THE GAMBIA v MYANMAR: ICJ PRONOUNCES ON KEY ISSUES IN INTERNATIONAL LAW

On 22 July 2022, the International Court of Justice (ICJ) dismissed all preliminary objections raised by Myanmar against a claim brought by The Gambia alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The judgment confirms that the ICJ will go on to rule on the merits of The Gambia v. Myanmar. The ICJ's judgment also provides guidance on key issues in international dispute settlement, particularly in relation to claimant State standing and establishing a "dispute" for jurisdictional purposes.

Background

The Gambia instituted proceedings against Myanmar on 11 November 2019, alleging that Myanmar's treatment of the Rohingya minority group constituted continuing violations of the Genocide Convention. The ICJ indicated provisional measures in its order of 23 January 2020, which ordered Myanmar to ensure compliance with the Genocide Convention, preserve evidence connected with allegations of genocide, and report regularly to the ICJ on its adherence to the order.

Judgment

Myanmar raised four preliminary objections in response to The Gambia's claim, all of which were rejected by the ICJ. This post focuses on the ICJ's approach to Myanmar's second preliminary objection on standing and to its fourth on the existence of a dispute, before discussing the ICJ's treatment of Myanmar's remaining preliminary objections. The ICJ's judgment was accompanied by a declaration from Judge ad hoc Kress, which discussed, among other things, the factual context of the replacement of the Agent and Alternate Agent representing Myanmar during the proceedings. This issue is beyond the scope of this post.

Standing and erga omnes partes obligations

A key issue in The Gambia v. Myanmar was whether a State party to the Genocide Convention had to be particularly impacted by a breach in order to have standing to bring a claim. Myanmar argued that this was the case, and that The Gambia's claim was therefore inadmissible because the Genocide Convention did not contemplate claims by States parties which had not been "injured".

Myanmar contended that The Gambia lacked standing to bring a claim concerning acts affecting non-Gambians, and that any standing The Gambia might possess would have been ancillary to that of Bangladesh. Bangladesh borders Myanmar and was barred in Myanmar's view from instituting proceedings because of its reservation to Article IX of the Genocide Convention, the compromissory clause which gives the ICJ jurisdiction to decide States parties' disputes.

The ICJ rejected these arguments, reaffirming the Genocide Convention's status as a treaty with obligations owed by each State party to all others collectively (erga omnes partes). In such a treaty, each State party "has an interest in compliance with [these obligations] in any given case", and all States parties have a common interest in the fulfilment of the treaty's purposes. Recalling its Reservations to the Genocide Convention advisory opinion (1951), the ICJ distinguished the Genocide Convention from typical treaties more focused on the "contractual balance between rights and duties".

The character of obligations erga omnes partes meant that The Gambia had standing to bring a claim "regardless of whether a special interest can be demonstrated". Its claim was distinct from a diplomatic protection claim brought on behalf of its nationals. Furthermore, the ability of a third State such as Bangladesh to bring a claim was irrelevant.

The existence of a "dispute"

Another important aspect of the ICJ's judgment was its approach to the existence of a "dispute" for the purposes of Article IX of the Genocide Convention. Myanmar argued that the ICJ lacked jurisdiction, or alternatively should hold the case inadmissible, since no dispute existed with The Gambia when it instituted proceedings. Myanmar submitted that establishing a dispute required the parties to have had "mutual awareness" of their opposing legal views. This was said to entail positive opposition from the respondent State. Myanmar also argued that the parties had not previously articulated their positions with sufficient specificity to establish a dispute.

The ICJ was unpersuaded by these arguments. The ICJ reaffirmed that the existence of a dispute "is a matter of substance and not… form or procedure", and that the "mutual awareness" test proposed by Myanmar did not reflect the law. The ICJ was clear that, in certain circumstances, a dispute can be inferred from a respondent State's silence.

Moreover, the ICJ held that the statements of the parties at the 2018 and 2019 UN General Assembly general debates, and an 11 October 2019 Note Verbale sent by The Gambia to Myanmar, demonstrated a dispute. The ICJ construed these General Assembly statements in the context of reports of the Independent International Fact-Finding Mission on Myanmar (the Fact-Finding Mission) established by the UN Human Rights Council. The ICJ treated The Gambia's references to an "accountability mechanism" and to an ICJ claim concerning the Rohingya, as well as Myanmar's criticism of the Fact-Finding Mission reports, as indicative of an opposition of legal views. This was put beyond doubt by The Gambia's Note Verbale, which expressly alleged violations of the Genocide Convention.

Myanmar's remaining preliminary objections

Myanmar raised two further preliminary objections, one of which was that The Gambia was improperly acting as a proxy for the Organisation of Islamic Cooperation. The ICJ dispensed with this objection. It held that a claimant State "may have sought and obtained financial and political support" from an international organisation without jeopardising its position as to jurisdiction, and that nothing on the facts supported an abuse of process or other admissibility objection.

Finally, Myanmar argued that the ICJ lacked jurisdiction due to Myanmar's reservation to Article VIII of the Genocide Convention, which provides a right to States parties to call upon the UN's "competent organs" to act against genocide. Through its reservation, Myanmar had declared when it first ratified the Genocide Convention that Article VIII did not apply to it. Myanmar argued that, consequently, The Gambia could not rely on Article IX to seise the ICJ, the UN's principal judicial organ. The ICJ held that properly interpreted, Article VIII was not relevant to ICJ claims. Article VIII covered UN organs which addressed genocide as a matter of political, rather than legal, responsibility, and Myanmar had made no additional reservation to Article IX.

Comment

The significance of the ICJ's preliminary objections judgment in The Gambia v. Myanmar extends beyond the particular context of the Genocide Convention. The judgment builds on the approach to claimant State standing and obligations erga omnes partes employed by the ICJ in Belgium v. Senegal (2011) in relation to the Convention Against Torture. The ICJ's approach to the existence of a dispute will also be of relevance to claimant and respondent States alike. The result reached may be contrasted with that from the Marshall Islands (2016) cases (see here, here and here), the first in which the ICJ held it lacked jurisdiction due to the absence of a dispute. As interests relevant to the international community as a whole become increasingly implicated in litigation before international courts and tribunals, The Gambia v. Myanmar is likely to constitute a salient reference point for these key threshold issues.

For further information, please contact Andrew Cannon, Partner, Anthony Crockett, Partner, or your usual Herbert Smith Freehills contact.

The authors would like to thank Jefferi Hamzah Sendut for his assistance with the article.