The Equal Interests of Injured and Non-Injured States for Communitarian Norms

Abstract The International Court of Justice has remained reluctant to define the boundaries of obligations erga omnes and erga omnes partes – referred to conjointly by James Crawford as “communitarian norms”. However, with novel proceedings in South Africa v. Israel and Nicaragua v. Germany brought this year, the Court’s clarity has never been more important. The idiosyncratic feature of communitarian norms is that a State need not be an “injured State” to invoke the breaching State’s responsibility. Yet it is often the case that there is an “injured State” that suffers a direct or special injury for breaches of communitarian norms, in addition to other members of the international community, which also have an interest in ensuring compliance with the obligation in question. In The Gambia v. Myanmar , Judge ad hoc Kreß raised whether the “injured State” would be entitled to dispose of this wider common interest; however, such an entitlement would have profound legal and practical ramifications. It would not only threaten the legal interests held by the collective of States to ensure accountability, but also may force victims to suffer at the hands of recalcitrance, without any remedy. This article advances the contention that all States which are the beneficiaries of the communitarian norm – irrespective of whether or not they are “injured” – have and retain an equal legal interest to invoke responsibility and ensure accountability.