep a systemic review of interrogation

rules.

137

Article 15 of the UNCAT further provides for the exclusion of

statements extracted by torture from legal proceedings.

138

It would

indeed be unimaginable that third-party states should have standing

against a state in an international forum should the latter allegedly

have failed to fulﬁl these provisions.

The conceptual link between the object and purpose of a treaty and

its

underlying common interests gives rise to further implications: since

obligations erga omnes partes are those that are integral to the object and

purpose of the treaty, it is likely that they are also obligations that

can-

not

be subject to reservations, as provided by Article 19(c) of the

VCLT.

139

Moreover, states parties will not be able to contract out of

such obligations as amongst themselves.

140

Article 41 of the VCLT pro-

vides

that:

Two or more of the parties to a multilateral treaty may

con-

clude

an agreement to modify the treaty as between themselves

alone if . .

. (b) the modiﬁcation in question is not prohibited

by the treaty and . . . (ii) [if the modiﬁcation] does not relate to

provision, derogation from which is incompatible with the

effective execution of the object and purpose of the treaty as a

whole.

141

This is consistent with the idea that obligations erga omnes partes are

non-bilateral obligations “owed by any State party to all the other States

parties to the Convention.”

142

Interestingly, since all multilateral treaties have an object and pur-

pose,

the practical application of obligations erga omnes partes may

extend beyond human rights treaties and beyond treaties that are

non-

reciprocal

in character. For instance, they may even apply to free trade

137. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment arts. 10, 11, Dec. 10, 1984, 1465 U.N.T.S. 85.

138. Id. art. 15.

139. VCLT, supra note 74, art. 19(c).

140. Id. art. 41.

141. Id.

142. Belgium v. Senegal, supra note 13, ¶ 68.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 497

agreements.

143

In fact, following from the above analysis, a breach of

obligations erga omnes partes is conceptually no different from a “mate-

rial breach” envisaged under Article 60 of the VCLT.

144

Article 60(3) of

the VCLT provides that a material breach of a treaty “consists in: (a) a

repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the

object or purpose of the treaty.”

145

By affording third-party standing in

the event of such a breach, the very concept of obligations erga omnes

partes supplements the VCLT regarding the consequences for material

breach,

146

by providing a third state with the legal remedy to make a

claim for the cessation of the alleged breach, where judicial settlement

is envisaged.

147

A. Standing, Admissibility, and Jurisdiction

Nevertheless, it is important to clarify that the practical application

obligations erga omnes partes relates solely to standing

148

—which, in

143. See, e.g., Chios Carmody, WTO Obligations as Collective, 17 EUR. J. INT’L L. 419 (2006); Joost

Pauwelyn, A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in

Nature?, 14 E

UR. J. INT’L L. 907 (2003).

144. Marco Longobardo, The Contribution of International Humanitarian Law to the Development of

the Law of International Responsibility Regarding Obligations Erga Omnes and Erga Omnes Partes, 23

J. C

ONFLICT & SEC. L. 383, 397 (2018).

145. VCLT, supra note 74, art. 60(3).

146. VCLT, supra note 74, art. 60(2), provides that: “A material breach of a multilateral treaty

by one of the parties entitles: (a) The other parties by unanimous agreement to suspend the

operation of the treaty in whole or in part or to terminate it either: (i) in the relations between

themselves and the defaulting State, or (ii) as between all the parties; (b) A party specially

affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole

or in part in the relations between itself and the defaulting State; (c) Any party other than the

defaulting State to invoke the breach as a ground for suspending the operation of the treaty in

whole or in part with respect to itself if the treaty is of such a character that a material breach of its

provisions by one party radically changes the position of every party with respect to the further

performance of its obligations under the treaty.” Article 60(5) provides that: “Paragraphs 1 to 3

do not apply to provisions relating to the protection of the human person contained in treaties of

a humanitarian character, in particular to provisions prohibiting any form of reprisals against

persons protected by such treaties.”

147. Where judicial settlement is not expressly provided, a breach of an obligation erga omnes

partes may provide the legal basis for countermeasures as envisaged by the ARSIWA. See ARSIWA,

supra note 79, art. 54.

148. Both obligations erga omnes and erga omnes partes relate strictly to legal standing. See Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 63,

¶¶ 37, 213 (separate opinion by Higgins, J.); see also the series of cases in note 122 below. In her

dissenting opinion in Belgium v. Senegal, supra note 13, Judge Xue argued that the UNCAT had

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

498 [Vol. 52

turn, is an aspect of admissibility.

149

Furthermore, obligations erga omnes

partes do not relate to jurisdiction.

150

In order to bring a claim against a

put in place a treaty body to monitor states’ compliance with the convention, and that it further

provided for an inter-State complaints procedure, both of which served to safeguard the common

interests of all contracting parties in compliance with treaty obligations. She thus argued that the

concern of the majority that the obligation would not be enforceable “should a special interest be

required” was therefore unfounded. She added that the Convention allowed state parties to make

a reservation on the jurisdiction of the ICJ, which suggested that the Convention did not intend

to create obligations erga omnes partes. It is submitted that Judge Xue conﬂated the relationship

amongst standing, admissibility, and jurisdiction. The question of obligations erga omnes partes

relates strictly to standing, which in turn depends on the nature of the obligation itself (whether

it is owed to one or owed to all). It does not relate to the other aspects of admissibility (such as the

non-existence of a dispute, or the failure to exhaust local remedies), nor to the issue of

jurisdiction. Judge Xue’s focus on the mechanisms in place for fulﬁlling the objects and purpose

of the treaty to rebut the argument that state parties intended to create obligations erga omnes

partes was therefore misplaced. If anything, the very inclusion of these mechanisms strengthens

the argument that the obligations are not of a reciprocal nature—hence the need for collective

enforcement. That the compromissory clause of the ICJ may be the subject of reservation is a

matter of jurisdiction and does not alter the erga omnes partes nature of the obligations involved, as

the latter relates to standing and not jurisdiction. States may freely agree to one form of dispute

settlement or another; this does not alter the nature of the treaty obligation. Meanwhile, Judge

Xue’s skepticism of the admissibility of the claim only makes sense if she was suggesting that the

creation of such enforcement mechanisms (such as inter-state communications) implies that the

state parties to the treaty do not intend disputes arising to be eligible for judicial settlement

(which is an aspect of admissibility), or do not intend the ICJ to have jurisdiction over disputes

arising from the UNCAT. Nevertheless, both interpretations must be considered incorrect in

light of Article 30 of the UNCAT, which expressly provides for the ICJ as a forum of dispute

resolution.

149. See Abaclat and Others v. Arg. Republic, ICSID Case No. ARB/07/5, Decision on

Jurisdiction and Admissibility, Dissenting Opinion of Georges Abi-Saab, ¶¶ 18, 126 (Aug. 4, 2011)

(“[J]urisdiction is ﬁrst and foremost a power, the legal power to exercise the judicial or arbitral

function. Any limits to this power, whether inherent or consensual, i.e. stipulated in the

jurisdictional title (consent within certain limits, or subject to reservations or conditions relating

to the powers of the organ) are jurisdictional by essence.” “Generically, the admissibility

conditions relate to the claim, and whether it is ripe and capable of being examined judicially, as

well as to the claimant, and whether he or she is legally empowered to bring the claim to court.”

While a lack of jurisdiction stricto sensu means that the claim cannot at all be brought in front of

the body called upon, a lack of admissibility means that the claim was neither ﬁt nor mature for

judicial treatment.).

150. The difference between standing and jurisdiction has been acknowledged in a series of

ICJ cases. In Armed Activities on Territory of Congo, (New Application: 2002) (Dem. Rep. Congo

v. Rwanda), Judgment, 2006 I.C.J 6, ¶ 64 (Feb. 3), the Democratic Republic of the Congo alleged

that Rwanda had violated the Genocide Convention. Rwanda, however, made a reservation to

Article IX of the Convention (i.e. the compromissory clause). The ICJ took the view that “the

mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the ICJ

jurisdiction to entertain that dispute. The same applies to the relationship between peremptory

norms of general international law (jus cogens) and the establishment of the Court’s jurisdiction.”

This distinction—between standing and jurisdiction—was maintained in the Application of

ON OBLIGATIONS ERGA OMNES PARTES

2021] 499

Convention on Prevention and Punishment of Crime of Genocide (Bosn. &Herz. v. Serb. &

Montenegro), Judgment, 2007 I.C.J. 43, ¶ 147 (Feb. 26), when the ICJ explained that its

jurisdiction over obligations pertaining to the Genocide Convention under Article IX cannot be

extended to other obligations that do not amount to genocide: “[t]hat is so even if the alleged

breaches are of obligations under peremptory norms, or of obligations which protect essential

humanitarian values, and which may be owed erga omnes.” In East Timor, supra note 3, after

afﬁrming the erga omnes character of the right to self-determination, the ICJ remarked that “the

Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are

two different things. Whatever the nature of the obligation invoked, the Court could not rule on

the lawfulness of the conduct of a State when its judgment would imply an evaluation of the

lawfulness of the conduct of another State which is not a party to the case. Where this is so, the

Court cannot act, even if the right in question is a right erga omnes.”

151. Application of Convention on Prevention and Punishment of Crime of Genocide (Croat.

v. Serb.), Preliminary Objections, 2008 I.C.J. 412, ¶ 120 (Nov. 18) (listing examples of objections

to admissibility as “failure to comply with the rules as to nationality of claims; failure to exhaust

local remedies; the agreement of the parties to use another method of paciﬁc settlement; or

mootness of the claim”); Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. 161, ¶ 29 (Nov. 6)

(“Objections to admissibility normally take the form of an assertion that, even if the Court has

jurisdiction and the facts stated by the application State are assumed to be correct, nonetheless

there are reasons why the Court should not proceed to an examination of merits.”); see also

Belgium v. Senegal, supra note 13 (declaration of Donoghue, J. ¶¶ 14–16).

152. See The Gambia v. Myanmar, supra note 20, at 7.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

defendant state on the ground of a breach of an obligation erga omnes

partes, not only must the court have jurisdiction to adjudicate the dis-

pute, but all other aspects of admissibility must also be met.

151

In fact,

once it is clariﬁed that the erga omnes partes nature of an obligation does

not replace the need for a claimant state to prove other aspects of

admissibility, one can readily perceive that the effect of obligations erga

omnes partes is not as drastic as may ﬁrst appear.

500 [Vol. 52

B. Obligations Erga Omnes Partes and Provisional Measures

The above is largely conﬁrmed in the Application of the Convention on

the

Prevention and Punishment of the Crime of Genocide (The Gambia v.

Myanmar) (Provisional Measures) in relation to the Genocide

Convention.

152

In ﬁnding that The Gambia had prima facie standing to

submit a dispute with Myanmar on the basis of the alleged violations of

obligations under the Genocide Convention, the majority declared

that:

In view of their shared values, all the States parties to the

Genocide Convention have a common interest to ensure that

acts of genocide are prevented and that, if they occur, their

authors do not enjoy impunity. That common interest implies

that the obligations in question are owed by any State party to

all the other States parties to the Convention.

In its Judgment in the case concerning Questions relating to the

Obligation

to Prosecute or Extradite (Belgium v. Senegal), the Court

observed that the relevant provisions in the Convention against

Torture were “similar” to those in the Genocide Convention.

The Court held that these provisions generated “obligations

[that] may be deﬁned as ‘obligations erga omnes partes’ in the

sense that each State party has an interest in compliance with

them in any given case” (Judgment, I.C.J. Reports 2012 (II), p.

449, para. 68). It follows that any State party to the Genocide

Convention, and not only a specially affected State, may invoke

the responsibility of another State party with a view to

ascertain-

ing

the alleged failure to comply with its obligations erga omnes

partes, and to bring that failure to an end.

153

The common interest in the Genocide Convention is evident and

the subject matter of the case—the prohibition of genocide—clearly

falls within the object and purpose of the treaty.

The case, however, gave rise to some unique issues. According to the

2018

Report published by the United Nations Human Rights Council’s

Independent Fact-Finding Mission on Myanmar, as a result of the

vio-

lent

conﬂict, nearly 725,000 Rohingya ﬂed to Bangladesh.

154

Myanmar

argued that, in this case, Bangladesh was speciﬁcally affected and

there-

fore,

even if The Gambia had a legal interest in the case, its standing

against Myanmar was subsidiary to the standing of Bangladesh.

155

The

ICJ seemingly dodged Myanmar’s question: if a speciﬁcally affected

state can be identiﬁed, is the right of a third state to invoke

responsibil-

ity

under erga omnes partes subsidiary to that of the speciﬁcally affected

state? Therefore, does a third state only have standing when the

spe-

cially

affected state has waived its right to invoke responsibility against

the violating State? As addressed in Section IV above, it is likely that, if

the party that is not directly injured merely seeks to see the breached

obligation complied with and does not seek reparations on behalf of

the injured state, there ought not to be an issue of subsidiarity.

156

153. Id. ¶ 41.

154. See id. ¶ 71.

155. Id. ¶ 39.

156. See supra text accompanying notes 86–89.

ON OBLIGATIONS ERGA OMNES PARTES

2021] 501

Another point the ICJ failed to address is whether there are formal

admissibility requirements that must be met before a third state can

invoke the responsibility of another on the basis of erga omnes partes. For

example, must the third state ﬁrst appeal to the alleged state to put the

breach to a stop? Must the third state ﬁrst notify the alleged state of its

intention to pursue the claim before an international court? Or should

the state have exhausted local remedies, similar to those envisaged

under Articles 43, 44, and 45 of the ARSIWA?

157

Though these proce-

dural

requirements do not affect the erga omnes partes nature of conven-

tion

obligations, there is seemingly no good reason to think they need

not be complied with in establishing admissibility. Perhaps another

matter requiring clariﬁcation is whether the standard of review for

admissibility at the stage of a request for provisional measures is lower

than if the same issue is to be considered at the preliminary objections

stage; in the former phase, a state is only required to satisfy the ICJ that

the dispute is prima facie admissible.

158

Nonetheless, the ICJ’s endorsement of the concept of obligations

erga omnes partes is absolutely vital to defending the common values and

interests established by a multilateral treaty, where these values and

interests are at “real and imminent risk of irreparable prejudice.”

159

The signiﬁcance is profound, as this endorsement acknowledges that

the object and purpose of a multilateral treaty may be frustrated by a

breach on the part of any one state,

160

and when that happens, judicial

recourse should be available to all states that are party to the respective

treaties to demand the violation to stop. This is also important for

pro-

tecting

the treaty’s integrity, as it is conceivable that if one state can

breach the object and purpose of a treaty without being held

accounta-

ble,

other states may follow suit, entailing the complete breakdown of

157. ARSIWA, supra note 79, art. 48(3) (“The requirements for the invocation of responsibility

by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State

entitled to do so under paragraph 1.”).

158. See Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v.

Nigeria), Provisional Measures, 1996 I.C.J. 13 (Mar. 15).

159. The criterion that there must be “a real and imminent risk that irreparable prejudice will

be caused to the rights [of the applicant State]” is a requirement for the indication of provisional

measures. Application of International Convention for Suppression of Financing of Terrorism

and of International Convention on Elimination of All Forms of Racial Discrimination (Ukr. v.

Russ.), Provisional Measures, 2017 I.C.J. 104, ¶ 89 (Apr. 19).

160. The most obvious example would be when a State engages in activity that may cause

serious damage to the environment in contravention of an environmental agreement. Other

examples may involve the conducting of exploitative ﬁsheries and whaling practices, the

destruction of cultural heritage, or the conducting of nuclear tests, in contravention of

multilateral treaties adopted to regulate these activities.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

502 [Vol. 52

the regulatory regime that the multilateral treaty intended to establish.

Having access to provisional measures in such situations exempliﬁes

the very rationale of these measures, i.e. to preserve the rights of all

treaty parties;

161

this would not be possible if a special interest was

required. Moreover, if such provisional measures are respected by all

states involved, they may disincentivize the use of third-party counter-

measures, and may, in turn, contribute to strengthening the use of the

ICJ as a forum for dispute resolution and thus the rule of law at the

international level.

VI. C

ONCLUSIONS

This Article has outlined the development of obligations erga omnes

partes. It began by cautioning against overreliance on the 1966

judg-

ment

in South West Africa denying third-party standing, and illustrated

the seismic change in the perception of international obligations

(inﬂuenced largely by mutual commitments undertaken by states

to-

ward

protecting human rights) that led to the ICJ’s observation in

Barcelona Traction that there may be obligations owed to the

interna-

tional

community as a whole. The Article then appraised the ILC’s

effort to articulate state responsibility on the basis of “common

inter-

ests”

and traced how the ILC’s proposals were adopted in the jurispru-

dence

of regional courts and international tribunals.

Importantly, as this Article argues, the subsequent endorsement of

obligations

erga omnes partes by the ICJ provides valuable guidance on

how to identify those treaty obligations where the standing of third-

party states is not expressly provided for. In such cases, whether an

obli-

gation

is deemed erga omnes partes depends on whether the obligation is

essential to the fulﬁlment of the treaty’s object and purpose.

162

Through this ruling, the ICJ’s approach potentially expanded the appli-

cation

of the concept, implying that the concept of obligations erga

omnes partes may be applied outside of human rights conventions. In

such a way, the notion of obligations erga omnes partes essentially asserts

that “even in the absence of an express clause recognizing standing, all

States can institute proceedings if they seek to defend a small range of

obligations protecting fundamental community values [forming the

raison d’etre of a treaty].”

163

Viewed in this light, a breach of erga omnes

161. See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional

Measures, 1979 I.C.J. 7, ¶ 44 (Dec. 15).

162. See supra notes 133–35.

163. Christian J. Tams, Individual States as Guardians of Community Interests, in F

ROM

BILATERALISM TO COMMUNITY INTEREST: ESSAYS IN HONOUR OF BRUNO SIMMA 379, 386 (Ulrich

ON OBLIGATIONS ERGA OMNES PARTES

2021] 503

partes is no different from a “material breach” under the VCLT: its prac-

tical effect is that it provides the claimant state with an additional judi-

cial remedy to demand the cessation of the breach.

164

Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer &

Christoph Vedder eds., 2011).

164. Cf. VCLT, supra note 74, art. 60(2).

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