An Analysis of Principle of Erga Omnes Partes with Special Reference to the Case of Belgium v. Senegal, 2012
Prajwol Bickram Rana
Published 2018-04-30
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Abstract
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.
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References
- Hugh Thirlway, The International Court of Justice, Oxford University Press, Oxford, 2016, p.3.
- Karin Oellers-Frahm, ‘The International Court of Justice: Article 92’, in Bruno Simma et. al. (eds), The Charter of United Nations: A Commentary, Oxford University Press, 3rd edition, United Kingdom, 2012, para 31.
- See International Court of Justice, ‘Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)’, 20 July 2012, International Court of Justice Official Website, available at https://www.icj-cij.org/en/case/144, accessed on 10 October 2018.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S 85, 10 December 1984, art 30.
- Statute of International Court of Justice, 1055, 33 U.N.T.S.993, 1945, art 36(2).
- Inna Uchkunova, ‘Belgium v. Senegal: Did the Court End the Dispute between the Parties?’, European Journal of International Law, 2012 available at https://www.ejiltalk.org/belgium-v-senegal-did-the-court-end-the-dispute-between-the-parties/, accessed on 10 June 2018.
- International Law Commission Report on the Work of Its Fifty-Third Session, Commentary on Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. U.N. Document10 A/56/10, chapter. IV.E.1. 2001, p.126.
- International Law Commission Report on the Work of Its Fifty-Third Session, Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), Supplement No. 10 U.N. Document A/56/10, 2001, art 48(1)(a).
- Questions Relating to the Obligation to Prosecute or Extradite, Belgium v Senegal, Merits, 2012, ICJ Rep, p. 422, para 68.
- 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 valuesand 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 erga omnes partes not of erga omnes. International Law Institute of International Law, ‘Obligations Erga Omnes in International Law’, 27 August 2005, Institute De Droit International available at http://www.idi-iil.org/app/uploads/2017/06/2005_kra_01_en.pdf, accessed on 10 June 2018.
- Any State other than an injured States is entitled to invoke the responsibility of another state if (a) the obligation breached is owed to the international community as a whole. ARSIWA (n 9), art 48(1) (b).
- Belgium v Senegal (n 10), dissenting opinion of Judge Xue, p. 574.
- Ibid, p. 576.
- Ibid, p. 575.
- Ibid.
- Ibid.
- Belgium v Senegal (n 10),separate opinion of Judge Skotnikav, p. 483.
- 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.