Comprehension
In its second preliminary objection, Myanmar submits that The Gambia’s Application is inadmissible because The Gambia lacks standing to bring this case before the Court. In particular, Myanmar considers that only “injured States”, which Myanmar defines as States “adversely affected by an internationally wrongful act”, have standing to present a claim before the Court. In Myanmar’s view, The Gambia is not an “injured State” (a term that Myanmar appears to use interchangeably with the term “specially affected State”) and has failed to demonstrate an individual legal interest. Therefore, according to Myanmar, The Gambia lacks standing under Article IX of the Genocide Convention.
Myanmar draws a distinction between the right to invoke State responsibility under general international law and standing before the Court. It argues that, even if it were established that a “non-injured” Contracting Party to the Genocide Convention has the right to invoke another State’s responsibility for violations of the Convention, this would not necessarily entail the right to bring a case before the Court. To this end, Myanmar contends that there exists a difference between the common interest in the accomplishment of the purposes of the Genocide Convention and a State’s individual legal interest that may be enforce through the institution of proceedings before the Court. In Myanmar’s view, only States “specially affected” by an internationally wrongful act have standing to bring a claim before the Court.
Myanmar further submits that The Gambia’s claims are inadmissible in so far as they are not brought before the Court in accordance with the rule concerning the nationality of claims which, according to Myanmar, is reflected in Article 44 (a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. Myanmar asserts that the rule concerning the nationality of claims applies to the invocation of responsibility by both “injured” and “non injured” States and irrespective of whether the obligation breached is an erga omnes partes or erga omnes obligation. Consequently, in Myanmar’s view, The Gambia lacks standing to invoke Myanmar’s responsibility.
Myanmar draws a distinction between the right to invoke State responsibility under general international law and standing before the Court. It argues that, even if it were established that a “non-injured” Contracting Party to the Genocide Convention has the right to invoke another State’s responsibility for violations of the Convention, this would not necessarily entail the right to bring a case before the Court. To this end, Myanmar contends that there exists a difference between the common interest in the accomplishment of the purposes of the Genocide Convention and a State’s individual legal interest that may be enforce through the institution of proceedings before the Court. In Myanmar’s view, only States “specially affected” by an internationally wrongful act have standing to bring a claim before the Court.
Myanmar further submits that The Gambia’s claims are inadmissible in so far as they are not brought before the Court in accordance with the rule concerning the nationality of claims which, according to Myanmar, is reflected in Article 44 (a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. Myanmar asserts that the rule concerning the nationality of claims applies to the invocation of responsibility by both “injured” and “non injured” States and irrespective of whether the obligation breached is an erga omnes partes or erga omnes obligation. Consequently, in Myanmar’s view, The Gambia lacks standing to invoke Myanmar’s responsibility.
Question: 1
Hypothetically, if The Gambian state was to exercise criminal jurisdiction over the persons responsible for Crimes of Genocide, then such jurisdiction would be called as:
Hypothetically, if The Gambian state was to exercise criminal jurisdiction over the persons responsible for Crimes of Genocide, then such jurisdiction would be called as:
Updated On: Nov 7, 2024
- Extra-territorial jurisdiction
- Universal jurisdiction
- Contentious jurisdiction
- A state cannot exercise jurisdiction over such crimes without having any connection with them
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The Correct Option is B
Solution and Explanation
Universal jurisdiction allows a state to claim criminal jurisdiction over an accused
person regardless of where the alleged crime was committed, especially for crimes of a grave
nature, such as genocide.
The correct option is (B): Universal jurisdiction
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Question: 2
Erga omnes partes means:
Erga omnes partes means:
Updated On: Nov 7, 2024
- Obligations that are so integral to the subject and purpose of the treaty that no reservations or derogations are permissible
- Obligations arising out of customary principles of international law that states have not objected to
- Obligations essentially arising after gaining membership of the United Nations
- Both (A) and (B)
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The Correct Option is A
Solution and Explanation
Erga omnes partes refers to obligations that are so essential to the treaty’s objectives
that reservations or derogations are not allowed, underscoring their universal and binding
nature.
The correct option is (A): Obligations that are so integral to the subject and purpose of the treaty that no reservations or derogations are permissible
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Question: 3
Article 44 (a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts states that ‘the responsibility of a State may not be invoked if: (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims.’ Can Gambia invoke the principles of state responsibility against Myanmar for Crimes of Genocide?
Article 44 (a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts states that ‘the responsibility of a State may not be invoked if: (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims.’ Can Gambia invoke the principles of state responsibility against Myanmar for Crimes of Genocide?
Updated On: Nov 7, 2024
- No, as The Gambia cannot fulfill the conditions stipulated in Article 44 (a)
- Yes, as the nationals of The Gambia have also faced persecution from Myanmar
- Yes, the Article has no relevance as the Genocide Convention expects the accomplishment of its high purposes
- No, Bangladesh is an appropriate state to bring claims and hold Myanmar internationally responsible.
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The Correct Option is C
Solution and Explanation
The Genocide Convention upholds the responsibility to protect human rights uni-
versally, allowing non-injured states to raise claims for the fulfillment of its objectives, making
Article 44(a) inapplicable.
The correct option is (C): Yes, the Article has no relevance as the Genocide Convention expects the accomplishment of its high purposes
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Question: 4
Myanmar claims that the reservation by Bangladesh to Article IX of the Genocide Convention not only precludes Bangladesh from bringing a case against Myanmar, but it also bars any “non-injured” State, such as The Gambia, from doing so. Is this claim maintainable? (Article IX - Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.)
Myanmar claims that the reservation by Bangladesh to Article IX of the Genocide Convention not only precludes Bangladesh from bringing a case against Myanmar, but it also bars any “non-injured” State, such as The Gambia, from doing so. Is this claim maintainable? (Article IX - Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.)
Updated On: Nov 7, 2024
- Yes, because Bangladesh is the injured state and its reservation imposes a restriction on dispute itself precluding any state from raising it
- No, it does not affect the locus standi of The Gambia as being party to the Convention, it has its own right
- No, Gambia can only file the dispute before ICJ after Bangladesh consents to the same
- Option (A) subject to (C).
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The Correct Option is B
Solution and Explanation
The reservation by Bangladesh does not affect The Gambia’s independent standing
to bring a case under the Genocide Convention as a signatory with a collective interest in its
enforcement.
The correct option is (B): No, it does not affect the locus standi of The Gambia as being party to the Convention, it has its own right
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Question: 5
Myanmar has made a reservation to Article VIII of the Genocide Convention to restrict the competent organs of the UN to take actions under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide. Myanmar claims that since ICJ is the principal organ of the UN, there is a limitation on Article IX. The claim is:
Myanmar has made a reservation to Article VIII of the Genocide Convention to restrict the competent organs of the UN to take actions under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide. Myanmar claims that since ICJ is the principal organ of the UN, there is a limitation on Article IX. The claim is:
Updated On: Nov 7, 2024
- Maintainable, as the reservation explicitly prohibits the intervention of UN organs.
- Not maintainable, as Article VIII concerns the discretionary function which is different from the judicial function of the ICJ
- Maintainable, as the two provisions of the treaty i.e., Article VIII and IX are to be interpreted harmoniously
- Not maintainable, as ICJ as a successor of PCIJ is regulated by the Statute of ICJ and not the UN Charter
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The Correct Option is B
Solution and Explanation
The claim is not maintainable because Article VIII pertains to discretionary actions
by UN organs, which differs from the judicial role of the ICJ under Article IX. The ICJ
operates under its Statute, separate from the discretionary powers covered by the UN Charter.
The correct option is (B): Not maintainable, as Article VIII concerns the discretionary function which is different from the judicial function of the ICJ
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