- Hassan Almawy
Community Interests and Ius Cogens norms in International Law: Genocide, Peace and Security
*Este material, seus resultados e conclusões são de responsabilidade dos autores e não representam, de qualquer maneira, a posição institucional da Fundação Getulio Vargas / FGV Direito Rio ou do FGV Jean Monnet Centre of Excellence on EU-South America Global Governance.
The admission of the legitimacy of the Republic of The Gambia to file a case against the Republic of The Union of Myanmar before the International Court of Justice (ICJ) is bringing forward many legal and political discussions. By analyzing the concepts of international law related to de discussions at issue in the ICJ case, this paper intends to analyze possible future human rights-related cases that can be brought before the World Court, following the precedent set forth by The Gambia under the Genocide Convention, utilizing the UN Human Rights Watch 2021 World Report.
The present paper is structured in three topics. First, an introduction on the history of international community interests will be presented (1), followed by an exposé on the concept of ius cogens norms in International Law, more specifically with regards to human rights and the Genocide Convention (2). Then, the paper concludes with a discretionary analysis of which situations compiled by the 2021 UN Human Rights Watch World Report have a chance to become a matter of litigation in the ICJ (3).
1. What is a community interest?
Former ICJ Judge Bruno Simma stated that a universal community interest would be defined as: "A consensus according to which the respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States."
There is certain debate as to the existence of said community interests, and the existence of an international community in itself. Some believe that there is an intrinsic lack of shared beliefs in the global scene, arguing that the colossal societal, political, cultural and economic differences throughout the world leave no space for the existence of interests shared commonly by every society on earth. Simma argued that in international law these interests concern questions of human rights, rules regarding the preservation of international peace and security and the spaces beyond national jurisdictions
The ICJ in its advisory opinion to on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide established that in the Convention ‘[t]he Contracting Parties do not have any interests of their own; they merely have, one and all a common interest’. Thus the court is alluding to the existence of community interests, which translate to interests and in consequence, duties owed by a state to the international community as a whole and not to another state directly. One could view these as the interests in the preservation of international peace, in the protection of the global environment, and in the management of spaces beyond national territorial jurisdiction.
As an example of the materialization of these interest categories in international law, Article 24 of the United Nations (UN) Charter sets forth that the members of the UN confer on the Security Council the primary responsibility for the maintenance of international peace and security. The interpretation of this article alongside the first paragraph of the preamble to the UN Charter and its Article 1 prohibiting recourse to military force in international relations except in certain defined cases, signifies that the international community recognizes the competence of the Security Council in dealing with the interests in the preservation of international peace.
In essence, international community interests mainly relate to the protection of: (i) common goods, (ii) common values, (iii) common spaces and (iv) intergenerational equity. First, common goods can be seen in agreements such as the TRIPS which protect intellectual property and patents, also in the protection of the environment and in treaties such as the Kyoto Protocol or the Paris Accords. Second, common values are linked to human rights. Any norm that conceptualizes and attempts to regulate universal rights for all humans, regardless of nationality. These can be easily seen in The Declaration for Universal Human Rights, The Convention on the prevention and Punishment on the crime of Genocide and The Pact of San José da Costa Rica.
As for common spaces, they are generally understood as places which all of humankind has the right to inherit. These are normative acts, treaties, statutes and regulations act in a likewise fashion with the management of spaces beyond territorial jurisdiction and the protection of the global environment. Such as, The Agreement governing the Activities of States on the Moon and Other Celestial Bodies, which states: ‘The Moon and its natural resources are the common heritage of mankind’. and Art. 136 of the United Nations Convention on the Law of the Sea that establishes the same for the deep seabed and its resources. At last, intergenerational equity is a recent endeavor made by States but with a substantial support from NGOs regarding the protection and conservation of livable natural conditions for future human generations. Treaties, regulations or initiatives that attempt to mitigate environmental damage.
2. The history of ius cogens norms in International Law, Human Rights and the Genocide Convention.
The content, limits and normative sources of community interests in International Law are matters of debate among scholars. The origins of the ius cogens term is in Roman Law. Whenever the parties in a legal relation could not alter a disposition, even if they deliberately and spontaneously wished to do so, this subject was considered ius publicum. This means that some understandings are so essential that violating them is unlawful by nature, these are norms that cannot be disposed differently, ius cogens norms.
This paper adopts the stance established by the Vienna Convention on Article 53. In essence, there are ius cogens norms in International Law, although they are not defined and need only to be recognized by a reasonable variety of States from different political and cultural backgrounds. Even still, some norms are by definition easily described as ius cogens according to the article's definition. They are (i) the UN Universal Human Rights Declaration, and by extension (ii) the Genocide Convention.
The ICJ recognized that all states have certain erga omnes obligations in its famous Barcelona Traction case. The court identified them as deriving from acts of illegal aggression, genocide and other breaches of the UN Universal HR Declaration. This comprehension has been reiterated in the recent 22 July 2022 Judgement on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. In its Advisory Opinion on Reservations to the Convention on Genocide, the Court elaborated on the legal relationship between States party to the aforementioned Convention:
“In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.” (I.C.J. Reports 1951, p. 23.)
All the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention. As the Court has affirmed, such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68; see also Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33)."
3. Which situations in the 2021 UN Human Rights Watch World Report are breaching the convention and community interests?
3.1. Bahrain, United Arab Emirates and the Kafala system
In recent months, the general public in most countries is being exposed to the situation in Qatar, and the gulf states in general. In a summarized manner, 95% of the Qatari workforce is made up of migrant workers, close to two million people, with a million of them working construction jobs. They are subject to a labor system called Kafala, this is a systematic violation of several human rights and in many cases the workers die from their inhumane work and living conditions.
The Kafala system is a labor relationship in islamic law in which the worker is somewhat sponsored by the employer. This essentially gives the employer ample powers over the work and personal life of the employee. Most of the migrants in the gulf countries come from either Sri Lanka or India, this means there is a systematic work regime that inflicts upon specific ethnic groups life conditions that bring about its physical destruction in part, and also causes serious bodily and mental harm as well as killing large numbers of these groups. The situation described fits perfectly the definition given by Article II, "a", "b" and "c" of the Convention on the Prevention of Genocide.
Qatar is not a party to the Genocide Convention, still, every gulf state has a situation very similar. Bahrain and the UAE have made reservations from persecution, but so has Myanmar and recent action by the court in the Gambia v Myanmar case may lead to persecution for the gulf regimes. Foreign nationals are 80% of the UAE's population and most are subject to the kafala system.
In Bahrain, the situation is no better, equal to the UAE, most of its workforce is made up of migrants from the Indian subcontinent. During the pandemic the authorities tried to ease accommodation issues by providing shelter in schools but they also regulated the inhabitants life by cutting off power and water in specific periods of the day in order to force them to leave and work. In 2017 a standard contract for domestic workers was issued, in it no limitation of working hours, no minimum wage and no rest days were set. There also is a vacuum of enforcement mechanisms to ensure the workers rights.
3.2. Syria, Turkey, Iraq and the Yazidi question
Whilst the Bashar regime has had its power mostly emptied, holding only certain parts of the capital and is essentially a Russian Federation puppet, there are ongoing systematic violations that constitute the heinous crime of genocide against two distinct groups: the Yazidis and the Kurds.
The Yazidi question is very similar to the Rohingya, both religious and ethnical persecutions. The Yazidi religion is perhaps the oldest still in existence religion in the world. Natia Navrouzov, a Yazidi lawyer claims that even though the perpetrators of the crimes of genocide were ISIS a non state terrorist group, there is enough evidence to sustain the thesis that Turkey and Syria had knowledge such a crime would occur and failed to act by deliberately ignoring the group dire situation. According to the report made by the Yazidi Justice Committee:
"Despite Iraq recognising the genocide in June 2014, with the country calling upon the UN to do the same and requesting that the US launch air strikes against ISIS, the report claims Iraq ‘failed to use all means reasonably available to protect the Yazidis’ and prevent the genocide. In particular, it condemns the failure to evacuate Yazidis as ISIS approached Sinjar, the Yazidi homeland, and alleges a ‘failure’ by Iraq to ‘ensure the security’ of key areas facing continuing attacks."
The Convention places binding obligations on all states party to it to take preemptive measures when they have sufficient certainty that a genocide might happen. According to Article III, "e".
In essence, the International Court of Justice has reiterated its known standing in the cases Barcelona Traction and Obligation to Prosecute or Extradite in the recent The Gambia v Myanmar ruling. This signals a renewal in international community interests being actively sought upon by the organs of the United Nations. One can hope this benefits humanity and helps prevent the greatest atrocity a human can commit, systematic crimes against its own kind.
 FEICHTNER, Isabel. "Community Interest": Max Planck Encyclopedia of Public International Law [MPEPIL]. Oxford Public International Law, 2007 p. 1  WOLFRUM, Rudiger. “Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?” Oxford University Press 2011. p. 1133  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion)  ICJ Rep 15, 23.  FEICHTNER, Isabel. "Community Interest": Max Planck Encyclopedia of Public International Law [MPEPIL]. Oxford Public International Law, 2007 p. 4  Convenção de Viena sobre Direito dos Tratados. 1969. Disponível em: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. Acesso em: 25 nov. 2022.  ORGANIZAÇÃO DAS NAÇÕES UNIDAS. Declaração Universal dos Direitos Humanos, 1948. Disponível em: <https://www.unicef.org/brazil/declaracao-universal-dos-direitos-humanos>. Acesso em: 25 nov. 2022.  Convenção para a Prevenção e a Repressão do Crime de Genocídio. 1948. Disponível em: <https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf> Acesso em 25 nov. 2022