Third Party Fundamental Human Rights Erga Omnes Obligations Claims Before the International Court of Justice: A Critique of the The Gambia v Myanmar Decision

Abstract

Can states allegedly committing genocide on their own populace be held responsible in the International Court of Justice (ICJ) by a third-party on a fundamental human rights erga omnes obligations claim? The ICJ recently released a procedural decision against Myanmar’s preliminary objection to The Gambia’s legal standing before them on a third-party fundamental human rights erga omnes obligations claim in Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This paper argues that the ICJ were correct in dismissing Myanmar’s objection and deciding to allow the case to continue to the merits phase. This paper examines how the principles of third-party fundamental human rights erga omnes obligations claims have developed over the last 78 years in the context of genocide. Examining the past is essential to understanding the present and predicting the future. This paper’s central critique of the ICJ’s decision and of the present law regards the ICJ’s failure to guide future Benches on the policy balancing act that is at the core of third-party fundamental human rights erga omnes obligation claims law. Guidance is required in balancing the policies of protecting the international community’s common interests and preventing an unmanageable proliferation of disputes in the ICJ. Balancing these policies is crucial to developing the law justly while protecting the functioning of the ICJ.