Not an Overreach of the Court’s Jurisdiction, Putting Erga Omnes into Motion: In Partial Response to Xiao Mao’s Comment on the ICJ’s Judgment on the Preliminary Objections in The Gambia v. Myanmar

Abstract

1. This letter is in response to Xiao Mao’s thought-provoking article titled “Public-Interest Litigation before the International Court of Justice: Comment on The Gambia v. Myanmar Case”. Arguably, the very title of the article implies a special reading of the judgment in that neither the majority of the Court nor even Judge ad hoc Kress delivering his separate declaration, has viewed the lawsuit brought by The Gambia as public interest litigation. It is only Judge Xue’s separate opinion which reads it that way. Like Judge Xue’s dissent, one of the article’s central concerns regarding the judgment of 22 July is on the “public interest litigation” nature of The Gambia’s efforts. This letter would argue that this emphasis is, though appealing at first glance, ultimately unpersuasive. Indeed, even the separate declaration of Myanmar appointed Judge ad hoc Kress has observed that “[a]s this latter concept [erga omnes] is now well entrenched in the Court’s jurisprudence, there is also no need to recognize the term actio popularis as a term of art in that context” (Kress, Sep. Op., para.32).