Prof Stefan Talmon Delivers Rebuttal Arguments at ICJ

Professor Stefan Talmon presented the rebuttal arguments on alleged legal consequences for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 20 January.
He stated: My task this afternoon is to deal with the remedies claimed by The Gambia for the alleged violations of the Genocide Convention and the Provisional Measures Order of 23 January 2020.
There is no question of remedies because The Gambia has not established by fully conclusive evidence that Myanmar is in breach of any of its obligations under the Convention or the Court’s Order.
The Gambia, as a non-injured State, requests a declaration that Myanmar has violated its obligations under the Genocide Convention and an order that it shall immediately cease any ongoing violation of the Convention. In addition, it requests the Court to order Myanmar to provide assurances and guarantees of non-repetition, and declare that it must make reparation in the interest of the alleged victims of genocide, including a long list of specific acts of restitution, as well as compensation and additional means of satisfaction.
When dealing with remedies, three questions must be distinguished: First, whether the Court has jurisdiction to entertain a particular remedy; Second, whether there is a legal basis for the remedy claimed; and Third, whether the factual and legal requirements of the legal basis are met. I will deal with these three questions in turn.
Myanmar submits that the Court does not have jurisdiction to entertain a claim by a non-injured State like The Gambia for reparation in the interest of alleged victims of genocide.
Article IX provides that the Court may decide disputes “relating to the responsibility of a State for genocide”. The Court’s jurisdiction with regard to remedies thus depends on what is meant by the term “responsibility of a State for genocide”.
The term “responsibility of a State” must be interpreted in light of “the rules of general international law … on responsibility of States for internationally wrongful acts”. These general rules on State responsibility do not provide for reparation to individual victims of violations of international law, but for reparation to their State.
The term “reparation” is understood as “reparation for the injury caused”. Under the general rules of State responsibility, only the State is injured – either itself or through its nationals. The Court’s jurisdiction under Article IX concerning reparation is thus limited to inter-State responsibility.
In the Bosnia case, the Court held that “a finding that ‘the Court has jurisdiction’ … does not necessarily prevent subsequent examination of any jurisdictional issues later arising that have not been resolved, with the force of res judicata.” In that case, the Court distinguished between a finding on the existence of jurisdiction and on the extent of jurisdiction. A finding that the Court had jurisdiction did not preclude a later decision on the extent of that jurisdiction. The question of what kind of remedies the Court may entertain under Article IX of the Genocide Convention concerns the extent of its jurisdiction. This question was not addressed, let alone decided in the Court’s Preliminary Objections Judgment. The question has thus not been resolved with the force of res judicata.
It is submitted that, in light of the meaning of the term “responsibility of a State for genocide” in Article IX, the Court should decide now that its jurisdiction does not extend to claims for reparation in the interest of alleged victims of genocide, because the alleged victims themselves do not have a right to claim reparation under the Genocide Convention.
The Preliminary Objections Judgment neither addressed nor decided the question of whether there is a legal basis for the remedies claimed by The Gambia. That question was therefore not decided with the force of res judicata in the Preliminary Objections Judgment, as claimed by The Gambia. The Court would have to decide this question now if it found a violation of the Genocide Convention and that it had jurisdiction to entertain a claim for reparation in the interest of alleged victims of genocide.
Such a claim cannot be based on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Basic Principles and Guidelines are not legally binding and do not create any legal obligation under international law to make reparation directly to the alleged victims of genocide. Even less so do they establish a right on the part of non-injured States to claim reparation in the interest of the alleged victims.
The Gambia relies for its reparation claim also on Article 48, paragraph 2 (b), of the ILC’s Articles on State Responsibility, according to which non-injured States may claim from the responsible State performance of the obligation of reparation in the interest of the beneficiaries of obligations erga omnes partes. However, this provision is not reflective of customary international law, as shown in detail in Myanmar’s Counter-Memorial.
If The Gambia wants to rely on Article 48, paragraph 2 (b), it must prove its customary international law status. It has not done so. There is no constant and widespread State practice, let alone opinio juris, for a right to claim reparation in the interest of the beneficiaries of obligations erga omnes partes. Claims by three States in ongoing litigation are hardly capable of establishing a rule of customary international law, especially if such claims are opposed by the respondent States in the proceedings in question.
The existence of a right under general international law cannot be based on flawed logical deductions. That a non-injured State may invoke responsibility for erga omnes partes violations does not automatically equate to a right to claim reparation in the interest of the beneficiaries of the obligation breached. As the Court held in its Preliminary Objections Judgment in the present case, “any State party to the Genocide Convention may invoke the responsibility of another State party … with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end”. There was no mention of bringing a claim for reparation, despite such a claim having been expressly raised in The Gambia’s application instituting proceedings.
The Gambia has also not explained how it has established the interest of the alleged victims. As there are different forms of reparation, the alleged victims may prefer compensation over restitution. Considering also that Bengali Muslims resident in Myanmar would, as taxpayers, indirectly be paying for their own compensation, they may be content with declaratory relief.
The Gambia rather seeks an abstract and general declaration by the Court that Myanmar must make restitution or pay compensation for any damage caused, without specifying that damage, in the hope of extracting from Myanmar maximum amounts of money in subsequent negotiations. The Court’s task, however, is not to make abstract statements of law but to settle concrete disputes. The Court has never ordered compensation for a breach of a Provisional Measures Order because it has considered satisfaction by way of a declaration of breach the “adequate form” of reparation. The request for any other remedies should be dismissed as being without any legal basis.

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