چکیده:
The Present descriptive-analytic paper relying on the International Court of Justice's previous case-law on Erga Omnes obligations, following the investigation and anticipation of the outcome of the Gambia lawsuit against Myanmar in the case of application of the Convention on the Prevention and Punishment of the crime of genocide (1948) before The International Court of Justice. The foregoing research shows that, first, the Gambia request for provisional measures is sufficiently sufficient to achieve its intended purpose. Secondly, the obligations contained in the Convention considered as Jus Cogens and Erga Omnes Obligations which, although not affecting the jurisdiction of the Court, provide sufficient grounds for Gambia's right to file a lawsuit. The Rohingya group is also considered as the "protected group" under the Convention, but proving whether the Myanmar government is responsible for the commission of the crimes is based on evidence related to the control, direct or order of the perpetrators by the Myanmar government and the Court's assessment of the events. It will depend. The present case because it is based on Erga Omnes and Erga Omnes Partes Obligations, in line with the protection of human rights, can be a turning point in international law.
خلاصه ماشینی:
erga omnes obligations, peremptory norms, Genocide Convention, Gambia, protected group, state international responsibility, Myanmar –––––––––––––––––––––––––––––––– * Assistant Professor, Faculty of Law and Political Science, University of Tehran, Tehran, Iran momenirad@ut.
The present article, from this perspective and relying on previous judicial precedents, will address this upcoming development and, by examining the initial petition against Myanmar and evaluating the characteristics of the 1948 Convention and the nature of the obligations contained therein, will discuss the issue of Gambia's standing from the perspective of the Court's procedure, potential jurisdictional objections, and also the substantive rights of the case at hand.
The bulk of Myanmar's arguments in this section are substantive in nature, and substantive defenses will not be the criterion neither at the time of issuing provisional measures nor in determining the jurisdiction of the Court (ICJ, 1996, para 20 b), including whether a dispute exists between the parties (Poecke, Hermez and Vernimmen, 2019) and whether the State of Gambia is a beneficiary in this case or not.
Although it seems possible to evaluate the basis of Myanmar's defense by accepting or rejecting the distinction between a "specifically injured State" and a "State acting on behalf of the community" - in light of the general nature of the Convention's obligations - one must first consider whether the application of the reservation to Article 8 prevents the Court from exercising jurisdiction over the disputed matters – which are in principle the subject of Article 9 – in both the stage of issuing provisional measures and the issuance of a merits judgment?
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