A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing

Alaa Hachem, Oona A. Hathaway, and Justin Cole*

In 2019, The Gambia brought suit against Myanmar in the International Court of Justice to hold it accountable for its alleged genocidal acts against the Rohingya, an ethnic Muslim minority group that has long been subjected to systemic abuse by the Myanmar government. As a State party to the Genocide Convention, The Gambia claimed that it had a common interest in preventing genocide by Myanmar. In a landmark decision issued in 2022, the Court accepted that The Gambia had standing and ordered Myanmar to prevent the commission of genocidal acts against the Rohingya.

This Article argues that this decision offers the promise of a revolution in the enforcement of international law, especially international human rights law. It transforms what has long been the Achilles heel of international human rights law—the protection of legal rights shared by all—into an asset through the recognition of erga omnes partes standing, which allows a State party to a treaty that protects common legal rights to enforce those rights even if that State is not specially affected by the violation. As a result, whereas it was once too often the case that no State possessed the capacity to enforce the law, now every State that is party to the relevant treaty may have that capacity.

This Article places these recent developments in context, tracing the evolution of the case law on erga omnes and erga omnes partes obligations over the course of more than a half century. It considers the extent to which the recent recognition of erga omnes partes standing as an enforcement mechanism might be expanded to other treaties. This Article considers, too, the potential drawbacks of this new mechanism for international law enforcement and the new questions the Court will inevitably face as this revolutionary development continues to unfold.

*Respectively, J.D. candidate, Yale Law School; Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School; J.D. Yale Law School 2023. For helpful comments and conversations, the authors thank John Bowers, Mikaela Carlson, Aroosa Cheema, Nienke Grossman, Rekha Kennedy, Raquel Leslie, Asaf Lubin, Helen Malley, Maggie Mills, Juan Miramontes, Solveig Olson-Strom, Duncan Picard, Thomas Poston, Aaron Sobel, Michael Sullivan, Beatrice Walton, Alyssa Yamamoto, Saifeldeen Zihiri, and Heather Zimmerman.