| The question of whether a non-injured state can obtain standing to take legal action in the International Court of Justice(hereinafter referred to as "the Court")against another state that violates its obligation for an internationally wrongful act has been a controversial issue in the academia and the practice of the Court.In the Belgium v.Senegal judgment in 2012,the Court bypassed Belgium’s arguments regarding its status of an injured state and deduced Belgium’s standing derived from obligations erga omnes partes.And later in its Judgement of Gambia v.Myanmar,Preliminary Objection in 2022,the Court recognized for the first time the standing of a non-injured state derived from obligations erga omnes partes,when the non-injured state Gambia had not argued in the application that its interests were directly injured.While the debate over obligations erga omnes partes and the standing derived from such obligations has been going on for years,this latest move by the Court has reignited the discussion.However,little scholarly attention has been paid to the individual opinions of the judges.Judges may issue opinions on the Court’s judgments,including declarations,separate opinions and dissenting opinions,which are important for the development of international law.Since the Court gradually recognized the standing derived from obligations erga omnes partes in the 2012 and 2022 judgments,this article focuses on the two cases,reviewing the judges’ views on this standing in their declarations,separate opinions,and dissenting opinions.Taking into account the room for discretion for the Court’s future judgments left by the judges’ individual opinions,the article seeks to answer three-questions:1.is the standing derived from obligations erga omnes partes justifiable to the judges through their individual opinions?2.how will the cases involving obligations erga omnes partes be heard by the Court?3.what inspirations can the Court’s recognition of the standing derived from obligations erga omnes partes bring to China?Through the individual opinions of the judges,this article aims to interpret the standing of non-injured states before the Court from a different perspective and to fill the gaps in the existing research.Apart from the preface in Chapter 1 and the conclusion in Chapter 5,the paper is divided into three chapters.Chapter 2 reviews the relationship and development of obligations erga omnes partes and the standing of a state.Traditionally,for a state to obtain standing before the Court,issues for consideration include whether its substantive rights and interests were directly injured,whether the damaged rights and interests were protected by relevant international law,and whether the applicant bore the corresponding international obligations.The concept of obligations erga omnes,or obligations erga omnes partes first appeared in the obiter dictum of Barcelona Traction case in 1970,and its interpretation had been enriched in subsequent cases at the Court.The concept was later included in the Draft Articles on Responsibility of States for Internationally Wrongful Acts(hereinafter referred to as "Draft Articles").For a very long time,the Court did not address the standing derived from such obligations in cases involving obligations erga omnes partes,but since the Belgium v.Senegal judgment in 2012,the Court’s attitude changed gradually,holding that states parties to a treaty share common interests in the compliance of the obligations erga omnes partes in the treaty,and that when a state party to the treaty is in breach of its obligations erga omnes partes,the other states parties do not need to substantiate its special interests to obtain the standing before the Court.Chapter 3 makes comments on the individual opinions of the judges in the 2012 and 2022 cases.The views of the judges on the standing derived from the obligations erga omnes partes vary.Dissenting judges argue that the Court’s approaches to the standing are contrary to its precedent cases;that the Court’s teleological approach to the interpretation of the treaty leaves the Court’s reasoning on the standing flawed;that the Court has not properly addressed the relations between the erga omnes character of a treaty provision and the reservation made by states parties to the jurisdiction of the Court;that Draft Articles,on which the Court based its reasoning,has not yet become customary international law,and that the Court has been in breach of the literal meanings of Draft Articles in recognizing such a standing;that the recognition of such standing might also trigger more reservations by states to the jurisdictional provisions of the treaties.The supporting judges,on the other hand,argue that the recognition of such standing would better serve the interests of justice;that the standing derived from such obligations obtained by a state was commensurate with the substantive interests the state could acquire;that precedent cases had made clear that the rules of jurisdiction were not implicated with the erga omnes character of a rule;that the reservation to a jurisdictional clause by an injured State should not affect the right of a non-injured State to take legal action before the Court to the interests of the states parties as a whole.Chapter 4 looks into the future of the Court in dealing with cases involving obligations erga omnes partes,and puts forward recommendations and measures for China.The author speculates that non-injured states will be able to obtain standing before the Court,and that the applicants to the Court will become more diverse.However,more states will make reservations to the jurisdictional provisions of the treaties for dispute settlement at the Court.Smaller states may be more flexible in employing various international dispute resolution mechanisms,while larger states may be more inclined to resolve disputes through diplomatic or political means,and may influence the process of litigation raised by non-injured states.In addition,the Court may recognize more treaties that contain obligations erga omnes partes.The Court may recognize a new type of litigation with features of action popularis,but it is somewhat different from the latter concept that originates from domestic law.If a state has obtained the standing derived from omnes partes,the substantive rights and interests it may acquire in subsequent proceedings will be limited to what all other states parties to the treaty may claim,but the impact of such proceedings on international politics may make this type of litigation more significant.In light of the Court’s latest move,China shall continue to adhere to a political settlement based on consultation and negotiation,maintain its reservations to the jurisdictional provisions of its treaties,and participate in the litigation process to a limited extent.At the same time,China shall strengthen the training of talents for the development of international law,to prepare a talent pool for dealing with the increasingly complex and flexible judicial mechanism of the Court in the future. |
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