Can Erga Omnes Partes Obligations Satisfy the ‘Interest Of A Legal Nature’ Requirement of Article 62 ICJ Statute?

[Dr Yvonne Breitwieser-Faria is a Lecturer at Curtin Law School, and has published on atrocity law, international human rights law, and State responsibility]

In the last two years, we have seen an unprecedented number of interventions filed in cases before the International Court of Justice which concern allegations of serious human rights violations, genocide, torture, or war crimes. A considerable number of third States have intervened in The Gambia v Myanmar, Ukraine v Russia, and South Africa v Israel, all of which invoke Article IX of the Genocide Convention and erga omnes obligations as providing jurisdiction of and standing to the Court. These cases concern community interests vis-à-vis the prevention and prohibition of genocide. The respective interventions have provoked much commentary. 

The possibility for third States to intervene in a case before the ICJ is provided for by Articles 62 and 63 of the ICJ Statute. Article 62 of the ICJ Statute provides the possibility for third States to submit a request for intervention as a party or a non-party should they have ‘an interest of a legal nature which may be affected by the decision in the case’. Intervention under this provision is at the discretion of the Court. Any subsequent judgment in the case will not be binding on a State intervening as a non-party. Article 63 of the ICJ Statute, on the other hand, allows member States of a multilateral treaty to intervene in cases involving the interpretation of such a treaty. Intervention under this provision is a right, which is exercised as a non-party, however, any subsequent judgment on the construction of the multilateral treaty at the heart of the case will be binding on intervening States. 

The majority of these interventions in recent years are based on Article 63. This year, however, three States have requested permission to intervene in accordance with Article 62: Nicaragua and Palestine have separately applied for permission to intervene in South Africa v Israel, and most recently Poland submitted its application for permission to intervene in Ukraine v Russia. For the ICJ to grant permission, it is necessary for the States to demonstrate that they hold a relevant legal interest, that the intervention is proper and that the legal interest requires protection, which ‘is not provided by the relative effect of decisions of the Court under Article 59 of the Statute’ (Territorial and Maritime Dispute Judgment at para 87). Two main arguments can be elucidated from the applications: first, that an interest of a legal nature can be founded on the obligations owed to all State parties of the Genocide Convention, and secondly, that such an interest can be established by those States specially affected in the sense of Article 42(b)(i) ARSIWA. This raises the question of whether the existence of erga omnes partes obligations within a multilateral treaty can satisfy the ‘interest of a legal nature’ requirement of Article 62. 

Legal Interest Founded in Erga Omnes Partes Obligations

All three States base their application on their ‘interest of a legal nature that stem from the rights and obligations imposed by the Genocide Convention on all States Parties’ and flow from ‘the universal character both of the condemnation of genocide and of the cooperation required “in order to liberate mankind from such an odious scourge”’ (see eg Nicaragua’s application at para 13). The Court previously confirmed that all State parties to the Genocide Convention have a common interest ‘to ensure the prevention, suppression and punishment of genocide’, which are ‘owed by any State party to all the other States parties’.  As a result, ‘each State party has an interest in compliance with [the erga omnes partes obligations imposed by the Genocide Convention] in any given case’ (The Gambia v Myanmar Provisional Measures Order para 107).  The fact that a State has standing to initiate a community interest case before the ICJ based on erga omnes partes obligations does not remove, but rather supports, the existence of a legal interest of that State and its right to file an application for the permission to intervene under Article 62. If every State party to a multilateral treaty containing community interests has a legal interest which provides for standing before an international judicial body – such as Article IX of the Genocide Convention – then every State party of that treaty arguably also possesses a ‘interest of a legal nature which may be affected by the decision in the case’ contemplated by Article 62.  The legal interest of Nicaragua, Palestine, and Poland – or any other State party to the Genocide Convention – is therefore based in the fulfilment of the obligations assumed under the multilateral treaty. This was further reaffirmed by the ICJ regarding obligations arising from the Torture Convention, where the Court noted that ‘[a]ll the States parties “have a legal interest” in the protection of the rights involved’ (Belgium v Senegal at para 68).

In its recent advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the ICJ also makes note of legal consequences for other States: referring most notably to erga omnes obligations, the ICJ noted that States are ‘not to recognise, and not to render aid or assistance in maintaining, the situation created by measures that are illegal under international law’ (para 277; see also paras 278-79). While these are additional obligations incurred by other States in the event of a serious breach of a peremptory norm in the sense of Article 40 ARSIWA rather than of a breach of erga omnes (partes) obligations, this distinction is, theoretically, one without significant effect as all peremptory norms are also considered to be erga omnes obligations. States therefore have an interest of a legal nature which may be affected by the decision in the case where erga omnes (partes) obligations are concerned as a serious breach by a State results in additional obligations of other States. On the other side of the same coin, a decision by the ICJ may also affect the support States are currently providing to one of the parties of a dispute as a result of erga omnes (partes) obligations and peremptory norms breached by the other party (see eg Poland’s application at paras 17-42) as a prior judicial pronouncement is not required for obligations under Article 41 ARSIWA to arise.

The ICJ previously noted that both the dispositive part of a judgment as well as the reasoning behind it can affect the legal interest of third States (see Sovereignty over Pulau Ligitan and Pulau Sipadan para 47).  Where an application for permission to intervene concerns the application or fulfillment of a convention which contains community interests, as well as its construction or interpretation, an intervening State may be able to demonstrate a legal interest which may be affected by the decision in the case they seek to intervene in. It may be sufficient to base a legal interest in the objective of finding Israel responsible for violations of the Genocide Convention, and that Ukraine is not, to satisfy their erga omnes partes obligations of prevention and punishment in accordance with Article I of the Genocide Convention.

Legal Interest Founded in Article 42(b)(i) ARSIWA

Palestine’s legal interest, which may be affected by a decision in the case, is less contentious. The State submitted both a declaration of intervention under Article 63 and an application requesting permission to intervene in accordance with Article 62, in the cumulative and alternative. According to the Court, if a State wishes to intervene as a non-party,

Article 62 requires the interest relied upon by the State seeking to intervene to be of a legal nature, in the sense that this interest has to be the object of a real and concrete claim of that State, based on law, as opposed to a claim of a purely political, economic or strategic nature. But this is not just any kind of interest of a legal nature; it must in addition be possible for it to be affected, in its content and scope, by the Court’s future decision in the main proceedings.

Territorial and Maritime Dispute Judgment on Costa Rica’s Application for Permission to Intervene at para 37

It is therefore not necessary for a State which intervenes as a non-party, as Palestine and Poland are, ‘to establish that one of its rights may be affected; it is sufficient for that State to establish that its interest of a legal nature may be affected’ (Territorial and Maritime Dispute Judgment at para 26). 

Not only does Palestine have an interest as afforded to every State party of the Genocide Convention, but it arguably also has a special interest and is specially affected in the sense of Article 42(b)(i) ARSIWA as far as the Palestinian people are ‘immediate victims of genocide’ taking place on its territory (Palestine’s application at para 26). In its commentary, the ILC noted that ‘even in cases where the legal effects of an internationally wrongful act extend by implication to the whole group of States bound by the obligation or to the international community as a whole, the wrongful act may have particular adverse effects on one State or on a small number of States’, as can be seen in the conflict in Gaza. Palestine has a legal interest that will arguably be directly affected by the proceedings at every stage before the Court.

Conclusion

Although more common than declarations of intervention – at least until recently – applications for permission to intervene in accordance with Article 62 are rare; even rarer is the Court granting such an application (with only three States having been successful in their applications to date). The ICJ has not, however, reached a decision on the admissibility of the interventions in South Africa v Israel nor has it had opportunity to consider Poland’s most recent intervention in Ukraine v Russia. It therefore remains to be seen whether the Court agrees that erga omnes partes obligations are sufficient to fulfil the requirement of Article 62.