Gambia’s Standing to Bring a Claim Against Myanmar Under the Genocide Convention
On January 23, 2020, the UN’s International Court of Justice (“ICJ”) ordered Myanmar to take actions to protect the Rohingya, a Muslim minority that critics argue has been subjected to state-sanctioned genocide.1 In response, Gambia brought a claim against Myanmar under the Genocide Convention,2 a treaty to which Myanmar and Gambia are both parties.3 The ICJ’s order addressed one of the main points of contention: whether Gambia, as a party not directly affected by the genocide, has standing to bring a claim under the Genocide Convention.4 This issue of standing gets to the heart of international law and treaty interpretation, especially as it pertains to state responsibility for internationally wrongful acts.5
Myanmar argued before the ICJ that Bangladesh, not Gambia, has standing to sue under the Genocide Convention, as it is Bangladesh that is directly experiencing the effects of a vast exodus of Rohingya fleeing from Myanmar.6 Notably, Myanmar argued that “it is the right of an injured State to decide if, and eventually how, to invoke the responsibility of another State, and that the right of non-injured states to invoke such responsibility is subsidiary.”7 Myanmar further argued that Bangladesh is prevented from bringing suit because of its declaration under Article IX of the Genocide Convention, which requires the consent of all parties to a dispute involving Bangladesh before it is brought before the ICJ.8 Beyond this declaration, pundits have contended that Bangladesh may have hesitated to bring a claim because it would undermine a controversial bilateral agreement signed between Bangladesh and Myanmar authorizing repatriation of Rohingya that currently reside in Bangladesh camps.9 Contrarily, Gambia argued that it had standing under the convention because the convention’s obligations are erga omnes partes – that is, the obligations are shared among all parties, and thus any state is entitled to enforce the treaty against another state, regardless of how they are impacted by the other state’s actions.10
The ICJ held that the principle of erga omnes partes prevails against Myanmar’s direct effect theory.11 Specifically, the court opined that, “[i]n view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented” and that consequently all obligations promulgated in the Genocide Convention are owed by each state party to all other parties.12 This holding seems to be consistent with the fundamental objectives of the Articles on Responsibility of States for Internationally Wrongful Acts, which have been regularly applied by the ICJ.13 Indeed, Parts One and Two of the Articles clarify that while the specifically injured state has priority in invoking responsibility, the injured state is not the only one that may impose responsibility for the wrongful act of another state.14 Because Bangladesh, despite its priority, never brought a claim, the ICJ properly invoked the fundamentals of international law on state responsibility and erga omnes partes when holding that Gambia had standing to bring its claim against Myanmar.15
Noah Parson is a staff member of Fordham International Law Journal Volume XLIII and the incoming managing editor of Volume XLIV. This is a student blog post and in no way represents the views of the Fordham International Law Journal.1 Scott Neuman, Myanmar Must Prevent Genocide of Rohingya, U.N. Court Rules, NPR (Jan. 23, 2020, 7:49 AM), https://www.npr.org/2020/01/23/798821883/myanmar-must-prevent-genocide-of-rohingya-u-n-court-rules.
2 See Andrew Boyle, ICJ Orders Preliminary Relief in Myanmar Genocide Case, Just Security (Jan. 28, 2020), https://www.justsecurity.org/68307/icj-orders-preliminary-relief-in-myanmar-genocide-case/.
3 See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 1021.
4 Boyle, supra note 2.
5 See James Crawford, Articles on Responsibility of States for Internationally Wrongful Acts 1 (2001) (on file with the United Nations Audiovisual Library of International Law), https://legal.un.org/avl/pdf/ha/rsiwa/rsiwa_e.pdf.
6 See Application of Convention on Prevention and Punishment of Crime of Genocide (Gam. v. Myan.), Order, ¶ 39 (Jan. 23, 2020) [hereinafter The Gambia v. Myanmar], https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf; see also Rohingya Crisis: The Gambia Accuses Myanmar of Genocide at Top UN Court, BBC News (Nov. 11, 2019), https://www.bbc.com/news/world-asia-50375739.
7 The Gambia v. Myanmar, ¶ 39.
8 Id.; Convention on the Prevention and Punishment of the Crime of Genocide, supra note 3.
9 See Humayun Kabir Bhuiyan, Why Didn’t Bangladesh Lodge the Case with ICJ?, Dhaka Trib. (Dec. 13, 2019, 10:24 PM), https://www.dhakatribune.com/bangladesh/2019/12/13/why-didn-t-bangladesh-lodge-the-case-with-icj; see also Mohammad Iqbal, Rohingya Refugee Crisis Intensifies: Are the Two Neighboring Nations Heading for a Possible Military Confrontation? 10 (Oct. 25, 2019) (unpublished manuscript) (on file with the Social Science Research Network), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3475249 (describing the agreement between Myanmar and Bangladesh).
10 The Gambia v. Myanmar, ¶ 40.
11 Id. at ¶¶ 41-42.
12 Id. at ¶ 41.
13 See Crawford, supra note 5, at 7.
14 Id.
15 See Gambia v. Myanmar, ¶ 42.