The Rohingya genocide case (the Gambia v Myanmar): breach of obligations Erga Omnes Partes and the issue of standing
On 23 January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not direct...
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| Format: | Article |
| Language: | English English |
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IIUM Press
2021
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| Online Access: | http://irep.iium.edu.my/94680/1/94680_The%20Rohingya%20genocide%20case_WoS.pdf http://irep.iium.edu.my/94680/2/94680_The%20Rohingya%20genocide%20case.pdf http://irep.iium.edu.my/94680/ http://journals.iium.edu.my/index.php/iiumlj https://doi.org/10.31436/iiumlj.v29i1 |
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| Summary: | On 23 January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligation erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a hot topic for legal discourse. The present paper, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law, whether such an obligation may arise from any type of multilateral treaty, and any provision in a multilateral treaty. To this end, the paper analyses the jurisprudence of the ICJ, the case law of international human rights courts, and the work and valuable commentary of the International Law Commission on Art 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The paper concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty, and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty. |
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