THE HAGUE — The International Court of Justice has progressively expanded the doctrine of standing under multilateral human rights and humanitarian conventions.
By confirming that state parties may invoke obligations erga omnes partes, the Court has allowed states with no geographic proximity, direct injury, or national victims to institute proceedings and seek binding provisional measures against alleged treaty violators.
1. Standing Beyond Direct Bilateral Injury
Historically, international adjudication operated primarily on bilateral reciprocity. Under Article 42 of the ILC Articles on State Responsibility (ARSIWA), an applicant state generally had to demonstrate that it was specially affected by an internationally wrongful act to invoke responsibility.
The Court broadened this principle in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (2012), recognizing that all states parties to the Convention Against Torture share a common legal interest in compliance.
This precedent has since shaped modern contentious proceedings:
- The Gambia v. Myanmar (2020): The Gambia instituted proceedings under the 1948 Genocide Convention without alleging direct injury to its own territory or nationals, establishing standing on the common interest of all state parties in the prevention of genocide.
- South Africa v. Israel (2024–2026): South Africa relied on identical erga omnes partes grounds under Article IX of the Genocide Convention, reinforcing that non-injured states may petition the Court for provisional relief to protect collective convention rights.
2. Provisional Measures: The Plausibility Standard
The procedural significance of erga omnes partes standing is most pronounced at the provisional measures stage under Article 41 of the ICJ Statute. To grant interim relief, the Court does not adjudicate the merits, requiring only:
- Prima Facie Jurisdiction: A valid compromissory clause without applicable reservations.
- Plausibility of Rights: The rights asserted on the merits must be plausible.
- Urgency and Irreparable Prejudice: An imminent risk of irreparable harm to those rights before a final judgment can be rendered.
Coupling common-interest standing with the plausibility standard allows non-injured applicant states to secure binding judicial orders addressing ongoing conflicts while the underlying jurisdictional objections and merits remain pending.