On Oct. 10 and 11, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings on a case alleging that the Syrian government has repeatedly committed flagrant violations of international law since the beginning of its ongoing civil war. In June 2023, Canada and the Netherlands jointly instituted proceedings before the Court claiming that the government led by President Bashar al-Assad has flouted its obligations under the Convention against Torture (CAT) through its abhorrent treatment of detainees – characterized by inhumane detention conditions, enforced disappearances, sexual and gender-based violence, and violence against children – as well as its use of chemical weapons. This week’s hearings will be devoted to oral argument on the request for the indication of provisional measures submitted by Canada and the Netherlands on June 8, in which the countries sought urgent action to preserve and protect rights the rights owed to them under the CAT while the full merits case is pending.
Syria has long faced widespread condemnation by the international community for its actions, but it has not faced a hearing before an international court – until now. This new case is the latest use of an important new tool for enforcing human rights, and it demonstrates how that new tool might offer accountability where it has, until now, been largely absent.
The Erga Omnes Partes Standing Revolution
The stage was set for the case against Syria by a prior case brought by The Gambia against Myanmar. In 2019, The Gambia sought to hold Myanmar accountable at the ICJ for its alleged genocidal acts against the Rohingya. The Gambia had no special interest in, or even a connection to, the alleged violations. The Court nonetheless allowed The Gambia’s claim to proceed based solely on its status as a party to the Genocide Convention. The Gambia argued that the obligations enshrined in the Genocide Convention were “obligations erga omnes,” in the sense that each State party has an interest in compliance with them by all other States parties. And in a landmark ruling issued on July 22, 2022, the Court agreed, allowing The Gambia’s case to proceed.
The Court’s decision to accept The Gambia’s standing was revolutionary – it represented the first time that the Court accepted erga omnes partes standing as the sole basis of standing for a non-specially affected State. In our forthcoming article, A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing, we argue that the development of this standing doctrine offers a promising solution to the systematic underenforcement of human rights treaties. Indeed, the erga omnes partes doctrine has the potential to transform what has long been the Achilles heel of international human rights law – the protection of legal rights shared by all – into an asset for enforcing human rights treaties.
But this principle is not new. The long dormant principle of erga omnes obligations was first introduced by the ICJ in Barcelona Traction in 1970, when the Court recognized the existence of a class of obligations that are “the concern of all States,” which all “States can be held to have a legal interest in their protection.” The Court identified several examples including the prohibition against aggression and genocide, as well as “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” The principle then attained new prominence in the ICJ’s 2012 Obligation to Prosecute decision, where the Court not only expanded the class of erga omnes obligations to include the prohibition on torture, but more crucially – for the first time – concluded that a State had standing on the basis of the erga omnes partes principle. In other words, the Court found no need to assess whether Belgium, which had instituted the proceedings, was specially affected because “[i]f a special interest were required,” for bringing a claim concerning an alleged breach of the CAT, “in many cases no State would be in the position to make such a claim.” It thus held that “any State party to the [CAT] may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes . . . to bring that failure to an end.”
The Case Against Syria and the Promise of Erga Omnes Partes Standing
When the Netherlands first announced its intention to hold Syria accountable in September 2020, the Syrian government unsurprisingly objected, arguing that the Netherlands had no right to bring the action. Neither Canada nor the Netherlands have been specially affected by the alleged human rights violations, in the sense that they have suffered no concrete injury. Yet Canada and the Netherlands argued that simply by virtue of their status as States parties to the CAT, they have the right to bring this case before the Court under the doctrine of erga omnes partes standing, as found in the case against Myanmar.
While the present case against Syria offers the ICJ an opportunity to further elaborate on the doctrine of erga omnes partes standing, we already know two threshold requirements that must be satisfied before a State may rely upon this form of standing. First, because the Court lacks true compulsory jurisdiction, the treaty at issue must contain a provision providing for mandatory jurisdiction over disputes arising from the treaty. Second, erga omnes partes standing can only arise where the alleged violations are of an erga omnes partes character. Although this requirement is thus far less developed, our analysis of the Court’s jurisprudence suggests that a violation only implicates the erga omnes partes principle where (i) the treaty creates a common interest for the States parties; and (ii) the treaty provision invoked is “relevant” to the purported common interest. Whether a common interest exists can be gleaned from the object and purpose of the treaty, and while the Court has not stated as much outright, we propose that a treaty provision is relevant to such common interest if it would defeat the object and purpose of the treaty if breached.
Importantly, while States have only relied on erga omnes partes standing in the context of the CAT and the Genocide Convention, the framework that we draw from the Court’s decisions is not limited to just these treaties. Indeed, we have identified at least six other human rights treaties that satisfy the threshold requirements of erga omnes partes standing, including the Slavery Convention, the Convention on the Elimination of All Forms of Racial Discrimination, and the Refugee Convention. Having already classified several human rights obligations as erga omnes in nature, and having previously recognized the value of erga omnes partes standing as a gap-filler – permitting offending States to be held accountable where no other State would otherwise have standing to do so – such treaties are natural candidates for the expansion of erga omnes partes standing. Indeed, we suggest that the erga omnes partes framework could even extend to certain environmental and weapons treaties. The already impactful doctrine of erga omnes partes thus has the potential to be a revolutionary mechanism, permitting States to meaningfully enforce perennially under-enforced areas of international law.
Like any extraordinary development in international law, this doctrine is not free from challenges and questions. An increase in disputes on the basis of erga omnes partes standing might prompt States to abandon existing human rights treaties. Any expansion of erga omnes partes standing runs the risk of undermining the legitimacy of the Court, potentially decreasing compliance, or perpetuating existing inequities in the enforcement of international law. On a practical level, the Court will need to contemplate issues of evidentiary challenges, reparations, and cases brought by multiple States with potentially competing interests. But we maintain that the benefits offered by erga omnes partes standing outweigh its potential drawbacks. One of the key dilemmas of international law has always been whether and how international law obligations can be enforced against States that refuse to comply. In the current case against Syria, the doctrine of erga omnes partes standing may offer an answer, potentially providing justice to past victims and hope for the future of human rights.