An Analysis of Principle of Erga Omnes Partes with Special Reference to the Case of Belgium v. Senegal, 2012

In the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal case), the International Court of Justice for the very fi rst time declared the country's standing before the court on the basis of erga omnes partes as admissible. The court found that Belgium had the standing to claim the responsibility of Senegal for the alleged breach under the Convention against Torture on the basis of being a party of the same convention. The court described erga omnes partes as the obligation that the state party has to all the other state parties of the convention, the court further stated that it arises due to the common interest of the state parties of a convention. Many sitting judges of the court rejected the reasoning of the majority decision and some gave a dissenting opinion. The present paper assesses the concept of erga omnes partes in the public international law and the legal consequences of erga omnes partes in the future development of public international law. The scope of the present paper is limited within the issue of admissibility of the case with the specifi c focus on the concept of erga omnes partes and does not deal with the merits or other issues raised before the court.


Background:
The International Court of Justice (ICJ) was established by the United Nations Charter as the principal judicial organ of the United Nations. 1 The court came into existence in February 1946 after the election of its first members. 2 The International Court of Justice from its inception along with its predecessor, Permanent Court of Justice, has been actively involved in the development of international law. The court has extensively discussed the concept of use of force, nationality, state responsibility, and others. The ICJ's jurisprudence has been widely recognized as one of the sources for development and 'codification of international law' 3 .
On 19 February 2009, an application was filed by Belgium instituting proceedings against Senegal in the registry of the International Court of Justice. 4 The case was filed in relation to the alleged breach of Convention against Torture by Senegal for neither prosecuting nor extraditing Mr. Hissene Habre, who was granted asylum by the Senegalese government. When the case was registered in the court, Senegal had raised the issue of lack of jurisdiction and admissibility of the claim brought by Belgium. The court declared that it had the jurisdiction on the basis of Article 30 of Convention against Torture 5 and Article 36(2) of Statute of International Court of Justice 6 . The objection raised by Senegal in regards to the admissibility of Belgium's claim was refused by the court and the court declared Belgium's claim as admissible. The court based its reasoning on the principle of the erga omnes partes i.e. obligation of a state party of a convention towards another state party to fulfill the obligations of that particular convention. It was the first time in the history of ICJ that it recognized the principle of erga omnes partes as one of the basis for standing in the case. 7 This paper will analyze the judgment of the court in the Belgium v. Senegal case with the special focus on the legal consequences of the erga omnes partes in the public international law.

The principle of erga omnes partes:
The principle of erga omnes partes can be traced out on the Articles on Responsibility of States for Internationally Wrongful Act (ARSIWA), 2001. Article 48 (1) (a) of ARSIWA has been interpreted as an obligations erga omnes partes by the International Law Commission in the commentary of ARSIWA. 8 Article 48(1) (a) stipulates that: Any State other than an injured State is entitled to invoke the responsibility of another state in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group. 9 The group of state this provision mentions about can be state parties of a convention. All the parties of a convention have the collective interest in regard to that particular convention, for. e.g. collective interest of the state parties of the Convention against Torture is to prevent the acts of torture and if they occur, to punish the wrongdoer. Therefore, this provision stipulates that each state party of the convention has the responsibility towards another state party of the same convention for the fulfillment of its obligation under that convention which is known as erga omnes partes in the legal sense.
There is another concept, erga omnes which seems similar to erga omnes partes but they have some differences. The Institute of International Law has included the definition of erga omnes partes within the definition of erga omnes. 11 The "erga omnes obligation" is an obligation of a state towards the international community as a whole whose basis is customary law, on the other hand, "erga omnes partes'" is the obligation of a state towards the parties of a particular convention only whose basis is conventional law. The erga omnes obligation can be traced in Article 48(1) (b) of ARSIWA. 12

Facts of the Case:
Hissene Habre, former Chadian President was accused of committing torture, extrajudicial executions, enforced disappearance, rape, and sexual slavery during his rule as a President of Chad. After he was deposed from the position of the President, he came to Senegal as a political asylum seeker. Seven Chadian nationals along with the association of victims filed a case in the Senegalese court against Habre. Though he was kept under house arrest for some period, the Dakar Court of Appeal annulled the proceedings against him. On the other hand, on 30 November 2000, a Belgian national of Chadian origin filed a case against Habre with a Belgian investigating judge. The Belgium court had started the investigation and during the process of the investigation, it had asked help from Chad and Senegalese Government. On 19 September 2005, the Belgium investigating judge issued an international warrant for the arrest of Mr. Habre. The Belgium government transferred the international warrant to Senegal and requested for the extradition of Habre but the Senegalese court refused to extradite him. The main contention of this case is that Belgium requested Senegal to extradite Mr. Habre four times but they did not receive the positive response. Belgium wanted Senegal either to prosecute Mr. Habre in their court or to extradite him to Belgium for Belgium proceedings. Belgium proceeds to the ICJ claiming that Senegal had breached the Convention against Torture by neither prosecuting nor extraditing him.

11
According to the Institute of International Law erga omnes is a) an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action or b) an obligation under a multilateral treaty that a State party to the treaty owes in any given case to all the other States parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables all these States to take action. The second definition is of

Facts in relation to admissibility issue:
The basis on which the Senegal raised the issue of admissibility of Belgium's claim was that the victims for whom Mr. Habre was made attributable were not of Belgium nationality when the acts were executed. Belgium refutes Senegal by arguing that Belgian courts intend to exercise passive personal jurisdiction. It gives another argument that under the convention any state party is entitled to claim the performance of an obligation by another state party.

The judgment of the Court:
The Court first considers the arguments raised by Belgium as to whether a State being a party to the Convention suffices to bring a claim against another state in the court or not. The court interprets the preamble of the Convention against Torture to look at the object and purpose of that convention and according to the court's findings, the object and purpose were to make 'effective the struggle against torture throughout the world'. According to the court, the state parties to the Convention have a common interest to ensure that acts of torture are prevented and if they occur, their authors do not enjoy impunity. All the other state parties have a common interest in compliance with the obligation by the State in whose territory the offender is present. Here, the court refers to the obligations erga omnes partes, which the court defines as the obligation that is owed by any State party to all the other States parties of the Convention. The court further states that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes. Hence, the court declares that Belgium's claim is admissible.

Analysis:
There were many instances where the states had demanded the standing before the court on the basis of erga omnes obligations. Though the court had extensively discussed erga omnes obligations, it has not accepted it as the sole ground for the standing before the court. But the erga omnes partes which had not been widely discussed by the court in the past was easily accepted as a ground for standing. The court's decision is criticized on this very point that erga omnes partes lacks state practice, therefore, it should not have been accepted by the court at that moment.
Judge Xue also gives a similar dissenting opinion, she mentions that instead of interpreting Article 5(1) of the Convention, the court bases its reasoning on erga omnes partes which lacks the established jurisprudence of the court 13 and the state practice 14 . She further explains that erga omnes partes is a substantive matter and the right to bring a claim is a procedural matter. 15 She gives the example of erga omnes obligation which 13 Belgium v Senegal (n 10), dissenting opinion of Judge Xue, p. 574. 14 Ibid, p. 576. 15 Ibid, p. 575. has been extensively referred by the court in a number of cases but in none of them has the court mentioned that solely for the existence of a common interest a State can bring a claim in the court. 16 It is one thing that each state party has an interest in the compliance of the obligations, and it is another thing that every state has standing to bring a claim against another state. 17 She further states that the concept of erga omnes partes, in this case, has made the difference between the claimant and other state parties of the convention blurred because the court has given general right to invoke the responsibility.
Judge Skotnikov in his separate opinion mentions that court should not have applied erga omnes partes. He raises a question to the judgment of the court, does 'the judgment lead to a conclusion that a common interest is one and the same thing as a right of any State party to invoke the responsibility of any other State party before this Court?' 18 .
Commentators have raised the question of consequences of obligation erga omnes partes when a state has made a reservation in the treaty. 19 If a state has made a reservation, that will prevent the obligations erga omnes partes from becoming binding on that state. Hence, the erga omnes partes has importance only when that obligations are erga omnes in nature because in such a situation the parties will have customary obligations and not merely conventional obligations which could be breached by mere reservation.
The primary legal consequences of this judgment could be described as follows: First, any state party could invoke the breach of responsibility by another state party. Second, the state party which invokes the responsibility under the basis of erga omnes partes has ius standi to bring a claim. Third, the element of 'injured state' is no more needed to invoke the responsibility of another state when the claim is brought under the basis of erga omnes partes.
All states are sovereign and have an equal sovereign right, therefore, one state should not be made responsible towards another state but this is the basic idea of erga omnes partes. Though in theory it is said all have an equal sovereign right but it is always the big powerful country that has more sovereign power. In this case, also it is one kind of domination by powerful country over other countries. Senegal lacked finance for the trial of Mr. Habre but Belgium was constantly repeating that Senegal cannot take the excuses of finance. These arguments show the dominating behavior of powerful countries over other countries. International law works for the wishes of powerful countries. If the United States of America does not enforce the decision of the ICJ in the case of Nicaragua v. U.S.A., no one could do anything to give pressure to the U.S.A. But when it comes to less powerful countries like Senegal even when it had assured that it would prosecute Mr. Habre but still it was dragged to the ICJ to give more pressure. 16 Ibid. 17 Ibid. 18 Belgium v Senegal (n 10), separate opinion of Judge Skotnikav, p. 483. 19 Diego Germán Mejías-Lemus, 'On 'obligations erga omnes partes' in public international law: 'erga omnes' or 'erga partes '?', vol. 10, no 1, Ars Boni et Aequi p.177,2014, p.180.