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Crawford’s Multilateralism and the International Court of Justice

In: The Australian Year Book of International Law Online
Author:
Juliette McIntyre Lecturer, University of South Australia BA LLB/LP Hons (Flin), LLM International Law (Cantab), PhD (Melb)

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Abstract

Over the course of his distinguished career, one of the central focus points in the work of Judge James Crawford was the role for the International Court of Justice in multilateral disputes and those engaging community norms. There are two judicial procedures in respect of which the multilateral or communitarian nature of the dispute is particularly contentious: standing, and intervention. This paper considers the Court’s most recent jurisprudence in respect of these procedures, with particular attention paid to Crawford’s own engagement with this field as both a scholar and Judge.

1 Introduction

As Judge (then Professor) James Crawford wrote in his final Hague lecture series Chance, Order, Change,1 ‘for a long time, it seemed that international lawyers could only count up to two: two sides to a treaty, two parties to a dispute’.2 But Crawford considered that ‘[t]here is no a priori reason why rights and responsibilities in international law should always be bilateral’.3 In particular, Crawford held the view that the International Court of Justice (‘the Court’) had an important part to play in the modern multilateral era, by permitting States to enforce multilateral obligations and communitarian norms through judicial settlement. This paper engages with this question of multilateral disputes and those engaging community interests, and the role of the Court. Particular attention will be paid to Crawford’s own engagement with this field as both a scholar and Judge.

There are two judicial procedures in respect of which the multilateral or communitarian nature of the dispute is particularly contentious: standing, and intervention. This contribution will consider each in turn. In respect of the former, Crawford opined that it is ‘[b]etter to give States standing in Court to protect what they perceive as global values than to leave them only with non-judicial means of dispute settlement’.4 This idea was reflected in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts5 (‘ASR’) finalised in 2001, carried through their second reading by Crawford as Special Rapporteur. Pursuant to Article 48(1)(b), any State is entitled to invoke the responsibility of another State if ‘[t]he obligation breached is owed to the international community as a whole’.6 This is reviewed in Part 3.

In respect of the latter procedure, intervention, as Crawford argued on behalf of Colombia in Territorial and Maritime Dispute (Nicaragua v Colombia),7 intervention is an important aspect of the judicial process under the Statute as ‘[i]t distinguishes this Court in an additional way from arbitral tribunals’,8 where proceedings are private and bilateral.9 The relation of this procedure to communitarian or multilateral disputes is considered in Part 4.

Finally, as a Judge of the International Court of Justice, Crawford was involved in two matters that raised issues relevant to communitarian claims: the Marshall Islands cases,10 and The Gambia v Myanmar.11 Part 5 offers an assessment of what this recent jurisprudence indicates for the future of multilateral and communitarian proceedings before the Court. Part 6 concludes. To begin, however, a brief overview of the status of multilateral and communitarian norms in international law is required.

2 Multilateral and Communitarian Obligations in International Law

Norms erga omnes in customary law,12 or norms erga omnes partes arising out of a multilateral treaty,13 are rules of international law established in the interest of the community or collective to whom they are addressed. It bears noting, however, that a multilateral treaty may create either multilateral or bilateral obligations, ‘as many bilateral obligations as there are pairs of parties’.14 As described by Urs, ‘they are bilateral obligations in multilateral form’.15 The term multilateral, ‘is most commonly used to refer to global cooperative action’,16 but as Crawford pointed out, it seems ‘extravagant’ to treat particular types of obligations, for example, in the environmental sphere, as owed individually to every State as a bilateral obligation.17 Rather, such obligations should be considered communitarian.18 The notion of communitarian obligations and interests was famously formulated by the Court in Barcelona Traction:19

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern 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.20

Crawford provisionally defined communitarian obligations in the context of the ASR as follows:

multilateral rights and obligations, established in the interest of and owed to the international community as a whole, entailing a recognized legal interest of each of its members to invoke compliance with it.21

Although the notion or existence of an international community is ‘not precisely defined’,22 Crawford favoured the idea that ‘[t]he international community is a more inclusive idea’,23 and this paper adopts Crawford’s view that it ‘[i]ncludes entities in addition to States’,24 such as the European Union and the United Nations.

Communal does not necessarily mean ‘superior’; not all community interests are protected by jus cogens norms.25 Norms jus cogens are peremptory norms.26 According to the ASR, States are obliged to cooperate to bring to an end through lawful means any serious (that is, systematic or gross) breach of a peremptory norm.27 Taken together, norms erga omnes and/or jus cogens, including concepts such as the prohibitions on torture and genocide, are considered to be an expression of the ‘[b]asic values that underlie the international system’.28 The status of a particular norm as one of communal interest is not always clear,29 but for the purposes of this paper, it only matters that such norms do exist.30

The recognition of the existence of substantive legal obligations owed by all States to all States immediately raises the question of the enforcement of those obligations by means of adjudication,31 and the applicable procedures that would enable such to occur. The Barcelona Traction dictum, together with Article 48 of the ASR, by which any State is entitled to invoke the responsibility of another State if the obligation breached is owed to the international community as a whole, put in place a basic framework for the adoption of a procedural law of standing in the public interest,32 which is the subject of our next Part.

3 Standing in the Public Interest

Standing may relate to two different issues: rights in personam or rights of claim. In other words, standing may be a question of the attributes of the entity (eg statehood) or of whether the claim is one that said entity can bring. Usually, this requires an interest in the claim or that the entity has suffered some form of damage.33 But there are other avenues, such as bringing a claim in the name of the public interest in the enforcement of communitarian norms.34

The notion of bringing such a claim is in fact not new, but it has taken some time for a coherent jurisprudence to emerge. The Permanent Court of International Justice (‘PCIJ’) in its very first case, The Wimbledon,35 allowed for a claim to be brought by Great Britain, France, Italy, and Japan against Germany in relation to its refusal to permit access to the Kiel Canal.36 It was alleged that German authorities had prevented the British steamship SS Wimbledon, chartered by the French armament firm Les Affréteurs réunis, from passing through the canal. Although Italy and Japan had suffered no direct harm, 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.37

The PCIJ recognised that the applicant States shared ‘a recognized interest in ensuring compliance with the international regime’,38 established by Article 380 of the 1919 Versailles Peace Treaty.39 The armaments aboard the SS Wimbledon had been destined for Poland. In May 1923, Poland submitted an application to intervene in the case under Article 62 of the PCIJ Statute. As such, the PCIJ would have been required to ascertain whether Poland had an ‘interest of a legal nature’ in the case. However, at a public sitting of the Court on 25 June 1923, the Agent of the Polish Government abandoned this application, and instead prevailed upon Poland’s right to intervene under Article 63, as a party to the Versailles Peace Treaty.40 Poland ‘[d]eclared itself in agreement with the submissions of the applicants’.41 The PCIJ recorded and admitted Poland’s intervention in the case,42 going on to declare that the German authorities were wrong to refuse access to the Kiel Canal, and that compensation was due to France.43 The other applicants in the case, having suffered no direct prejudice, received nothing save for the enforcement of Article 380. Gattini points out that it is possible to read the Wimbledon through the lens of obligations erga omnes partes, and as an application of ‘[t]he concept, if not the notion of actio popularis’.44 Further instances of practice in this regard include the demilitarization of the Aaland Islands, held by an International Committee of Jurists to be an obligation with which ‘[e]very State interested has the right to insist upon compliance’.45

However, in the notorious South-West Africa (Second Phase)46 judgment, the Court excluded the invocation of responsibility by States that could not claim individual rights.47 In 1960, the Court received two separate Applications from Ethiopia and Liberia, each instituting proceedings against South Africa relating to ‘[t]he continued existence of the Mandate for South West Africa’ and the duties and performance of South Africa as Mandatory.48 The Court joined the proceedings,49 which were then met with preliminary objections from South Africa. South Africa argued that Ethiopia and Liberia lacked standing to bring the case,50 and that the Mandate for South West Africa was no longer in force,51 despite the Court having held in its three 1950s Advisory Opinions that South West Africa was still a mandated territory.52 South Africa also asserted that there was no dispute between the parties.53 In 1962, the Court rejected all of South Africa’s contentions and held that it had jurisdiction to adjudicate on the merits of the dispute.54

In 1966, it was expected that the Court would address the merits of the case. Instead, the Court returned to two questions of jurisdiction that it considered to have an ‘antecedent character’.55 First, whether the Mandate continued in force,56 notwithstanding that in 1962 the Court had held that it did.57 Second, the Court returned to the question of standing. The Court stated that the 1962 Judgment had only addressed the question of Ethiopia and Liberia’s standing ‘before the Court itself’58 and not their ‘legal right or interest’ in the ‘subject-matter of their claim’.59 The Court held that individual members of the League of Nations were not to be regarded as having their own legal right or interest in the administration of the Mandate; only the League itself could bring an action concerning the performance of the Mandate.60

The two judgments are clearly inconsistent,61 and as Crawford observed, the (Second Phase) judgment ‘[s]eemed to presage a narrow view of the range and effect of international law in matters of public interest, if not an actual rejection of the possibility of multilateral rights and obligations’.62 But the Court rapidly returned to the view that States have standing to invoke communitarian norms ‘[d]ue to the importance of the underlying values and a common interest of each member of the international community in invoking them’.63 In Barcelona Traction, although the facts did not involve a question of public interest standing,64 the Court took the opportunity to formulate a notion of communitarian obligations and interests in which:

The dominant element is the universality of the interest in complying with such obligations and thus, by extension, the standing of all States to claim non-compliance, whether or not they have suffered any actual harm from the breach.65

Bolstering the limited historical case law, there are also a large number of ‘liberally formulated’ compromissory clauses in major human rights and environmental treaties which grant standing to State parties.66 As noted by Tams, ‘treaty-based actiones populares and erga omnes proceedings make considerable room for legal proceedings in defence of community interests’.67

One of Crawford’s significant contributions to this field was the adoption of Article 48 of the ASR. Article 48 deliberately extended the possibility of bringing an action in the public interest for obligations owed to the international community as a whole by making it clear that damage is not a precondition for the invocation of responsibility.68 The significance of this may be understood by reference to ASR Articles 42 and 48, which regulate the entitlement of two ‘classes’ of States to invoke the responsibility of a wrongdoing State. Article 42 permits an ‘injured’ State to invoke the responsibility of another State. Consistently with the decision not to require damage as an element of responsibility, any State to which the obligation breached was due individually, or in the case of multilateral obligations, which was ‘specially affected’ by the breach, qualifies as an injured State. In cases of the breach of a multilateral obligation which does not specially affect a particular State, responsibility may still be invoked under Article 48 by a State acting in the collective interest.69 As such, Article 48 is in effect ‘a public interest standing, not the exercise of a subjective right’.70 As observed by Crawford, Article 48:

recognizes that other States, by virtue of their participation in a multilateral regime or as a consequence of their membership of the international community, have a legal interest in the performance of certain multilateral obligations.71

And despite the (admittedly significant) hiccup that was the (Second Phase) judgment,72 the Court has, since the conclusion of the ASR, been quite accepting of public interest litigation,73 permitting a right of standing for individual States to enforce obligations erga omnes partes.74

The issue of responsibility for breaches of communitarian norms arose in the Court’s 2005 decision in the Armed Activities case and was addressed in the Separate Opinion of Judge Simma.75 The case concerned alleged acts of armed aggression committed by Uganda on the territory of the Congo, and counterclaims regarding acts of aggression committed by the Congo against Uganda; a ‘complex and tragic situation’ involving significant loss of life.76

According to Judge Simma, the Court should have admitted Uganda’s second counterclaim which concerned the maltreatment by Congolese soldiers of persons at the Ndjili International Airport whose nationality could not be ascertained. Even though Uganda did not rely on the breach of communitarian norms for standing, Judge Simma expressly invoked Article 48 of the ASR, stating further 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 committed against the private persons at the airport. The implementation of a State party’s international legal duty to ensure respect by another State party for the obligations arising under humanitarian treaties by way of raising it before the International Court of Justice is certainly one of the most constructive avenues in this regard.

As to the question of standing of a claimant State for violations of human rights committed against persons which might or might not possess the nationality of that State, the jurisdiction of the Court not being at issue, the contemporary law of State responsibility provides a positive answer as well…. The obligations deriving from the human rights cited above and breached by the DRC are instances par excellence of obligations that are owed to a group of States including Uganda, and are established for the protection of a collective interest of the States parties to the Covenant.77

In the 2012 judgment in Obligation to Prosecute or Extradite,78 the Court made clear that standing to enforce communitarian norms is permissible. The case concerned a Belgian national of Chadian origin filing a complaint with a Belgian investigating judge, alleging torture and other crimes against humanity committed by the former President of Chad, Hissène Habré, during his presidential tenure.79 The Belgian judge, considering that the allegations were sufficiently serious, issued an international warrant in absentia for the arrest of Mr Habré in 2005. Belgium transmitted the international arrest warrant to Senegal, and requested the extradition of Mr Habré.80 Senegal neither complied with Belgium’s request for extradition, nor made any significant progress in respect of prosecuting Mr Habré.81 Belgium sought an order that Senegal had breached its obligations arising under the Convention Against Torture (‘CAT’),82 insofar as the Senegalese authorities had failed to undertake any preliminary inquiry into the allegations of torture,83 and was continuing to breach its obligations as Senegal had neither prosecuted Mr Habré nor extradited him to Belgium as it was obliged to do.84 In respect of Belgium’s standing to bring the case, the Court had to consider whether being a party to the CAT was sufficient.85 The Court confirmed that for obligations erga omnes partes, such as those arising under the CAT or the similar Convention on the Prevention and Punishment of the Crime of Genocide,86 States ‘common interest in compliance with the relevant obligations … implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party’.87 Although it did not refer to Articles 42 or 48 of the ASR, the Court nevertheless drew a functionally similar distinction by emphasising that there was no requirement for a State to have a ‘special interest’ in order to bring a claim.88

The erga omnes partes character of the International Convention for the Regulation of Whaling was also implicitly recognised,89 in the Whaling case in which Crawford appeared on behalf of Australia.90 Japan’s conduct was subject to the ‘objective international regime’ of the Convention,91 and was opposed by a ‘strong reaction of the international community’.92 The remedies sought by Australia coincided with the remedies available under Article 48 of the ASR. Australia did not claim to have suffered any damage—they did not, after all, own the whales93—rather, Australia sought only a declaratory judgment, including an express recognition of the obligation of cessation of the breach and the corollary obligation of revoking any extant whaling permits.94

The Court’s case law to this point suggests that bringing a case in the interest of obligations erga omnes partes is no longer controversial, although its most recent case law remains to be examined in Part 5. Moreover, although the Court has not been required to consider the matter, there is ‘no qualitative difference’ between obligations erga omnes partes and obligations erga omnes, which suggests that standing should be treated the same in respect of customary law claims.95

However, it bears emphasising that the Court, while open on the matter of standing nevertheless retains a strict position in relation to the necessity of consent to jurisdiction; a quite separate issue that is nevertheless on occasion conflated with the question of standing.96 In the East Timor case,97 while recognizing the erga omnes status of the right to self-determination, the Court applied the indispensable third-party rule,98 and declined to exercise its jurisdiction. The Court stated:

Whatever the nature of the obligations 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.99

Similarly, in the Armed Activities (New Application) case, the Court stated:

the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties.100

To this extent, Crawford was correct in his observation that ‘the general rule is the one giving States standing to invoke compliance with communitarian norms, provided that other jurisdictional requirements are met’.101 Crawford opines that the Court has thus drawn strict boundaries between the status of communitarian norms and obligations, matters related to State responsibility such as standing, and the ‘procedural requirements for the exercise of the Court’s jurisdiction’.102 That a norm erga omnes or jus cogens is at issue does ‘not take priority’ over other procedural requirements.103 Nevertheless, the Court has, since the conclusion of the ASR, been consistently open to a right of standing for individual States to enforce communitarian norms,104 where these other procedural requirements are met.

4 Intervention

This leads to another, related, intersection between communitarian norms and procedure. If standing in the public interest is permissible, should an ‘affected public’105 of States also be given the opportunity to present their views through the procedural tool of intervention,106 or do other procedural requirements again trump communal interests?

The Court’s Statute in Article 62 provides that a third State may request to intervene in a contentious case whenever it has an interest of a legal nature which may be affected by the Court’s judgment in the case.107 Article 63 grants a right108 to States to intervene in a contentious case when they are party to a multilateral treaty that will be interpreted in the Court’s judgment.109

Article 63 is the historically antecedent provision.110 It is commonly agreed that the object of Article 63 was to acknowledge the ‘res interpretata effect’ of the Court’s judgments,111 and to expand the ‘normative legitimacy’112 of such decisions by enabling broader State participation in the act of interpretation.113 The intervenor is bound by the interpretation that the Court gives to the relevant convention, vis-à-vis the original parties to the case,114 and also presumably in respect of other States should it become involved in a different dispute involving the interpretation or application of the same treaty.115 It would be difficult to take seriously the idea that the Court could apply a different interpretation in such a situation (as distinct from a different application to the relevant facts), although this has never been tested.116

Turning to Article 62, occasionally referred to as discretionary intervention,117 it is generally perceived to have two potential functions: the protection of the interests of States not party to the proceedings,118 and an ‘information production’ function,119 by which the Court can receive knowledge about the broader context of a dispute and delimit (or extend) its decision accordingly. The label ‘discretionary’ refers to the Court’s broad decision-making power to determine whether the conditions set out in Article 62 are met, in particular, whether the third State has established ‘an interest of a legal nature which may be affected by the decision in the case’. While the Court has observed that Article 62 does not ‘confer upon it any general discretion to accept or reject a request for permission to intervene for reasons simply of policy’,120 the terms of Article 62 have proven so broad as to almost defy definition.121 At best, one could postulate a sliding scale from ‘necessary intervention’,122 to cover those situations in which the case cannot proceed without a third State being joined as a party,123 through to interests that may be directly affected and interests that may be affected by implication.124 To date, however, the scale has stopped well short of the situation where an interest of a legal nature could be established ‘simply on the basis that all States have an interest in the law, and in the condition of the law’;125 which has distinct implications for the Court’s approach to intervention under Article 62 in respect of communitarian norms.

Indeed, there is a ‘tension’ between the ordinarily bilateral structure of dispute settlement, on the one hand, and the ‘recognition of community interests’ on the other,126 which may undermine the Court’s capacity to ‘promote’ global values and the public interest.127 The ‘community of interest’ in disputes about obligations jus cogens, or owed erga omnes in particular, implies that there should be a greater willingness on the part of the Court to recognize the appropriateness of requests to intervene when such norms are at issue in the main proceedings.128

The Court is open to the possibility of intervention on the basis of interests erga omnes partes pursuant to Article 63.129 Such occurred in the Wimbledon case,130 and in the Whaling case, in which New Zealand intervened.131 Judge Cançado Trindade opined hopefully that the Whaling case—the first successful Article 63 intervention since 1951—indicated that the intervention procedure was on the cusp of a resurgence, and that:

The resurgere of intervention is thus most welcome, propitiating the sound administration of justice (la bonne administration de la justice), attentive to the needs not only of all States concerned but of the international community as a whole, in the conceptual universe of the jus gentium of our times.132

The relationship between erga omnes partes and Article 63 is demonstrated in the Whaling case.133 As described in Part 3, Australia’s claim was not to have suffered a direct injury, nor could New Zealand’s intervention be characterised as the pursuit of harmonious development of the law. Rather, the act of intervention serves to bring a powerful reinforcement to one side of the case.134 What the concept of erga omnes adds to the right already available to States under Article 63 is an endorsement of the intervention procedure as a form of collective moral opprobrium.

Similarly, in one of the Court’s most recent cases, The Gambia has filed suit against Myanmar alleging that Myanmar is responsible for committing genocide against members of the Rohingya group.135 While The Gambia has invoked both States’ adherence to the Optional Clause and the Genocide Convention as the formal bases of jurisdiction,136 it has also emphasised that the prohibition of genocide has the character of a peremptory norm and the obligations under the Convention are owed erga omnes and erga omnes partes.137 The Maldives, the United Kingdom, Canada and the Netherlands, although not affected or directly injured by Myanmar’s conduct, have indicated their intention to act as intervenors in the case,138 which could only be on the basis of Article 63.

The story is quite different in respect of Article 62 intervention. Despite the overlapping language,139 it is not yet clear whether the ‘legal interest’ that all States have in the protection of obligations erga omnes will be considered the same form of legal interest that justifies an intervention under Article 62. The Court has explicitly rejected that States may have an interest of a legal nature simply because all States have an interest in the law.140 Nor has the Court accepted arguments that an intervention would ‘assist the Court in establishing an overall picture of the situation’,141 and intervention is not conceived of as a solution to fragmentation and the risk of ‘loss of an overall perspective on the law’.142

However, in respect of communitarian norms, third States are arguably ‘equally affected’ by their breach, and in principle share the same interest as the applicant State, particularly where standing in the original action is based on public interest.143 As such, Article 62 intervention in respect of communitarian norms is a logical corollary. Bonafé contends that interest in the protection of erga omnes obligations ‘differs from the general interest in the applica- tion of principles and rules of international law’.144 Urs suggests that there is ‘no distinction between the interest of the state instituting the proceedings and the interests of states seeking to intervene’ under Article 62.145 Benzig likewise argues that the protection of community interests should be a sufficient interest for the purposes of Article 62,146 while Tanaka contends that such intervention could serve to ‘mitigate bilateralism’.147 Judge Gaja, long an advocate for increased multilateral participation in judicial proceedings,148 has observed that ‘[w]hatever “interest of a legal nature” is required in Article 62 … it cannot be higher than the one that justifies bringing a claim before the Court’.149 If standing in the public interest is permitted, so too should intervention under Article 62 be justified.150

Nonetheless, the Court has emphasized that as a matter of judicial policy,151 the issues—the status of the substantive norm and procedural questions such as standing, jurisdiction, or intervention—are to be kept quite separate.152 To date, the Court has appeared quite willing to accept standing on the basis of obligations erga omnes partes, and likewise intervention under Article 63 in respect of a multilateral treaty, yet there continues to be doubt in respect of obligations erga omnes arising under customary law and in respect of intervention under Article 62. We turn now to an assessment of the Court’s most recent jurisprudence, where Crawford was sitting as a Judge, to see if any further insights can be gleaned.

5 Crawford as Judge: Multilateral and Communitarian Norms in the Court’s Recent Jurisprudence

Appointed as a Judge of the International Court of Justice in November 2014 and taking office in February 2015, Judge Crawford sat in two matters that will be likely to significantly influence the Court’s approach to cases involving communitarian norms.

The first was a series of three separate but related cases involving the Marshall Islands against the UK, India and Pakistan (and indeed the other nuclear weapons states, but they were not entered in the List due to a manifest lack of jurisdiction).153 The Marshall Islands claimed that these States were violating their international obligations under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons154 by failing to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament. For India and Pakistan, this was treated as a customary law obligation, given they are not parties to the treaty.155

The Marshall Islands argued that the Court, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,156 had effectively declared that the obligation in Article VI is an obligation erga omnes,157 and that as such every State has a legal interest in its timely performance.158 In its Memorial, the Marshall Islands argued that ‘each State has locus standi to seek to enforce the customary international law obligation on all others … “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament …”’159 Neither India nor the UK raised any arguments with respect to the Marshall Islands’ standing to bring the claim.160 But Pakistan argued that the Marshall Islands lacked standing, rejecting the contention that Article VI or its customary law equivalent amounted to an obligation erga omnes.161 Pakistan contended that the Marshall Islands ‘cannot bring these proceedings as a kind of actio popularis unless it can show that an entitlement to do so arises from the erga omnes character of the obligations which it asserts’.162

A majority of the Court, by the casting vote of President Abraham, decided the case on very different grounds and did not engage with the argument regarding the erga omnes status of the obligation to pursue disarmament through negotiation, nor with the contention by Pakistan that the Marshall Islands lacked standing.

Rather, each of the cases was dismissed by the Court for the same reason: the lack of a ‘dispute’ between the Marshall Islands and the defendant States.163 While the Marshall Islands had not made any direct diplomatic contacts with the defendants in relation to nuclear disarmament, it had made two statements in multilateral fora. The first statement was made at the High-Level Meeting of the General Assembly on Nuclear Disarmament, when the Minister for Foreign Affairs of the Marshall Islands ‘“urge[d] all nuclear weapons states to intensify efforts to address their responsibilities in moving towards an effective and secure disarmament”’.164 The second statement was made at the Second Conference on the Humanitarian Impact of Nuclear Weapons. But the majority held that these statements were insufficient to establish the existence of a dispute between any of the parties:

The evidence must show that the parties ‘hold clearly opposite views’ with respect to the issue brought before the Court … As reflected in previous decisions of the Court in which the existence of a dispute was under consideration, a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant …165

It is notable that the majority judgment effectively recognised the collective character of States’ interest in nuclear disarmament. The substantive reasons begin by stating that:

Since the creation of the United Nations, and in line with its purposes under Article 1 of the Charter, the issue of disarmament has been central to the Organization’s concerns … The General Assembly has been active in the field of international disarmament generally and nuclear disarmament in particular.166

Yet the majority then ‘failed to take the logical next step’ of recognising the potential for the dispute itself to be multilateral,167 instead retreating into ‘an excessive formalism’,168 that ‘works to limit access to the Court’.169 This decision was quite at odds with the Court’s previous jurisprudence. While the Court found existence of a dispute in Belgium’s case against Senegal by relying on the erga omnes partes nature of the obligation to prosecute or extradite torture suspects,170 in the Marshall Islands cases the majority considered that ‘there were [not] any of the normal indicators of a bilateral dispute’ due to the multilateral nature of the claims and the fora in which those claims had been initially put forward.171 This is where we turn to Judge Crawford’s dissent. Judge Crawford forcefully rejected the position adopted by the majority and instead held that:

It is now established—contrary to the inferences commonly drawn from the merits phase of South West Africa—that States can be parties to disputes about obligations in the performance of which they have no specific material interests. This much is made clear from Article 48 of the [ASR]…. The importance of the South West Africa cases lies in the recognition that a multilateral disagreement can crystallize for adjacent purposes as a series of individual disputes coming within the Statute.172

Judge Crawford continued:

[B]y the time of Nayarit, by stages, tentatively, but in time, the Marshall Islands had associated itself with one side of that multilateral disagreement, revealing sufficiently for present purposes a claim in positive opposition to the conduct and claims of the nuclear-weapons States …173

In respect of the bilateral nature of the proceedings, Judge Crawford said:

It is true, for example, that the Court cannot order third States to enter into negotiations, and that one cannot negotiate alone. But a third State could breach an obligation to negotiate by its own conduct and the Court could determine as much.174

Indeed, while the cases concerned the legal duties of the respondent States to negotiate nuclear disarmament, the Court has the power to issue a declaratory judgment addressing the breach or affirming compliance with any obligation. As such, a simple denial of the breach or assertion of compliance with said obligation should be deemed sufficient for the purposes of establishing a dispute.

The decision in Marshall Islands radically divided the members of the Court, particularly with respect to whether it was consistent with the Court’s previous jurisprudence in respect of the dispute requirement. Judge Crawford criticised the Court’s departure from the ‘flexibility principle’, ‘which allows it to overlook defects in the Application when to insist on them would lead to circularity of procedure’, and would jeopardize ‘the sound administration of justice, prioritizing substance over form’.175 The decisions were not well-received, with most scholars criticizing the Court for finding a procedural loophole to justify its avoidance of a difficult political issue.176 Certainly, the Court’s approach seemed to presage a restriction of its earlier jurisprudence favouring actions based on community interests and multilateralism. Paddeau suggests, however, that the Marshall Islands cases could simply represent ‘some teething problems in the adaptation by international institutions to the brave new multilateral world of international law’.177

This more optimistic outlook appears to be confirmed by Judge Crawford’s last judicial appearance in The Gambia v Myanmar provisional measures order. The Gambia’s Application alleged that Myanmar was responsible for committing genocide against the Rohingya ethnic minority:

[F]rom around October 2016 the Myanmar military … and other Myanmar security forces began widespread and systematic ‘clearance operations’—the term that Myanmar itself uses—against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.178

It is obvious from the outset that The Gambia has no claim to be injured by Myanmar’s conduct towards the Rohingya, nor even to be materially interested. Rather, the claim was explicitly premised on the erga omnes partes nature of the obligations under the Genocide Convention:

The Gambia, mindful of the jus cogens character of the prohibition of genocide and the erga omnes and erga omnes partes character of the obligations that are owed under the Genocide Convention, institutes the present proceedings to establish Myanmar’s responsibility for violations of the Genocide Convention, to hold it fully accountable under international law for its genocidal acts against the Rohingya group, and to have recourse to this Court to ensure the fullest possible protection for those who remain at grave risk from future acts of genocide.179

For the purposes of the provisional measures order, the Court unanimously concurred with The Gambia.180 The Court held first that a dispute existed between the parties.181 It appeared to fundamentally adjust its position from that in the Marshall Islands cases by noting favourably that The Gambia ‘has made several statements in multilateral settings whereby it clearly addressed the situation of the Rohingya in Rakhine State, including allegations of breaches by Myanmar of the Genocide Convention’,182 although this was no doubt assisted by the fact that The Gambia had also made sure to communicate a Note Verbale to Myanmar a month prior to issuing proceedings.183 Nevertheless, it would now seem that statements in multilateral fora can count towards the establishment of a dispute.184

Turning directly to the question of standing, Myanmar accepted that because of the erga omnes partes character of some obligations under the Convention, ‘The Gambia has an interest in Myanmar’s compliance with such obligations’.185 But Myanmar nevertheless denied that The Gambia had standing, on the basis that such an interest was subsidiary to the right of an injured State to bring an action.186 In other words, Bangladesh (although prevented from doing so by its reservation to Article IX of the Genocide Convention) was the only State with the right to bring the case. The Court rejected this argument outright, stating:

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 … 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 ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.187

While the votes were unanimous, Judge Xue—consistent with her dissent in Belgium v Senegal—detailed her objection to The Gambia’s standing in her Separate Opinion. In particular, Judge Xue opined:

Lofty as it is, the raison d’être of the Genocide Convention … does not, in and by itself, afford each State party a jurisdictional basis and the legal standing before the Court. Otherwise, it cannot be explained why reservation to the jurisdiction of the Court under Article IX of the Convention is permitted under international law. Those States which have made a reservation to Article IX are equally committed to the raison d’être of the Genocide Convention. The fact that recourse to the Court cannot be used either by or against them in no way means that they do not share the common interest in the accomplishment of the high purposes of the Convention.188

However, Judge Xue appears to be making a category error; jurisdiction and standing are quite separate questions. A State party to the Convention may well reserve the right not to consent to the jurisdiction of the Court, but this in no way materially affects the interest that all other States have with ensuring compliance. It simply removes one mechanism from the enforcement toolbox. Indeed, Judge Xue is correct that the Court is ‘not the only way to protect the common interest of States parties in the accomplishment of the high purposes of the Convention’.189

Finally, it is not clear what Judge Xue meant by granting The Gambia standing ‘would put to a test Article 48 of the [ASR]’,190 although reading these comments together with an earlier passage of the Separate Opinion where Judge Xue states that Myanmar’s position ‘reflects the existing rules of international law, lex lata’,191 one can interpolate the meaning that Article 48 is an as yet untested progressive development of the law rather than mere codification. Crawford as Special Rapporteur did acknowledge this, but suggested that it was ‘progressive development, within a narrow compass, of a concept which ought to be broadly acceptable’.192 The Court’s jurisprudence since the finalization of the ASR in 2001 would tend to suggest that it has indeed found this development acceptable.

In addition to quite visibly confirming the right of standing in the common interest, subject to any arguments that may be raised at the Preliminary Objections phase, the Court’s decision in The Gambia v Myanmar provisional measures order also opens the door to intervention in the case. Indeed, notwithstanding that parties to the Genocide Convention have a right of intervention pursuant to Article 63, the Court’s approach to obligations erga omnes could be read as endorsement of the argument that the ‘legal interest’ required for Article 62 intervention should be no higher than that required for establishing standing. And as Crawford wrote, in the case of erga omnes obligations, ‘every State has standing’.193

6 Conclusions

As Crawford once noted, ‘paradoxically, bilateralism remains the operational mode even in today’s increasingly multilateral international affairs’.194 But on balance, the tide seems to be turning, and the Court is adapting to the new multilateral paradigm. Judge Crawford’s particular vision for the International Court of Justice was an institution of practical, flexible and tangible justice. This meant not restricting the role of the Court to purely bilateral disputes but appreciating the need for adaptation to the modern multilateral reality of international legal relations. Crawford saw the Court as an institution offering effective justice. While ‘not a conseil constitutionnel’ it is the principal judicial organ of the United Nations ‘with its own power of appreciation’.195 Crawford brought this vision to the ASR as well, and while often referred to as a pragmatic compromise, the ASR reflects that pragmatism and idealism can go hand in hand.

Crawford’s legacy as Special Rapporteur, scholar and Judge is a positive and influential one, particularly in respect of his views in favour of an expanded role for the Court in respect of communitarian norms. But the Court continues to move slowly on that path, with the occasional step backwards. To conclude in Crawford’s own words:

Peremptory norms are genuinely concerned to establish a hierarchy of value. Obligations erga omnes are concerned with standing to complain, ie with the interests of all States and other members of the international community in ensuring compliance with fundamental norms … But are those two not themselves aspects of the same fundamental idea? Looking at the general trend, one can certainly discern a move from bilateral to multilateral obligation, as key issues in international relations cease to be resolved by individual States acting alone or on a bilateral basis with selected partners. But there are also moves in the other direction: the centre cannot always hold. Newer hierarchical elements remain in some cases contested, or are invoked only to be distinguished. At the same time traditional framework principles such as sovereignty and consent continue to play a significant role. Whether the emphasis should be placed more on the continuing struggle between community value and State consent, or on the gradual shift in the direction of a genuine multilateralism, remains an open question.196

7 Postscript

Since this article was finalised, the Court has issued a Preliminary Objections judgment in which it confirmed The Gambia’s standing to bring the case and held that “any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes”: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Preliminary Objections), Judgment dated 22 July 2022, 37. The Court has also received 15 Article 63 intervention declarations in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). This latter development supports the author’s view that such interventions may be used as an act of co-operative condemnation for breaches of obligations erga omnes.

Acknowledgments

This article is dedicated to James’s fond memory. I was his Research Associate at the Lauterpacht Centre for International Law from 2010–2012 and had the privilege of his supervision for my LLM dissertation.

1

James Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law (Brill, 2014) (‘Chance, Order, Change’).

2

Ibid 183.

3

James Crawford, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Recueil des cours 325, 346 (‘Multilateral Rights and Obligations’).

4

James Crawford, ‘Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts’ in Ulrich Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, 2011) 224, 225 (‘An Appraisal of Article 48’).

5

‘Document A/56/10: Report of the International Law Commission on the work of its fifty-third session (23 April–1 June and 2 July–10 August 2001)’ [2001] Yearbook of the International Law Commission 1, 25 (‘ASR’).

6

Ibid 126.

7

CR 2010/20, 43.

8

Ibid 43.

9

See Pamela Bookman, ‘Arbitral Courts’ (2021) 61(2) Virginia Journal of International Law 161.

10

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (Jurisdiction and Admissibility) [2016] ICJ Rep 255 (‘Marshall Islands v India’); Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (Jurisdiction and Admissibility) [2016] ICJ Rep 552 (‘Marshall Islands v Pakistan’); Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833, 856–7 (‘Marshall Islands v United Kingdom’). Given that the salient aspects of these judgments are identical, for ease of reading, reference will be made only to the decision in Marshall Islands v United Kingdom unless it is necessary to distinguish between the decisions.

11

Application of the Convention on the Prevention and Punishment of the Crime of Geno- cide (The Gambia v Myanmar) (Provisional Measures) [2020] ICJ Rep 3 (‘The Gambia v Myanmar’).

12

For analysis of norms erga omnes, see Claudia Annacker, ‘The Legal Regime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public Law 131.

13

For analysis of norms erga omnes partes, see Yoshifumi Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68(1) Netherlands International Law Review 33. See also Marco Longobardo, ‘Genocide, Obligations Erga Omnes, and the Responsibility to Protect: Remarks on a Complex Convergence’ (2015) 19(8) The International Journal of Human Rights 1199; Marco Longobardo, ‘The Standing of Indirectly Injured States in the Litigation of Community Interests before the ICJ: Lessons Learned and Future Implications in Light of The Gambia v Myanmar and Beyond’ (2021) 23 International Community Law Review 1, 22–7 (‘The Standing of Indirectly Injured States’).

14

Crawford, Chance, Order, Change (n 1) 186. See also Longobardo, ‘The Standing of Indirectly Injured States’ (n 13) 4–6.

15

Priya Urs, ‘Obligations erga omnes and the question of standing before the International Court of Justice’ (2021) 34(2) Leiden Journal of International Law 505, 505. See also Christian Dominicé, ‘The International of States for Breach of Multilateral Obligations’ (1999) 10(2) European Journal of International Law 353, 354.

16

Max Planck Encyclopedia of Public International Law, ‘Unilateralism/Multilateralism’ (online at 6 May 2022) [4].

17

Crawford, ‘An Appraisal of Article 48’ (n 4) 224, 226.

18

See Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des cours 233.

19

Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 3 (‘Barcelona Traction’).

20

Ibid 32.

21

Crawford, ‘An Appraisal of Article 48’ (n 4) 229. Indeed, Crawford’s views on this were very consistent over time. In 2000, prior to the conclusion of the ARSIWA, he wrote: ‘In cases of integral obligations … all states parties are to be regarded as having a legal interest in the performance of the obligation and as legally affected by its breach’. See also James Crawford, ‘The Standing of States: A Critique of Article 40 of the ILC’s Draft Articles on State Responsibility’ in Mads Adenas (ed) Judicial Review in International Perspective: Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer Law International, 2000) 23, 43.

22

Eglantine Cujo, ‘Invocation of Responsibility by International Organizations’ in James Crawford et al (eds), The Law of International Responsibility (Oxford University Press, 2010) 976.

23

Crawford, ‘Multilateral Rights and Obligations’ (n 3) 447.

24

James Crawford, Special Rapporteur, Fourth Report on State Responsibility, UN Doc A/CN.4/517 (2 and 3 April 2001) [36].

25

Samantha Besson, ‘Community Interests in International Law’ in Eyal Benvenisti and Georg Notle (eds), Community Interests Across International Law (Oxford University Press, 2018) 36, 43.

26

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 53, 64. See also Andreas Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation—An Attempt at a Re-appraisal’ (2005) 74(3) Nordic Journal of International Law 297.

27

ASR (n 5) arts 40–1.

28

‘New Trends in the Enforcement of erga omnes Obligations’ (2000) 4 Max Planck Yearbook of United Nations Law 1, 42. See also Anne-Laure Chaumette, ‘The International Community as a Whole’ in James Crawford et al (eds), The Law of International Responsibility (Oxford University Press, 2010) 1025; Crawford, ‘Multilateral Rights and Obligations’ (n 3) 344; Crawford, ‘An Appraisal of Article 48’ (n 4) 29.

29

Samantha Besson, ‘Community Interests in International Law’ in Eyal Benvenisti and Georg Notle (eds), Community Interests Across International Law (Oxford University Press, 2018) 36, 37. Crawford once observed in his wry style that ‘[i]t is not too much to say that the terminology in this area is an unresolved shambles’: Crawford, Chance, Order, Change (n 1) 197.

30

See also Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35; Christian Tams, ‘International Community’ in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law: Contributions to Disciplinary Thought (Edward Elgar Publishing, 2019) 505; Beatrice Bonafé, ‘Adjudicative Bilateralism and Community Interests’ (2021) 115 American Journal of International Law Unbound 164.

31

The Court has recognised that in the case of a breach of a norm erga omnes obligations of non-recognition pertain, but those are not discussed here. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep 16, 56; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 199 (‘Wall’). See also Crawford, Chance, Order, Change (n 1) 199; Crawford, ‘An Appraisal of Article 48’ (n 4) 231; Geir Ulfstein, ‘The International Judiciary’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press, 2009) 133; Hélène Fabri, ‘The Eternal Question of Ius Cogens Running Into Procedural Hurdles’ (2021) 24 Austrian Review of International and European Law 141, 155: ‘proclamations remain rhetorical as long as there is no proper procedure to implement the proclaimed rights’.

32

Crawford, ‘Multilateral Rights and Obligations’ (n 3) 451.

33

Longobardo, ‘The Standing of Indirectly Injured States’ (n 13) 11.

34

Sometimes known as actio popularis, see Max Planck Encyclopedia of International Procedural Law, ‘Actio Popularis’ (online at 6 May 2022) (‘Actio Popularis’). See also Rüdiger Wolfrum, ‘Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, 2011) 1132, 1139.

35

SS ‘Wimbledon’ (Britain et al v Germany) [1923] PCIJ (ser A) No 1, 15 (‘Wimbledon 2’).

36

Ibid.

37

Ibid 20.

38

Crawford, ‘An Appraisal of Article 48’ (n 4) 224, 228.

39

Treaty of Peace between the Allied and Associated Powers and Germany, singed 28 June 1919 (entered into force 10 January 1920) (‘Versailles Peace Treaty’). In Article 380, ‘The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and war of all nations at peace with Germany on terms of entire quality’. See SS ‘Wimbledon’ (Britain et al v Germany) [1923] PCIJ (ser A) No 1, 11, 13 (‘Wimbledon 1’).

40

Wimbledon 2 (n 35) 18.

41

Ibid.

42

Ibid.

43

Ibid 33.

44

‘Actio Popularis’ (n 34) [11].

45

‘Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands Question’ League of Nations Official Journal (1920) Special Supplement No 3, 17. See also Crawford, ‘An Appraisal of Article 48’ (n 4) 224, 228–9.

46

South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase Judgement) [1966] ICJ Rep 6.

47

James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) 24 (‘ILC Articles’).

48

South-West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 321 (‘South-West Africa 1962’).

49

South-West Africa (Ethiopia v Union of South Africa; Liberia v Union of South Africa) (Order) [1961] ICJ Rep 13.

50

South-West Africa 1962 (n 48) 326.

51

Ibid 326–7.

52

International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128; South-West Africa-Voting Procedure (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of hearings of petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23. For a general history and overview of the cases, see Makane Mbengue and Najib Messihi, ‘The South West Africa Cases: 50 Years Later’ in Zeray Yihdego, Melaku Desta and Fikremarkos Merso (eds) Ethiopian Yearbook of International Law 2016 (Springer International Publishing, 2017) 11 (‘The South West Africa Cases’).

53

South-West Africa 1962 (n 48) 327.

54

Ibid 347.

55

South-West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 18 (‘South-West Africa (Second Phase)’).

56

Ibid 19.

57

South-West Africa 1962 (n 48) 347: ‘The Court concludes that Article 7 of the Mandate is a treaty or convention still in force within the meaning of Article 37 of the Statute of the Court and that the dispute is one which is envisaged in the said Article 7 and cannot be settled by negotiation. Consequently, the Court is competent to hear the dispute on the merits’.

58

Ibid.

59

Ibid.

60

South-West Africa (Second Phase) (n 55) 28–9.

61

Mbengue and Messihi, ‘The South West Africa Case’ (n 52) 11, 17. For an explanation of the politics underlying the South-West Africa (Second Phase) decision, see Victor Kattan, ‘Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South West Africa Cases’ (2015) 5(2) Asian Journal of International Law 310.

62

Crawford, ‘Multilateral Rights and Obligations’ (n 3) 409; Crawford, Chance, Order, Change (n 1) 196.

63

Crawford, ‘An Appraisal of Article 48’ (n 4) 230.

64

Barcelona Traction (n 19) 32.

65

Crawford, Chance, Order, Change (n 1) 199.

66

Crawford cites the following articles as examples: Article 8 of the Slavery Convention, Article 38 of the Refugee Convention, Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, and Article 33 of the European Convention on Human Rights. See Crawford, ‘An Appraisal of Article 48’ (n 4) 224, 238. See also Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, 2011) 379, 384 (‘Individual States’); André Nollkaemper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23(3) European Journal of International Law 769, 789.

67

Tams, ‘Individual States’ (n 66) 387.

68

ASR (n 5) 34, 36; Crawford, ILC Articles (n 47) 84.

69

On the remedial consequences of this distinction, see Juliette McIntyre, ‘Declaratory Judgments of the International Court of Justice’ (2012) 25 Hague Yearbook of International Law 107, 150 (‘Declaratory Judgments’).

70

James Crawford, ‘Overview of Part Three of Articles on State Responsibility’ in James Crawford et al (eds), The Law of International Responsibility (OUP, 2010) 934 (‘Overview of Part Three’).

71

Crawford, ‘Multilateral Rights and Obligations’ (n 3) 446.

72

South-West Africa (Second Phase) (n 55) 32.

73

Crawford, ‘Overview of Part Three’ (n 70) 934; Ingo Venzke, ‘Public Interests in The International Court of Justice—A Comparison Between Nuclear Arms Race (2016) And South West Africa (1966)’ (2017) 111 American Journal of International Law Unbound 68, 68.

74

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, 334 (Judge Simma) (‘Armed Activities’); Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 449–450; Whaling in the Antarctic, Australia v Japan: New Zealand Intervening (Judgment) [2014] ICJ Rep 226, 251 (‘Whaling’); The Gambia v Myanmar (n 11). See further Urs (n 15); Tanaka (n 13); Tams, ‘Individual States’ (n 66). For an analysis of the Court’s earlier position see Vera Gowlland-Debbas, ‘Judicial Insights into Fundamental Values and Interests of the International Community’ in AS Muller et al (eds) The International Court of Justice, Its Future Role After Fifty Years (Martinus Nijhoff, 1997) 327, 351.

75

Armed Activities (n 74) 334 (Judge Simma).

76

Ibid 190.

77

Armed Activities (n 74) 334, 347–8 (Judge Simma).

78

Obligation to Prosecute or Extradite (n 74).

79

Ibid 432.

80

Ibid.

81

Ibid 439.

82

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’).

83

Ibid art 6(2); Obligation to Prosecute or Extradite (n 74) 428, 454.

84

CAT art 7(1); Obligation to Prosecute or Extradite (n 74) 428–9, 461.

85

Obligation to Prosecute or Extradite (n 74) 449.

86

Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’).

87

Obligation to Prosecute or Extradite (n 74) 461.

88

Ibid.

89

Opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948).

90

Whaling (n 74) 251.

91

Crawford, ‘An Appraisal of Article 48’ (n 4) 235.

92

‘Applicant Instituting Proceedings’ Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (International Court of Justice, General List no 422, 31 May 2010) [32].

93

To paraphrase Crawford’s submission that: ‘Japan does not “own” the whales it catches in the way that Uruguay has sovereignty over its part of the course of the River Uruguay and its banks. The whales of the Southern Ocean are subject to collective regulation on the terms of the Convention’. Whaling (n 74) CR 2013/19, 65.

94

Whaling in the Antarctic (Australia v Japan) (Order) [2013] ICJ Rep 3, 15 (‘Whaling Intervention’).

95

Urs (n 15) 517; Tom Ruys, ‘Legal Standing and Public Interest Litigation—Are All Erga Omnes Breaches Equal?’ (2021) 20 Chinese Journal of International Law 457, 463. See also The Gambia v Myanmar (n 11) 61 (Judge Cançado Trindade).

96

The Gambia v Myanmar (n 11) 32 (Judge Xue).

97

East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 (‘East Timor’).

98

Monetary Gold Removed from Rome in 1943 (Italy v France) (Judgment) [1954] ICJ Rep 19 (‘Monetary Gold’). See also Tobias Thienel, ‘Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle’ (2014) 57 German Yearbook of International Law 321; Zachary Mollengarden and Noam Zamir, ‘The Monetary Gold Principle: Back to Basics’ (2021) 115 American Journal of International Law 41; and Juliette McIntyre, ‘[r]ules are Rules: Reconceiving Monetary Gold as a Rule of Procedure’ (2021) 115 American Joural International Law Unbound 144.

99

East Timor (n 97) 102.

100

Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) (‘Armed Activities (New Application)’) [2006] ICJ Rep 6, 52.

101

Crawford, ‘An Appraisal of Article 48’ (n 4) 224, 238.

102

Ibid 224, 231–2.

103

Ibid 231.

104

Armed Activities (n 74) 334 (Judge Simma); Questions relating to the Obligation to Prosecute or Extradite (n 74) 449–450; Whaling (n 74)251; The Gambia v Myanmar (n 11). See further Urs (n 15); Tanaka (n 13); Tams, ‘Individual States’ (n 66). For an analysis of the Court’s earlier position see Gowlland-Debbas (n 74) 351.

105

Astrid Wiik, Amicus Curiae before International Courts and Tribunals (Hart/NOMOS, 2018) 50.

106

Some suggest the Court should permit amicus curiae when obligations erga omnes are under consideration, on the basis that the Court’s intervention practice is too restrictive: Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6(1) Max Planck Yearbook of United Nations Law Online 139, 177; Giorgio Gaja, ‘A New Way for Submitting Observations on the Construction of Multilateral Treaties to the International Court of Justice’ in Ulrich Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (2011, OUP) 665.

107

Statute of the International Court of Justice (‘ICJ Statute’). The full text of the Article is as follows: 62(1) Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 62(2) It shall be for the Court to decide upon this request.

108

Whaling Intervention (n 94) 5. HE Mr Ronny Abraham, President of the International Court of Justice (Speech, Sixth Committee of the General Assembly, 27 October 2017) 1; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure’ (1958) 34 British Yearbook of International Law 1, 124. See also Edvard Hambro, ‘Some Observations on the Compulsory Jurisdiction of the International Court of Justice’ (1948) 25 British Yearbook of International Law 133.

109

The full text of the Article is as follows: 63(1) Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. 63(2) Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it. The Statute of the Permanent Court of International Justice included substantively identical provisions to arts 62 and 63: Statute of the Permanent Court of International Justice arts 62 and 63. The words ‘as a third party’ were deleted from the English version of art 62(1) in 1945, but the change was not deemed to alter the meaning of the Article or be of significance.

110

For a detailed review of the historical development of the intervention procedure, see Shabtai Rosenne, Intervention in the International Court of Justice (Martinus Nijhoff, 1993) 14–38.

111

Alina Miron and Christine Chinkin, ‘Article 63’ in Andreas Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary (OUP, 3rd ed, 2019) 1742, 1743.

112

Robert Bone, ‘Party Rulemaking: Making Procedural Rules through Party Choice’ (2012) 90(6) Texas Law Review 1329, 1378.

113

See Robert Kolb, The International Court of Justice (Hart, 2013) 731; Robert Kolb, The Elgar Companion to the International Court of Justice (Edward Elgar, 2014) 366; Miron and Chinkin, ‘Article 63’ (n 111) 1743.

114

Cf Whaling Intervention (n 94) 41–2 (Judge Gaja). The terms of Article 63 ‘cannot mean that only the intervener will be bound…. the intervener will be bound towards the parties and that the parties will also be bound towards the intervener’.

115

Juan José Quintana, Litigation at the International Court of Justice (Brill, 2015) 955.

116

McIntyre, ‘Declaratory Judgments’ (n 69) 125. See further Shabtai Rosenne, Essays on International Law and Practice (Martinus Nijhoff, 2007) 131 et seq; Kolb, The International Court of Justice (n 113) 742. See also Aegean Sea Continental Shelf Case (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 16–17, where the Court acknowledged that its interpretation of the status of the 1928 Act ‘may have implications’ for the other State parties and similar acknowledgement in Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240, 261.

117

Christine Chinkin, ‘Third-Party Intervention before the International Court of Justice’ (1986) 80 American Journal of International Law 495, 496, 525 (‘Third-Party Intervention’); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2001] ICJ Rep 575, 635–643 (Judge Weeramantry) (‘Indonesia/Malaysia’); Whaling Intervention (n 94) 23 (Judge Cançado Trindade). Cf Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2011] ICJ Rep 420, 450 (Judge Abraham) who considers that under article 62 ‘the third State has a right to intervene so long as it demonstrates that the conditions (or condition) for the exercise of that right are (is) met’ and Kolb, The International Court of Justice (n 113) 732.

118

Miron and Chinkin (n 111) 1688.

119

Mollengarden and Zamir (n 98) 61; Miron and Chinkin (n 111) 1719.

120

Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2011] ICJ Rep 420, 434 citing Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1981] ICJ Rep 3, 12 (‘Continental Shelf’). See also Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2011] ICJ Rep 348, 358.

121

Tania Licari, ‘Intervention under Article 62 of the Statute of the I.C.J.’. (1982) Brooklyn Journal of International Law 267, 270. For a detailed summary of the Court’s interpretation of the phrase over time, see Kolb, The International Court of Justice (n 113) 706–715 and Quintana, Litigation at the International Court of Justice (n 115) 859–867. Kolb calls it a ‘relatively sketchy material condition’ at 704.

122

Beatrice Bonafé, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’ (2012) 25(3) Leiden Journal of International Law 739, 744 (‘Interests’).

123

Eg Monetary Gold (n 98) or East Timor (n 97). However, participation as a party could only occur with the consent of the original parties.

124

Bonafé, ‘Interests’ (n 122).

125

Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure’ (1958) 34 British Yearbook of International Law 1, 126. See also Rosenne, Intervention (n 110) 32.

126

Nollkaemper, ‘Global Public Goods’ (n 66) 785.

127

Paula Wojcikiewicz Almeida, ‘Enhancing ICJ Procedures in Order to Promote Fundamental Values’ in Massimio Iovane, Fulvio M Palombino, Daniele Amoroso and Giovanni Zarra (eds), The Protection of General Interests in Contemporary International Law: A Theoretical and Empirical Inquiry (Oxford University Press, 2021) 241–42. See also Paula Wojcikiewicz Almeida, ‘Enhancing ICJ Procedures in Order to Promote Global Public Goods: Overcoming the Prevailing Tension between Bilateralism and Community Interests’ (Conference Paper, European Society of International Law, April 16 2018).

128

Miron and Chinkin, ‘Article 62’ (n 111) 1709. See also Tanaka (n 13) 28.

129

Kolb, The Elgar Companion to the International Court of Justice (n 113) 364.

130

Wimbledon 1 (n 39).

131

Whaling Intervention (n 94).

132

Ibid 37 (Judge Cançado Trindade).

133

Whaling Intervention (n 94) 251. It was also the basis of the unsuccessful applications of Fiji in the 1973 Nuclear Tests cases: Nuclear Tests (Australia v France) (Order on Application by Fiji for Permission to Intervene) [1973] ICJ Rep 320 and Nuclear Tests (New Zealand v France) (Order on Application by Fiji for Permission to Intervene) [1973] ICJ Rep 324 and El Salvador in the Nicaragua case: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Provisional Measures) [1984] ICJ Rep 215.

134

Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure’ (1958) 34 British Year Book of International Law 1, 127. See also Alexander Fachiri, The Permanent Court of International Justice: Its Constitution, Procedure and Work (Oxford University Press, 1925) 113.

135

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Provisional Measures) [2019] ICJ GL No 178.

136

Ibid 12.

137

Ibid 14, citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) [2015] ICJ Rep 3, 47.

138

Priya Pillai, ‘Canada and The Netherlands: New Intervention in The Gambia v Myanmar at the International Court of Justice’ Opinio Juris (Web Page, 3 September 2020) <http://opiniojuris.org/2020/09/03/canada-and-the-netherlands-new-intervention-in-the-gambia-v-myanmar-at-the-international-court-of-justice/>.

139

Chinkin, ‘Third-Party Intervention’ (n 117) 512.

140

Fitzmaurice (n 134), 126. See also Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Judgment) [1990] ICJ Rep 92, 124 (‘Land, Island and Maritime Frontier Dispute’) and Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2011] ICJ Rep 420, 475 (Judge Donoghue).

141

Chinkin, ‘Third-Party Intervention’ (n 117), 508.

142

UN International Law Commission Study Group and Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law UN Docs A/CN.4/L.682 and Corr.1 (13 April 2006), 11. See also Rüdiger Wolfrum, ‘Interventions in Proceedings Before International Courts and Tribunals: To What Extent May Interventions Serve the Pursuance ofCommunity Interests?’ in Nerina Boschiero et al (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (TMC Asser Press, 2013) 219, 226.

143

Palchetti (n 106) 177.

144

Bonafé, ‘Interests’ (n 122) 755.

145

Urs (n 15) 523.

146

Markus Benzig, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5(3) The Law and Practice of International Courts and Tribunals 369, 399–400.

147

Tanaka (n 13) 28.

148

See Gaja (n 106) 665; M Giorgio Gaja, Rapporteur, Institut de Droit International: Obligations Erga Omnes in International Law (Resolution) (August 27 2005), art 4; Giorgio Gaja, ‘The Protection of General Interests in the International Community’ (2011) 364 Recueil des cours 9 (‘Protection of General Interests’).

149

Gaja, Protection of General Interests (n 148) 119.

150

Continental Shelf (n 120) 30–31 (Judge Oda). See also Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1984] ICJ Rep 3, 110 et seq (Judge Oda); Land, Island and Maritime Frontier Dispute (n 142) 138 et seq (Judge Oda); Indonesia/Malaysia (n 117) 609 et seq (Judge Oda).

151

Tullio Treves, ‘Aspects of Legitimacy of Decisions of International Courts and Tribunals’ in Rüdiger Wolfrum and Volker Röben (eds) Legitimacy in International Law (Springer, 2008) vol 194, 186: ‘[J]udicial policy has to do with the way in which the exercise of the judicial function should balance the functions of settling disputes with that of stating, clarifying, and developing international law’. See also Georges Abi-Saab, ‘Discussion Following Presentations by Treves and Müllerson’ in Rüdiger Wolfrum and Volker Röben (eds) Legitimacy in International Law (Springer, 2008) vol 194, 210.

152

Armed Activities (New Application) (n 100) 31–33, 52.

153

On this practice, see Juan J Quintana, ‘Procedure Before the ICJ: A Note on the Opening (or Not) of New Cases’ [2010] (9) Law and Practice of International Tribunals 115.

154

Opened for signature 1 July 1968, 729 UNTS 161 (entered into force 5 March 1970). Article VI provides: ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control’.

155

‘Application Instituting Proceedings’ Obligations Concerning Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (International Court of Justice, General List No 159, 24 April 2014), 26 (‘Marshall Islands v Pakistan’); ‘Application Instituting Proceedings’ Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (International Court of Justice, General List No 158, 24 April 2014), 28 (‘Marshall Islands v India’).

156

(Advisory Opinion) [1996] ICJ Rep 226.

157

Marshall Islands v Pakistan (n 155) 26; Marshall Islands v India (n 155) 28.

158

Ibid.

159

‘Memorial of the Marshall Islands’ Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (International Court of Justice, 12 January 2015)[13].

160

The UK noted in passing that the erga omnes nature of the obligation would make no difference to its main argument, which was the lack of notice pursuant to Article 43 of the ARSIWA: ‘Preliminary Objections of the United Kingdom of Great Britain and Northern Ireland’ (Marshall Islands v United Kingdom) (International Court of Justice, 15 June 2015)[24].

161

‘Counter-Memorial of Pakistan (Jurisdiction and Admissibility)’ (Marshall Islands v Pakistan) (International Court of Justice, 1 December 2015) 8.

162

Ibid 52.

163

For critical assessments of the ‘dispute’ requirement, see Juliette McIntyre, ‘Put on Notice: The Role of the Dispute Requirement in Assessing Jurisdiction and Admissibility before the International Court’ (2018) 19(2) Melbourne Journal of International Law 546 (‘Put on Notice’); Michael A Becker, ‘The Dispute that Wasn’t There: Judgments in the Nuclear Disarmament Cases at the International Court of Justice’ (2017) 6(1) Cambridge International Law Journal 4; Venzke (n 73).

164

Marshall Islands v United Kingdom (n 10) 846.

165

Ibid 850.

166

Ibid 842.

167

Federica I Paddeu, ‘Multilateral Disputes in Bilateral Settings: International Practice Lags Behind Theory’ (2017) 76 Cambridge Law Journal 1, 3.

168

Venzke (n 73) 68.

169

Ibid 70.

170

Ibid 70.

171

Marshall Islands v United Kingdom (n 10) 1101 (Judge Crawford).

172

Ibid 1102 (Judge Crawford).

173

Ibid 1103 (Judge Crawford).

174

Ibid 1107 (Judge Crawford).

175

Ibid 1096 (Judge Crawford).

176

See Jed Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14(2) International Journal of Law in Context 221, 231–2; Béatrice I Bonafé, ‘Establishing the Existence of a Dispute before the International Court of Justice: Drawbacks and Implications’ (2017) 45 Questions of International Law: Zoom-out 3, 4; Lorenzo Palestini, ‘Forget about Mavrommatis and Judicial Economy: The Alleged Absence of a Dispute in the Cases Concerning the Obligations to Negotiate the Cessation of the Nuclear Arms Race and Nuclear Disarmament’ (2017) 8(3) Journal of International Dispute Settlement 557, 575; Diane Marie Amann, ‘International Decisions: Obligations Concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament’ (2017) 111(2) American Journal of International Law 439, 444; Vincent-Joël Proulx, ‘The World Court’s Jurisdictional Formalism and its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes’ (2017) 30(4) Leiden Journal of International Law 925, 930–1.

177

Paddeu (n 167) 4.

178

‘Application Instituting Proceedings and Request for Provisional Measures’, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (International Court of Justice, General List No 178, 11 November 2019) 6.

179

Ibid 12.

180

It bears noting that the Court heard oral argument relating to Myanmar’s Preliminary Objections in late February 2022. The issue of standing was argued again, and may feature in the Court’s judgment which is forthcoming at the time of writing.

181

The Gambia v Myanmar (n 11) 14.

182

Ibid 11.

183

Ibid. On the de facto obligation of a letter before action, see McIntyre, ‘Put on Notice’ (n 163).

184

Cf Marshall Islands v United Kingdom (n 10) 853–4; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 3, 31.

185

The Gambia v Myanmar (n 11) 16.

186

Ibid.

187

Ibid 17.

188

Ibid 34 (Vice-President Xue).

189

Ibid. On the erga omnes consequences of a State breaching such norms, see Wall (n 32) 199–200.

190

The Gambia v Myanmar (n 11) 34 (Vice-President Xue).

191

Ibid.

192

Crawford, ILC Articles (n 47) 38.

193

Crawford, Chance, Order, Change (n 1) 271.

194

Crawford, ‘An Appraisal of Article 48’ (n 4) 240.

195

Crawford, ‘Multilateral Rights and Obligations’ (n 3) 386.

196

Ibid 478.

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