Jus cogens and the duty to act: the institutional inaction of the European Union in light of Article 265 TFEU

Abstract In the JURDI case, a French non-governmental organisation invoked Article 265 TFEU to challenge the EU Commission and Council’s inaction towards Israel despite the finding of the International Court of Justice that there was a plausible risk of genocide in the Gaza Strip, in its 2024 orders in South Africa v Israel . This article draws on this case to argue that Article 265 TFEU – originally conceived as an interinstitutional remedy – could constitutionalise the EU’s positive obligations under jus cogens (genocide prevention and respect for international humanitarian law) and under Articles 2, 3, 19, 21 TEU, thereby overcoming the restrictive standing rules inherited from Article 263 TFEU. The case offers an opportunity to reflect on the capacity of the EU courts to acknowledge the mobilising potential of civil society organisations and secure accountability in the case of breaches of EU and international law.