This article is authored by Anjana Palamand, a third year student in the B.A., LL.B. (Hons.) course at Symbiosis Law School, Pune.
Some international obligations are owed to all state parties of a multilateral treaty and are termed as obligations erga omnes partes. These obligations affirm that there is a nexus between respect for individual rights in multilateral treaties, obligations of state parties under these treaties and the rights of other state parties to institute proceedings if these obligations are not being complied with. These obligations were first recognized in the Barcelona Traction case, where the International Court of Justice (“the Court”) distinguished obligations owed to the international community as a whole (obligations erga omnes) and those arising vis-à-vis another State. The latter are obligations erga omnes partes. This article analyses the evolution of obligations erga omnes partes through various judgements of the Court and its contemporary significance. It calls for widening the ambit of these obligations to cover more human rights in the best interest of justice.
The Court has always adopted a consistent interpretation of obligations erga omnes partes when the case concerns grave human rights violations. These include questions applying treaties such as the Convention Against Torture and the Genocide Convention. The obligations mentioned in these treaties have also been reflected in many countries’ national legislations and jurisprudence. Therefore, state practice has also been indicative of obligations erga omnes partes. This signifies a humanitarian and moral value for countries to uphold these values as it has crystallized the global human rights order.
Before moving forward, understanding the contemporary significance of this issue is important. When South Africa approached the Court in December 2023, it established its standing because of obligations erga omnes partes. The country argued that since both South Africa and Israel are parties to the Genocide Convention, Israel owes an obligation to all other state parties (including South Africa) not to partake in genocide. Therefore, if not South Africa, other signatories also had the right to institute proceedings against Israel for committing the crime of genocide. In a period where systematic crimes are on the rise, obligations erga omnes partes give any non-injured state the right to stop international crimes.
It is relevant that countries that are thousands of miles away and have no direct link to the case can also play a role in ensuring that justice is served. Pragmatically speaking, when countries perpetuate suffering on their nationals, the survivors lack any international legal recourse. Furthermore, per Article 34 of the Court’s Statute, only states can be parties in cases before the Court. In such circumstances, non-injured parties have also been able to invoke the state party’s obligations erga omnes partes since the victims do not have to be nationals of the state invoking the right.
Another relevant case is Canada and Netherlands v. Syria, where Canada and the Netherlands submitted that Syria has an obligation erga omnes partes under the Convention Against Torture. In the Court’s order from November 2023, President Donoghue and twelve other judges held that Canada and the Netherlands have the standing to bring this case, although they have no direct link. This is because Syria owes obligations erga omnes partes to Canada and the Netherlands not to commit any acts of torture or other acts of cruel, inhuman or degrading treatment, or punishment.
The development of jurisprudence surrounding obligations erga omnes partes can be traced back to Gambia v. Myanmar, where, for the first time, standing was granted only on the grounds of obligations erga omnes partes. The Gambia submitted to the Court that Myanmar had obligations erga omnes partes not to commit genocide against members of the Rohingya group. Although The Gambia is more than 11,000 kilometers from Myanmar, and members of the Rohingya group are not at all connected to The Gambia, the Court still held that The Gambia could institute proceedings against Myanmar for committing and not preventing genocidal acts against members of the Rohingya group. While Myanmar argued that only Bangladesh has the standing since it is being especially affected by the events mentioned in the case, the Court held that any party, without distinction, can establish its legal interest and standing in complying with the provisions of a multilateral treaty. The Court also relied on Belgium v. Senegal to support this. In this judgement, it was noted that all States have a common interest in upholding international obligations, especially where a case is such that no State would be able to bring a claim. This includes cases where a State commits crimes against its nationals, and diplomatic protection is not possible.
However, in the past, obligations erga omnes partes have only been used restrictively in cases of grave human rights violations. The Court has been broadly consistent in recognizing obligations erga omnes partes under fundamental human rights treaties, such as the Genocide Convention, Convention Against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination. Broadly, it can be inferred that the Court has protected all those rights, which can be equated to jus cogens norms. Reading Article 53 of the Vienna Convention on the Law of Treaties will define these jus cogens norms as peremptory norms of general international law and can have no derogation whatsoever. These rights are secondary to cultural or social rights, and have acquired the status of cornerstone principles of international law. Therefore, not every human rights violation is a derogation of obligations erga omnes partes. However, obligations erga omnes, as defined by the Court, include acts of genocide, aggression, slavery, racial discrimination, and so on. Instead of this overlap between obligations erga omnes partes and erga omnes, the Court must take a more liberal approach to the former to protect those important human rights that are not regarded as jus cogens.
The Court has rightly held that preambles of all human rights treaties uphold humanitarian values, thus giving all state parties an interest in common compliance. Therefore, the author calls for the Court to recognize all first- and second-generation human rights as obligations erga omnes partes as long as they are codified into a multilateral treaty. Doing so will enable non-injured countries to have an interest in its compliance. This common interest will allow more countries to take a stance against human rights violations and widen the Court’s ambit to bring countries to justice. By allowing more countries to approach the Court, it will be in the best interests of justice and will make countries more compliant with human rights treaties that they have signed.