Standing Before the International Court of Justice: Erga Omnes Partes Obligations and Actio Popularis

Legal standing, or locus standi, refers to the right or capacity to bring an action or to appear in a court.[1]  It is a common thread of judicial requirement in both national and international law spanning across the legal practice of multiple jurisdictions.

It is the legal basis for individuals, entities, or states to bring a claim or seek redress before international courts or tribunals. Legal standing refers to the legal interest or capacity that a party must have in order to initiate legal proceedings and be heard on a particular matter.^[2] 

Specifically, it helps to ensure that only those with legal interest can institute an action before the court. Without a proof of standing, the case is stranded and prayers cannot be granted. In Belgium v. Spain 1962 I.C.J. 50, [“Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962)], in a judgment delivered on 5 February 1970, the Court found, among others, that Belgium had no legal standing to exercise diplomatic protection of shareholders in a Canadian company in respect of measures taken against that company in Spain. The Court accordingly rejected Belgium’s claim. In order to appear in court or to take part in a proceeding, therefore, the applicant must have standing.^[3]

Proof of Legal Standing

There are, at least, two principal ways by which an applicant might prove legal standing before an international court or tribunal. The first is by fulfilling the requirement of sufficient nexus between itself and the injury, while the second is that the claim has been brought in a representative capacity, particularly pursuant to an erga omnes obligation through actio popularis.

Proof of Sufficient Nexus

Locus standi depends on the relationship between the applicant seeking redress and the right that has been violated. The general rule is that it is only injured states which are able to bring international claims against other states for a breach of some international obligation.^[4] A party seeking a legal remedy must demonstrate to the court, sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.^[5] In other words, there shall be a sufficient nexus between the injury caused and the person approaching the court.^[6]

This fundamental principle was strictly applied in the second phase of the South West Africa case (1966)] ICJ Rep at p 6, when the International Court of Justice^[7] held that Liberia and Ethiopia had no legal interest in South Africa’s treatment of the inhabitants of Namibia. In that case, although both states had been original members of the League of Nations and therefore had certain rights under the Mandate agreement between the League and South Africa, the Court held that enforcement of the Mandate was a matter for the League alone and individual members suffered no injury and therefore had no independent right to bring claims arising out of breaches of its provisions.

Action in Representative Capacity

International law has established a category of erga omnes^[8] obligations,[9] which apply to all states. Whereas the defaulting state in ordinary obligations is responsible toward particular interested states (e.g., other parties to the treaty that has been breached), in the breach of erga omnes obligations, all states have an interest and may take appropriate actions in response.^[10] Erga omnes partes obligations are those in whose fulfilment all state parties to a convention have a legal interest because their subject matter is of importance to the international community.

The notion of obligations erga omnes partes was first expressly endorsed by the International Court of Justice^[11] in the case of Belgium v. Senegal.^[12] The ICJ then drew parallels between the UNCAT^[13] and the Genocide Convention and concluded that they are similar in nature. For example, for both Conventions, state parties do not have an “interest of their own; they merely have . . . a common interest.”^[14]

At issue in that case was whether Belgium’s status as a party to the UNCAT was sufficient in itself to justify legal standing before the ICJ in the absence of a special interest. The majority in the judgment concluded in the affirmative on the basis that the object and purpose of the Convention requires state parties to the UNCAT to comply with certain, core obligations. In turn, all state parties have a common interest to achieve the objective of the convention.

Also, in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)[15], the ICJ accepted New Zealand’s claim that as a party to the International Convention for the Regulation of Whaling (‘ICRW’), it had a direct interest in the construction that might be placed upon the Convention by the Court in its decision in the proceedings. In that case, Australia instituted proceedings against Japan in respect of “Japan’s continued pursuit of a large‑scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (‘ICRW’), as well as its other international obligations for the preservation of marine mammals and the marine environment”.

Actio Popularis – The Class Action

Actio popularis may be defined as a ‘right resident in any member of a community to take legal action in vindication of a public interest.^[16] It was injected into proceedings and discussions of questions of international law before the ICJ in the course of the South West Africa cases.^[17]

In its classic dictum of the Barcelona Traction case^[18], the ICJ affirmed that all States can be held to have a legal interest in the observance of obligations erga omnes.^[19] The ICJ therefore recognizes the locus standi or standing of all States in respect of breaches of obligations concerning genocide and aggression, slavery and racial discrimination, and the basic rights of the human person.^[20] The court further confirmed that this list includes breaches of the right of self-determination in East Timor.^[21]

Therefore, while erga omnes partes obligation creates the requisite legal interest needed by a party under a convention in respect of certain obligations, the principle of actio popularis creates the legal basis for the interest to be pursued before an international court like the International Court of Justice.

Party to the Dispute

Standing is the right to bring a dispute before the court. Thus, the existence of a dispute to which the applicant is a party is a prerequisite for legal standing.

Article 36 (3) of the United Nations Charter provides, “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.[22]” Thus, a state that is not a party to a dispute is precluded from standing, ab initio.

Conclusion

In proving legal standing before an international court like the ICJ, certain requirements must be satisfied. The matter must have been brought by a party to the dispute who has suffered special injury as a result of the actions of the respondent, or can prove that an erga omnes partes obligation has been breached by the other party.

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[1] What Is Legal Standing? | UNCAC Coalition. uncaccoalition.org/get-involved/working-groups/victims-of-corruption-working-group/database-on-legal-standing/what-is-legal-standing/. Accessed 6 Jan. 2024.

[2] “Standing in International Law.” UOLLB First Class Law Notes, uollb.com/blog/law/standing-in-international-law. Accessed 6 Jan. 2024.

[3] Standing and Involvement in Legal Proceedings – LawRight. www.lawright.org.au/legal-information/going-to-court/standing-and-involvement-in-legal-proceedings. Accessed 8 Jan. 2024.

[4] Hillier, T. (1998). Sourcebook on Public International Law (1st ed.). Routledge-Cavendish. https://doi.org/10.4324/9781843143802. 7 Locus standi and the right to bring claims, p. 1

[5] Wikipedia Contributors. “Standing (Law).” Wikipedia, Wikimedia Foundation, 27 Jan. 2020, en.wikipedia.org/wiki/Standing_(law). Accessed 8 Jan. 2023.

[6] “Locus Standi: Meaning and Essential Ingredients of Locus Standi.” Legal Study Material, 6 Dec. 2021, legalstudymaterial.com/locus-standi-meaning-and-essential-ingredients-of-locus-standi. Accessed 8 Jan. 2023.

[7] Hereinafter referred to as the “ICJ”.

[8] Latin: “toward all”.

[9] “Erga Omnes Obligations.” Oxford Reference, doi:10.1093/oi/authority.20110803095756413. (“It follows from this that the breach of such an obligation is of concern not only to the victimized state but also to all the other members of the international community. Thus, in the event of a breach of these obligations, every state must be considered justified in invoking the responsibility of the guilty state committing the internationally wrongful act.”)

[10] “International Law – International Cooperation.” Encyclopedia Britannica, www.britannica.com/topic/international-law/International-cooperation. Accessed 7 Jan. 2023.

[11] Hereinafter referred to as “ICJ”.

[12] Questions Relating to Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 I.C.J. 422, ¶ 68 (July 20).

[13] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[14] Chow, Pok Yin S. ” On Obligations Erga Omnes Partes. “https://www.law.georgetown.edu/international-law-journal/wp-content/uploads/sites/21/2021/06/GT-GJIL210018.pdf. Accessed 7 Jan. 2024.

[15] Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) https://www.icj-cij.org/case/148. Accessed 11th Feb. 2024.

[16] Andrea, Gattini. “Actio Popularis.” Max Planck Encylopedia of International Procedural Law, 1 Feb. 2019, doi:10.1093/law-mpeipro/e1167.013.1167.

[17] South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa): Preliminary Objections, [1962] ICJ Reports 319; South West Africa Cases: Second Phase, [1966] ICJ Reports.

[18] Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment of 5 February 1970, ICJ Reports 1970 3 para 33.

[19] The Dictum – ‘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 […] 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.’ [Barcelona Traction (n 26) para 33.]

[20] McGarry, Brian. “Obligations Erga Omnes (Partes) and the Participation of Third States in Inter-State Litigation.” The Law and Practice of International Courts and Tribunals, vol. 273–300, no. 2, 21 July 2023, doi:10.1163/15718034-bja10099.

[21] East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90.

[22] Particularly the provision of Article 36 of the Statute of the International Court of Justice on the jurisdiction of the court.

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