Erga Omnes Partes Standing after South Africa v Israel

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The International Court of Justice’s provisional measures order in South Africa v Israel has rightly been referred to as a legally and politically significant, if expected, development. Much will be said about it in the coming weeks and months. However, this post will focus on the order’s place within broader trends on standing based on obligations erga omnes partes in the Court’s jurisprudence. Given the striking lack of disagreement on this issue—including from long-time objector Judge Xue—South Africa v Israel may indicate that the previously controversial doctrine is now universally accepted within the Court.

Standing for Obligations erga omnes partes Violations in ICJ Jurisprudence

The terminology of obligations erga omnes partes is based on the Court’s pronouncement in Barcelona Traction that there is a category of obligations in which ‘all States can be held to have a legal interest in their protection; they are obligations erga omnes’ (Barcelona Traction, § 33). This built on the earlier finding in Reservations to the Genocide Convention advisory opinion that certain obligations owed under the Genocide Convention are owed in common, hinged upon ‘a common interest’ (Reservations, pp. 23). This was given operative effect in Belgium v Senegal, wherein the Court drew a comparison between obligations erga omnes partes in the Genocide Convention, based on Barcelona Traction and the Reservations opinion, and those found in the Convention against Torture (CAT). The Court found that all states parties to CAT have an automatic right of standing to bring a claim based on alleged breach of the Convention by another state party, based on the nature of the collective obligations owed (Belgium v Senegal, § 69). Judge Xue objected to this finding, arguing instead that a legal interest based on obligations owed erga omnes partes could not automatically translate into a right of standing without the applicant state being ‘specially affected’ by the breach (Xue Dissent, § 15-18).

The issue has also featured in the context of the Genocide Convention in The Gambia v Myanmar, prompting considerable scholarly attention (see, inter alia, Longobardo, Urs, Hathaway et al). At the provisional measures stage, the majority affirmed that the erga omnes partes nature of the obligations at issue granted The Gambia prima facie jurisdiction, drawing on the earlier Belgium v Senegal decision and rebuffing Myanmar’s arguments to the contrary (The Gambia v Myanmar, Provisional Measures, § 39-42). Judge Xue voted in favour of the provisional measures against Myanmar, however again objected to linking a legal interest based on obligations erga omnes partes and automatic legal standing, averring that the majority’s reasoning was out of step with existing international law (Xue Declaration). The issue got a more robust treatment during the subsequent preliminary objections phase, wherein the majority directly refuted Myanmar’s (and Judge Xue’s) assertions that legal interest and standing ought to be kept separate:

‘The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of obligations erga omnes partes … For these reasons, Myanmar’s purported distinction between the entitlement to invoke responsibility under the Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis in law’ (The Gambia v Myanmar, Preliminary Objections, § 108).

Accordingly, the Court did not require The Gambia to demonstrate that it was ‘specially affected’ by Myanmar’s conduct (ibid, § 111-112). Predictably, Judge Xue dissented forcefully on this issue, rejecting with repeated reference to the Convention’s travaux préparatoires that the drafters of the Convention did not intend for states parties not directly impacted by allegedly genocidal conduct to be able to launch claims such as those put forward by The Gambia (Xue Dissent, § 18-22). Thus, for Judge Xue, the majority decision’s ‘innovative interpretation has extended well beyond the reasonable expectations of the States parties, inconducive to the security and stability of treaty relations’ (ibid, § 25). The same dynamics played out in the November 2023 provisional orders in Canada and the Netherlands v Syria, regarding Syrian conduct under CAT. In two scant paragraphs, the majority affirmed Canadian and Dutch standing for alleged Syrian violations of obligations erga omnes partes under CAT (Canada and the Netherlands v Syria, § 50-51). Voting against the provisional measures orders, Judge Xue once again complained of a conflation of legal interest and standing, adding that such an expansion of the Court’s role in this way ‘would likely weaken the function of the Court as a judicial organ for dispute settlement’ (Xue Declaration, § 7).

Standing and Obligations erga omnes partes in South Africa v Israel

During the provisional measures hearing in South Africa’s present proceedings, Israel chose to leave the question of erga omnes partes standing unaddressed, focusing entirely on whether a ‘dispute’ in the legal sense existed between it and South Africa (Verbatim Record 2024/2, § 11-27). South Africa’s application similarly dedicated little space to the issue, dealing with it in a single paragraph (South African Application, § 16). Following suit, and noting that Israel ‘did not challenge the standing of [South Africa]’, the Court dispensed with the issue in a single substantive paragraph, reaffirming that ‘any State party, without distinction’ may sustain a claim based on obligations erga omnes partes (South Africa v Israel, § 33). What is remarkable, however, is that there was full (if tacit) agreement on this issue not only between the parties, but also on the bench. Thus, neither Judge Sebutinde’s dissent nor Judge ad hoc Barak’s separate opinion take issue with the question of standing.

Most surprising, though, is Judge Xue’s statement: ‘I concur with my colleagues in upholding South Africa’s standing, on a prima facie basis, in instituting proceedings against Israel’ (Xue Declaration, §1). It is not particularly unusual for Judge Xue to support the imposing of provisional measures based on such claims—she did so in The Gambia v Myanmar—but there is a notable and significant shift in the Judge’s declaration in South Africa v Israel. In a striking yet obscure passage, she continues:

‘While the law and practice are still evolving, for a protected group such as the Palestinian people, it is least controversial that the international community has a common interest in its protection. In my view, this is the very type of case where the Court should recognize the legal standing of a State party to the Genocide Convention to institute proceedings on the basis of erga omnes partes to invoke the responsibility of another State party for the breach of its obligations under the Genocide Convention’ (ibid, § 4).

What precisely the Judge means here is open to interpretation. Earlier in her declaration, Judge Xue refers to General Assembly resolution 57/107, which recognises that ‘the United Nations has a permanent responsibility towards the question of Palestine’ (ibid, § 2), suggesting that this, in tandem with the scale of the devastation in Gaza (ibid, § 3) provides for South African standing. It may therefore be that Judge Xue sees the international responsibility towards the Palestinian people as sui generis, and in some sense distinct from that of the Rohingya or Syrian people. Alternatively, perhaps the Judge is basing this distinction on an implicit gravity assessment based, once again, on the scale of the atrocities in Gaza. Otherwise, perhaps the Judge has finally been convinced that standing erga omnes partes is legitimate, yet this is difficult to square with her rejection of the same concept regarding CAT three months earlier in Canada and the Netherlands v Syria.

What comes next?

These three cases before the ICJ—The Gambia v Myanmar, Canada and the Netherlands v Syria, and South Africa v Israel—remain ongoing, and while the standing issue has been resolved in the first, it may still be raised again in the latter two. It remains to be seen whether Syria and Israel will challenge erga omnes partes standing in later stages, or indeed if Syria will decide to engage at all in its case. In any event, it seems unlikely that the trend which began in Belgium v Senegal will now be reversed. This does not mean that things will proceed in a straight line, however. It is likely, for example, that we will see a refining of Judge Xue’s position in subsequent preliminary objections proceedings which may be instigated by Syria and Israel. In particular, if Judge Xue does consider the plight of the Palestinian people to be in some sense legally unique, this will hopefully be clarified.

Unaddressed in these recent legal developments, however, is the question of standing for obligations erga omnes outside of the framework of multilateral treaties such as CAT and the Genocide Convention. Whether an analogy can be drawn between standing for obligations erga omnes partes and obligations erga omnes based in customary international law or jus cogens norms remains to be seen. Yet, the jurisprudential trends at the ICJ discussed in this post indicate that such an extension is, at the very least, possible.

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Alexandra Hofer says

February 1, 2024

Hi Pearce, thanks for this!
It was interesting to read Judge Xue's personal declaration and her nuanced assessment.

I think the following sentence from para. 2 is also relevant: "This
responsibility requires that the United Nations, including its principal judicial organ, ensures that the Palestinian people are protected under international law, particularly protected from the gravest crime — genocide."

In essence, Judge Xue sees the Palestinian people as specially protected by the UN (which she also writes at para.5 "a protected group such as the Palestinian people"), which would justify the ICJ accepting South Africa's standing.
The case against Israel might have some interesting parallels with the South West Africa cases against South Africa.

Best wishes,
Alexandra