1  Actio popularis may be defined as a ‘right resident in any member of a community to take legal action in vindication of a public interest’ (South West Africa, Ethiopia and Liberia v South Africa, 1966, 47, para 88).

2  There is some uncertainty in legal literature whether the definition excludes the possibility that an individual interest of the actor may exist alongside the collective one, or whether in some circumstances the individual legal interest may be considered as implied in the collective one. The latter understanding seems better to reflect the origin and scope of the right (Voeffray, 2004, 41).

3  The notion derives from Roman law, which knew different kinds of actiones populares, some of them enacted by statutes, others descending from the jus praetoris. In domestic legal systems the Roman law legacy found expression in different legal institutions, most notably in civil or administrative law, like, albeit with significant differences, class actions or citizen suits in the United States of America (‘US’) under the Federal Rule of Civil Procedure 23 (Aceves, 2003, 358).

4  The feasibility of an actio popularis in international law is a matter of debate. On the one hand, the analogy with the Roman law notion is particularly apt in international law, due to some structural features of the latter, such as the lack of an attorney general and the impossibility of strictly distinguishing between a public action and a civil suit. On the other hand, some other traditional features of international law, such as the resilient bilateralism of relationships between States, seem resistant to the idea of actio popularis. Nevertheless, the growing number of international courts and tribunals differing greatly in their competence ratione personae and ratione materiae might lead to different answers as to the permissibility, role, and scope of actio popularis.

5  In general terms, as will be later shown, in its 1966 judgment on the South West Africa case, the International Court of Justice (ICJ) gave short shrift to the very idea of actio popularis in international law (see sec B.1(a) below). One may wonder whether the ICJ’s position truly reflected the state of international law at the time. As is well known, the decision by which the Court denied any legal interest on the part of Ethiopia and Liberia to sue South Africa for its policy of apartheid in Namibia was taken by the casting vote of the President. Moreover, the reasoning of the bare majority of the Court was in strong opposition to the parallel jurisprudential developments in the European system of human rights protection, as epitomized by the decision of the European Commission of Human Rights in the Pfunders case of 1960 (Austria v Italy, 1961, see sec B.4(a) below). Furthermore, the notion of obligations erga omnes, recognized by the ICJ in the famous dictum in paragraph 33 of the Barcelona Traction judgment of 1970, seems to have paved the way for a fundamental change of perspective by the ICJ itself.

6  Although the attribute of erga omnes inheres in the nature of the obligation, it is here proposed that we follow the path taken by the International Law Commission (ILC) in the 2001 Draft Articles on State Responsibility for Internationally Wrongful Acts and to focus instead on the rights that the omnes have towards the responsible State. From this perspective, the underlying concept, if not the strict notion, of actio popularis is embedded in Article 48 (Dupuy, 2012, 1061). Furthermore, the decision by the ILC to exclude damage as an element of the international wrongful act reinforces the possibility that a State may bring a claim before an international court or tribunal in the event of a legal injury. According to Article 48 (1) lit. a) in the case of the violation of an obligation which is due to a group of States and is established for the protection of a collective interest of that group (ie obligations erga omnes partes) each State of the group may invoke the responsibility of the responsible State, whereas under Article 48 (1) lit. b), when the obligation is owed to the international community as a whole, the same right of action is recognized for each State (ie obligations erga omnes as such). As the ILC put it in its commentary, Article 48 is ‘a deliberate departure’ from the ICJ’s judgment in the South West Africa of 1966 (ILC Yearbook 2001, Vol II (1), 127, footnote 725), and therefore, one may infer, a deliberate departure from the ICJ’s denial of actio popularis.

7  It has been maintained that the common interests of a given group of States must be theoretically distinguished from community interests as such. It would follow that, strictly speaking, the concept of actio popularis would apply only in the case of obligations erga omnes but not in the case of obligations erga omnes partes such as those contained eg in the European Convention on Human Rights (‘ECHR’). On closer examination the distinction seems rather artificial. To the extent that a State takes action for the protection of a ‘public’ interest, ie an interest which transcends its own, the essence of actio popularis is satisfied, regardless of whether the norm which enshrines the public interest is contained in a treaty or whether it is customary. Similarly, it would not make a difference whether the public interest is one which appertains to the community as a whole, eg the protection of the global commons, the maintenance of peace, or whether it follows from the concern of the community with regard to some specific issues, eg the protection of human rights or minority rights.

8  The ILC further codified an analogous rule in Article 49 Articles on the Responsibility of International Organizations, adopted in 2011. In that Article the locus standi of international organizations is qualified by imposing the requirement that the ‘safeguarding of the interest of the international community as a whole underlying the obligation breached is within the functions of the international organization invoking responsibility’. It has been rightly observed that a practical impediment to the application of Article 49 is the lack of any judicial forum before which an international organization could bring a claim, besides arbitration agreements. This limitation, however, does not apply to requests for advisory opinions. The practice of the ICJ shows that a number of advisory opinions have been requested by the competent organs of the United Nations (‘UN’) with the specific goal of assessing the scope of erga omnes obligations, in particular self-determination and the prohibition of the use of force (eg Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971, 16; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, 226; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, 136).

9  Finally with regard to the position of individuals, as will be shown in more detail later, the flexibility of the notion of potential victim used by regional human rights courts permits de facto a certain role for actio popularis (see secs B.4(b) and B.5(b) below). On the contrary, the system of international investment arbitration is not suitable for the protection of common interests, given the individual nature of the rights and interests invoked by the claimant. The introduction of amicus curiae briefs by civil society representative could at least partially remedy the shortcomings of the system (see sec C.1 below).

10  In the light of the above, one can conclude with Wolfrum that ‘whether this amounts to an actio popularis is a matter of terminology. Arguably, the simple rejection of actio popularis as a matter of almost ideological belief glosses over … elements already provided for by international law’ (Wolfrum, 2011, 1139). Nevertheless, if one accepts that jus cogens norms to a certain extent substantially overlap with obligations erga omnes, a contrasting note is given by Article 66 Vienna Convention on the Law of Treaties of 1969, which, while conferring compulsory jurisdiction to the ICJ, limits locus standi to the States Parties of the alleged invalid treaty, and not, as would have been technically possible, to any party to the Vienna Convention. The disposition is still redolent of a strictly bilateralist ‘infrastructure’ of international law, which can be considered by now outdated.

11  Read through the lens of the theoretical tool of obligations erga omnes, it seems that the concept, if not the notion of actio popularis, had already been employed by the Permanent Court of International Justice (‘PCIJ’) in its very first judgment in the S.S. Wimbledon case in 1923. Contrary to the express provision of Article 380 Versailles Treaty, Germany had closed the passage of the Kiel Canal to a vessel under British flag and chartered by a French company. The suits against Germany were initiated not only by the United Kingdom and by France but also by Italy and Japan. The two latter States had apparently no individual interest in the dispute. Germany drew the attention of the Court to the point but did not raise a formal objection. In their reply the four applicants argued that they all were ‘interested in the respect of the principle of free passage through the Kiel Canal and to the exact execution of the clauses of the Versailles Treaty’ (S.S. Wimbledon, 1923, 65). For its part the PCIJ dealt with the locus standi of the applicant States and found that ‘each of the four Applicant Powers has a clear interest in the execution of the provisions relating to the Kiel Canal, since they all possess fleets and merchant vessels flying their respective flags’ (S.S. Wimbledon, 20). It is apparent that the Court gave the broadest interpretation to the requirement of ‘interest’ contained in Article 386 Versailles Treaty.

12  On the contrary, the jurisprudence of the ICJ started from a strict bilateralist perspective. In the Advisory Opinion on the Bernadotte case of 1949 the Court affirmed that ‘only the parties to whom the international obligation is due can bring a claim in respect of its breach’ (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949, 181–82). Nevertheless, shortly after, in the Advisory Opinion on Reservations to the Genocide Convention of 1951, the Court recognized the existence of common interests, and expressly said that in such a Convention ‘the Contracting States do not have any interests of their own; they merely have, one and all a common interest’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951, 23). Although the two sentences stand in no contradiction to each other, the second one somehow subdues the rigor of the first, because it implies that, under certain circumstances, the applying State must not prove an individual legal interest in instituting judicial proceedings.

13  The first and to date only mention of the notion of actio popularis as such was made by the International Court of Justice in the second phase of the South-West Africa case in 1966, but in order to dismiss the request by Ethiopia and Liberia, by denying their legal interest to sue South Africa for the violation of Article 22 Statute of the League of Nations. On that occasion the Court, by the casting vote of the President, denied that the concept was known in international law ‘as it stands at present’. Furthermore, the Court refused to regard it ‘as imported from the general principles of law referred to in Article 38, para. 1 lett c) of its Statute’ (South West Africa, 47, para 88). The two branches of the sentence led some interpreters to read in the Court’s position a definite, if contested, preclusion of the very possibility of such a concept ever entering the realm of international law (Seidl-Hohenveldern, 1975, 806, with the argument that a true actio popularis presupposes a compulsory jurisdiction). Others saw in the dictum of the Court a too ‘sweeping assertion’, which needed to be qualified by the relevant facts of the case, ie by the interpretation which the Court had given to the jurisdictional clause contained in Article 7 Covenant of the League of Nations (Gowland-Debbas, 1997, 353). Others observed that the function, if not the notion of actio popularis, was not unknown in the jurisprudence of the Court’s predecessor, the Permanent Court of International Justice, in such cases as the already mentioned Wimbledon (1923), Certain Interests in Polish Upper Silesia (1925), or Interpretation of the Statute of the Memel Territory (1932), even if in those cases the right to action was expressly provided for in the compromissory clauses of the relevant treaties (Tams, 2005, 77 et seq).

14  As has been already said, such a radical rejection of actio popularis, if indeed ever intended by the Court, was nevertheless reversed in the subsequent Barcelona Traction decision of 1970, in which the Court introduced the concept of obligations erga omnes, (Barcelona Traction, Light and Power Company, Limited, Belgium v Spain, 1970, 32, para 33). The introduction of the concept overturned for all practical purposes the previous denial of actio popularis. Provided that the Court has a basis of jurisdiction, in a dispute concerning an erga omnes obligation, the legal interest of the Applicant State to sue is considered in re ipsa (see however for a contrary, even if cursorily stated view, Lachs, 1980, 341, for whom ‘there is a long way from the dictum of the Court to actio popularis’).

15  To date only nine cases involving obligations erga omnes have been brought to the attention of the ICJ. Only in four instances was the Court able to reach a (positive) decision on admissibility. The first case was the dispute between Portugal and Australia concerning East Timor. In its decision of 1995 the ICJ recognized the right of self-determination as an obligation erga omnes and for that reason it recognized the legal interest of Portugal to sue Australia for the alleged violation of such a right, ensuing from the exploitation of the natural resources of the Timor Gap. Nevertheless, the Court refused to exercise its jurisdiction, as a consequence of the doctrine of the ‘necessary third party’ (Case Concerning East Timor, Portugal v Australia, 1995, 102, para 29) (Indispensable Party).

16  The second case was the counterclaim brought by Serbia against Bosnia-Herzegovina in the dispute concerning the interpretation and application of the UN Convention on the Crime of Genocide of 1993. In 1997 the Court considered the counterclaim ‘admissible as such’, taking for granted the legal interest of Serbia to bring an action for the protection of non-citizens, ie the group of Bosnian Serbs (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v Federal Republic of Yugoslavia, Counter-claims, 1997, 260, para 43). The Court nevertheless did not reach a judgment on that issue because Serbia withdrew the counterclaim in 1999.

17  The third case was the counterclaim by Uganda against the Democratic Republic of Congo (‘DRC’) in the dispute concerning military activities in the territory of the DRC of 2005. The Court admitted the counterclaim but only for the injury suffered by the individuals, in regard of whom Uganda had been able to prove the link of citizenship. Even if the Court did not mention it, this position seems to find a precedent in the Barcelona Traction decision of 1970. In that case the Court, after having introduced at paragraph 34 the concept of erga omnes obligations, at paragraph 91 made the statement that ‘on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality’. Legal literature had variously tried to explain away that apparent contradiction, for instance by making the distinction between genuinely universal human rights like the prohibition of genocide, slavery, and egregious violations of fundamental human rights on the one side, and human rights in general on the other side. It seems, though, that the best explanation for the apparent contradiction is to be sought in an unfortunate formulation on the part of the Court, which in that paragraph meant to distinguish the aspect of the legal interest to act from the one of its jurisdictional basis (Voeffray, 2004, 77; Tams, 2010, 196). At any rate, the decision of the Court in the Military Activities case was criticized in the separate opinion of Judge Simma, who deplored the missed opportunity by the Court to reinforce the erga omnes character of humanitarian law, in particular of the rules on the protection of civilians in the course of an armed conflict (Armed activities on the Territory of the Congo, Democratic Republic of Congo v Uganda, 2005, Opinion of Judge Simma, 334).

18  The fourth case was the dispute between Belgium and Senegal concerning the obligation to prosecute or extradite. In its decision of 2012 the Court declined its jurisdiction with regard to the dispute concerning the customary status of the rule, but it explicitly affirmed the erga omnes character of the obligation to prosecute on the ground of Articles 6 and 7 UN Convention against Torture of 1984, to which both States are parties. Therefore, it recognized the Belgian locus standi (Questions relating to the obligation to prosecute or extradite, Belgium v Senegal, 2012, 450, para 69).

19  The fifth case concerned a counterclaim brought by Serbia against Croatia in the dispute concerning the interpretation and application of the UN Convention on the Crime of Genocide of 1996. Analogously to what it had previously done in the Bosnian Genocide case, in 2015 the Court considered the counterclaim admissible, taking for granted the legal interest of Serbia to bring an action for the protection of non-citizens, ie the group of Serbs living in the Croatian region of the Kraijna (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Croatia v Federal Republic of Yugoslavia, 2015, 59–60, para 123).

20  The sixth case was the 2012 Whaling in the Antarctic dispute between Australia and Japan, with New Zealand intervening. In its application of 31 May 2010, Australia sued Japan, lamenting the violation of Article 8 International Convention on the Regulation of Whaling (‘ICRW’). The basis of jurisdiction of the Court was the unilateral declarations rendered by the parties under Article 36 (2) ICJ Statute. Japan objected to the jurisdiction of the Court by virtue of a reservation by Australia relating to disputes concerning ‘the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation’. However it did not raise the question of Australia’s legal interest, implicitly assuming such interest from the fact that Australia advances sovereign rights over a part of the Antarctic waters in which Japan deployed its activities. The objections on jurisdiction were dismissed by the ICJ, but the Court itself did not enter either into the question of Australia’s legal interest, implicitly acknowledging the erga omnes partes character of the ICRW (Whaling in the Antarctic, Australia v Japan: New Zealand Intervening, 2014, 251, para 56).

21  The three final cases concern alleged obligations of negotiations relating to the cessation of the nuclear arms race and to nuclear disarmament. In 2014 the Marshall Islands brought nine distinct applications against the nine States in possession of nuclear weapons, but six of the applications were struck off the list for manifest lack of jurisdiction. For the three remaining cases against India, Pakistan, and the United Kingdom, the ICJ’s jurisdiction was based on the optional clause under Article 36 (2) ICJ Statute. In their applications, the Marshall Islands clearly drew their legal standing from the erga omnes character of the customary international law obligation to negotiate a comprehensive nuclear arms ban reflected in Article VI Non Proliferation Treaty of 1968. In all three cases the Court did not express an opinion on the point, because it upheld the first preliminary objection by the respondent States on the lack of a dispute between the parties (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v India, 2016, 266, para 25 et seq; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v Pakistan, 2016, 563, para 25 et seq; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v United Kingdom, 2016, 846, para 26 et seq).

22  As a whole, it is difficult to draw from the ICJ jurisprudence a clear-cut answer as to the actual place of actio popularis. Of the four cases judged admissible so far, two (Belgium v Senegal and Australia v Japan) concerned obligations erga omnes partes. The only cases truly concerning obligation erga omnes of customary nature were the Serbian counterclaims in the Genocide cases, but there the legal interest of Serbia as parens patriae was manifest, given the ethnicity of the population concerned. In order to both overcome the hurdles linked to the rules of standing and to make an actio popularis politically more palatable for States, in international legal literature the suggestion was made to relax the requirements for third party intervention identified by the Court’s jurisprudence both under Article 62 ICJ Statute in general (Bonafé, 2012, 754 et seq) and under Article 63 ICJ Statute with specific regard to the construction of a multilateral treaty (Gaja, 2011, 669).

23  No disposition of Part XV UN Convention on the Law of the Sea (‘UNCLOS’) concerning the settlement of disputes hinders a State Party from presenting a claim for the protection of collective interests to the extent that such interests are envisaged in the UNCLOS, such as those relating to the freedom of the high seas, the delimitation of the continental shelf beyond 200 nautical miles, or those which are the object of Part XII dealing with the protection and preservation of the marine environment. In particular Article 290 empowers the competent court or tribunal (or the International Tribunal for the Law of the Sea (ITLOS) itself) to take provisional measures which it considers appropriate under the circumstances to preserve not only the respective rights of the parties to the dispute, but also ‘to prevent serious harm to the marine environment, pending the final decision’.

24  While up to now no case has been presented to the ITLOS exclusively with the purpose of defending a common interest, in the Southern Bluefin Tuna (‘SBT’) case of 1999, the two applicants Australia and New Zealand made clear that their action against Japan was motivated both by their commercial rights and interests and by the common concern of protection of exhaustible marine resources. In their final submissions for the request of provisional measures the parties asked the Court to declare that Japan had violated its obligations under the UNCLOS by, among other shortcomings ‘(d) failing in good faith to cooperate … with a view to ensuring the conservation of SBT, as required by Article 64 of UNCLOS; (e) otherwise failing in its obligations under UNCLOS in respect of the conservation and management of SBT, having regard to the requirements of the precautionary principle’ (Southern Bluefin Tuna, New Zealand v Japan, Australia v Japan, Provisional measures, 1999, 280, paras 27–28).

25  Another case in which community interests have been brought to the attention of the ITLOS is the request made by the International Seabed Authority for an advisory opinion from the Seabed Disputes Chamber under Article 191 UNCLOS on the responsibilities and obligations of States for sponsoring persons with respect to activities in the International Seabed Area (Seabed Disputes Chamber: International Tribunal for the Law of the Sea (ITLOS)). As is well known, Article 136 UNCLOS defines the Area ‘the common heritage of mankind’, a concept which is cognate to that of obligations erga omnes, and, as we have seen, requests for advisory opinions by international organizations are in some respects functional substitutes to interstate contentious proceedings. In its Advisory Opinion of 2011 the Chamber stated that the request ‘arose within the scope of the competences of the Council’ and accordingly affirmed its jurisdiction (Responsibilities and obligations of States for sponsoring persons with respect to activities in the Area, Advisory Opinion, 2011, 26, para 44).

26  As a whole, the dispute resolution system of the ITLOS offers possibilities with regard to actio popularis which have not yet been put to the test (Wolfrum, 2006, 31; Ahmadov, 2018, 155).

27  One of the fundamental goals of the WTO dispute settlement system is ‘to ensure the security and predictability of the multilateral commercial system’ (Art 3.2 WTO Understanding on rules and procedures governing the settlement of disputes (‘DSU’)) and the ‘effective functioning of the WTO’ (Art 3.3 DSU). Furthermore, a complaining party need not prove the injury suffered, which is presumed in the case of a violation complaint (Art 3.8 DSU). Finally, Article XXIII General Agreement on Tariffs and Trade (‘GATT’) allows member States to bring a suit whenever ‘the attainment of any objective of the Agreement is being impeded’.

28  Although the element of reciprocity is central in the WTO obligations, which are in essence bilateral, nothing hinders a party from submitting a case not (exclusively) for the protection of its own interest, but for the protection of the system as a whole. Thus, the system allows a kind of actio popularis (Mavroidis 2000, 777; Ruiz Fabri, 2014, 170; contra Papa, 2011, 593; Actio popularis: Dispute Settlement of the World Trade Organization (WTO)).

29  The first case in which the issue was discussed was the EC – Bananas dispute in 1997. The claim was introduced by four American banana-exporting States, Ecuador, Guatemala, Honduras, and Mexico, and by the US. The defendant, the European Communities (‘EC’), conceded the US interest under the General Agreement on Trade in Services (‘GATS’), given the role of US enterprises in the worldwide commerce of bananas, but it challenged the legal interest of the US under the GATT rules, given the lack of domestic banana production in the US. In its Report of 22 May 1997, the Panel rebutted the EC’s arguments. It first found that nowhere in the DSU is there a rule which makes the request of a panel dependent on the evidence of a legal interest, and that ‘a Member’s … interest in a determination of rights and obligations under the WTO Agreement is sufficient to establish a right to pursue a WTO dispute settlement proceedings’. However, the panel somehow diluted the impact of the first affirmation, by linking the concept of legal interest with that of economic interest, by affirming that the latter must not necessarily be actual, but can be also potential, or indirect (EC – Bananas III, Panel Report, 1997, paras 7.50–7.51). In its Report of 25 September 1997, the Appellate Body confirmed the US locus standi, but it took a different approach, founding its decision in the “broad discretion” of WTO Member States to judge the fruitfulness of their legal action, according to Article 3.7 DSU. It further reduced the scope of the Panel’s arguments by the closing statement that ‘one or more of the factors … noted in this case would not necessarily be dispositive in another case’ (EC – Bananas III, Appellate Body Report, paras 136–38).

30  The question of the interest to make a request for the establishment of a panel was raised again in the Colombia-Ports of Entry case of 2009. Colombia had contested Panama’s locus standi on the ground that it did not have significant production, and at any rate did not export any of the items which were the object of the disputed tariffs raised by Colombia and allegedly contrary to Article I (1) GATT. The Panel followed the approach by the Appellate Body in the EC – Bananas case and affirmed that Panama had ‘sufficiently demonstrated its interest’ by plausibly showing its intention to manufacture and to export those items in the future (Colombia – Ports of Entry, Panel Report, 2009, para 7.329).

31  The jurisprudence of the Dispute Settlement Body shows that despite the normative framework allowing for an actio popularis, States prefer to buttress their claims through a reference to their own legal interest, be it only potential or indirect. A much-preferred path is that of intervention as third party, liberally provided for in Article 10 (2) DSU with regard to the panels and Article 17 (4) DSU with regard to the proceedings before the Appellate Body. Article 6 Working Procedure Rules for Panels permits third parties having a ‘substantial interest’ in the dispute at hand to be present at the first substantive meeting of the panel. However, in some cases, the first being the EC – Bananas III case in 1997, the panels have recognized ‘enhanced third parties rights’, permitting the participation of some third parties at all meetings between the Panel and the parties, with the exception of the phase of interim review (EC – Bananas III (US), Panel Report, 1997, para 7.8). However, the grant of enhanced third party rights is within ‘the sound discretion’ of the panel (US – 1916 Act (EC), Appellate Body Report, 2000, para 150).

32  In order to duly apprehend the different shapes of actio popularis, interstate and individual applications shall be dealt with separately.

33  Article 33 ECHR permits interstate complaints concerning the violation of any right provided for in the Convention and its Protocols and committed against any individual. The concept had already been expressed by the former President of the European Court of Human Rights (ECtHR), Henri Rolin, as follows: ‘the interest underlying a State complaint will sometimes not be different from the one of seeing the assumed obligations be respected erga omnes’ (‘si on désire à toute force rechercher l’intérêt dont s’inspireront les requêtes gouvernementales, on constatera qu’il ne sera parfois pas autre que celui que leurs auteurs prétendront avoir à ce que les engagements soient respectés … erga omnes’, Rolin, 1956, 8, translation by the Author).

34  So far there have been 26 cases of interstate applications. The first two were introduced in 1956/57 by Greece against the United Kingdom and concerned the state of emergency and restrictions of civil liberties imposed in Cyprus by the British Government (Greece v United Kingdom, 1956; Greece v United Kingdom, 1957).

35  The third case, Austria v Italy, already mentioned, concerned the requirement of equitable process in criminal proceedings against some German-speaking Italian citizens from South Tyrol accused of murder. In its decision on admissibility the European Commission of Human Rights famously said that the ECHR constituted a European ‘ordre public’, and for that reason each State Party was entitled to bring a claim against another without having to prove a specific legal interest (1961, at 113 et seq).

36  The subsequent two cases were introduced by Denmark, Norway, and Sweden (as well as by the Netherlands in the first case) against Greece, and concerned various violations committed by the military government established in Greece in 1967 (1968, at 690 et seq, finding on violations). The second application concerned in particular the requirement of equitable process in criminal proceedings against political opponents before a Greek military tribunal.

37  Two related cases were lodged by Ireland v United Kingdom and concerned the pretrial detention in North Ireland of alleged IRA terrorists and police interrogation techniques (1976, at 513 et seq, finding on violations on both counts). Ireland then brought the case before the ECtHR, which decided in 1978 that the interrogation techniques were an inhuman and degrading treatment (Ireland v United Kingdom, 1978, 90).

38  The three following cases were brought by Cyprus v Turkey and concerned various violations committed in the north part of Cyprus occupied by Turkey from 1974 onwards (1975, at 83 et seq; 1978, at 101 et seq). Later in 1994 Cyprus presented a new case against Turkey concerning continuous violations in North Cyprus. The case was considered admissible by the Commission in 1996 and finally judged by the ECtHR in 2001. The request by Cyprus for just satisfaction was accorded by the Court in a subsequent decision in 2014.

39  Later on, a joint action by France, Norway, Denmark and the Netherlands v Turkey concerned various violations as a consequence of the military coup in Turkey in 1980 (1983, at 1 et seq). Fifteen years later another case was brought by Denmark v Turkey, concerning bad treatment (specifically of a Danish citizen, but also in general) in Turkish prisons during pretrial detention. The parties reached a friendly settlement in 2000, approved by the ECtHR on 5 April 2000.

40  The following three cases were brought by Georgia v the Russian Federation and concerned a coordinated policy of arresting, detaining, and expelling Georgian nationals from the territory of the Russian Federation in autumn 2006 in the aftermath of the conflict in the Georgian regions of Abkhazia and South Ossetia, as well as violations committed during the armed conflict. In 2014 the Court decided in the merits the first of such applications, finding the Russian Federation in violation of various norms of the Convention and its Protocols. In 2018 Georgia brought a new case against the Russian Federation concerning the alleged recent deterioration of the human rights situation along the administrative boundary lines in the region.

41  Eight cases were filed by Ukraine v the Russian Federation between 2014 and 2018 and concerned the events leading up to and following the annexation of the Crimea peninsula by the Russian Federation as well as the situation in Eastern Ukraine under the control of rebels supported by the Russian Federation.

42  Finally, in 2016 a case was brought by Slovenia v Croatia concerning the actions of the Croatian judiciary and executive, in relation to legal claims brought by the bank Ljubljanska Banka concerning the fate of assets and receivables following the disintegration of the former Socialist Federal Republic of Yugoslavia.

43  As is easy to see, with the only exceptions of the two Greek cases of 1967–70 and the Turkish case of 1982 (and partially the one of 1997), in all other instances the applicant State had narrow national ties with the individual victims of the alleged violations, nor was it even the State of citizenship. While this does not deflect from the objective character of the obligations and the general interest protected by the interstate applications (see Ireland v United Kingdom, 1978, 90–91, para 239), it seems that Member States have been so far reluctant to exploit the wide potentialities of the actio popularis enshrined in the interstate settlement mechanisms provided for by the Convention. The reasons are undoubtedly of political nature (Risini, 2018).

44  Article 34 ECHR permits individual complaints concerning the violation of any right provided for in the Convention and its Protocols and of which the applicant, being an individual, a group of individuals, or a non-governmental organization (‘NGO’), claims to be the ‘victim’. Alongside other admissibility requirements stated in Article 35, which limit individual locus standi, the notion of victim, as elaborated both by the former Commission and later by the ECtHR, excludes the possibility of an actio popularis. While it is true that the jurisprudence of the Court has developed different notions of victim, such as the indirect victim and the potential victim, which in some cases present a striking similarity with an actio popularis, nonetheless the fundamental distinction is that the applicant must make a plausible argument that the alleged violation personally concerns her or his own rights.

45  While the Court’s jurisprudence is well settled with regard to the locus standi of groups and NGOs, having often rejected their applications on behalf of their members for violations allegedly suffered by the latter, the same cannot be said with regard to applications by individuals, where the jurisprudence is more nuanced.

46  The Commission and the Court have always refused to judge the legitimacy of domestic legislation in abstracto, and in some cases have expressly used the notion of actio popularis in order to reject it. Klass and Others v Germany is an example:

47  However the Court has specified that this criterion ‘is not to be applied in a rigid, mechanical and inflexible way’ (see eg Karner v Austria, 2003, para 25; Centre for Legal Resources on behalf of Valentin Campeanu v Romania, 2014, para 96). The Campeanu case has been considered a landmark in ECtHR jurisprudence because, despite the fact that the applicant NGO was not recognized as an indirect victim, the Court considered it as a de facto representative of a deceased disabled person, with the avowed goal not to leave the rights of the most vulnerable people without protection and not to allow ‘the respondent State to escape accountability’ (Centre for Legal Resources, para 112). However, in legal literature the point was made that the Centre for Legal Resource’s standing to act on behalf of Mr Campeanu had not been previously challenged before domestic courts (Ahmadov, 2018, 171).

48  The subtlest difference between the locus standi of a victim and an actio popularis concerns the status of a potential victim, ie the individual who fears that, on the basis of existing legislation, he could be targeted by a State measure in violation of a protected right. This would be the case if the law, in the absence of an individual measure of implementation, requires him either to modify his conduct or to be at risk of being prosecuted (see Norris v Ireland, 1988, para 31), or if he is a member of a class of persons who risk being directly affected by the legislation (see Johnston and Others v Ireland, 1986, para 42; Open Door and Dublin Well Woman v Ireland, 1992, para 44).

49  While in most cases the evidence of the facts is strong enough to prove the plausibility of the fear and the state of anguish which the potential victim endures, it is not always clear how the Court distinguishes between a qualified potential victim and an individual who just cares about the existence of statutes or of a general practice allegedly in violation of one of the rights enshrined in the Convention (Ahmadov, 2018, 165). So, in the above-mentioned Klass case, the Court, after having denied the permissibility of an actio popularis in general terms, nevertheless found that the contested German legislation had instituted a system of surveillance under which all persons in the Federal Republic of Germany (‘FRG’) could potentially have had their mail, post, and telecommunication devices monitored, without their ever knowing this, and therefore, that the disputed legislation directly affected all users or potential users of the postal and telecommunication services in the FRG. It seems that the relevant factor in the case at hand was the ‘real and effective’ character of the risk and the imminence of the infringement (see also Zacharov v Russia, 2015, para 179).

50  Besides its liberal jurisprudence on the notion of victim, the ECtHR has also developed a rich jurisprudence on third party intervention, starting with Winterwerp v The Netherlands of 1979, in which the government of the United Kingdom had requested permission to intervene, which was granted (Winterwerp v The Netherlands, 1979, para 7). The practice of granting intervention by contracting States or by NGOs originally grounded on Article 38 Rules of the Court (later amended as para 2 to Rule 37) later found its legitimacy in Article 36 (2) ECHR (as amended by Protocol 11 in 1998), which reads: ‘[t]he President of the Court may, in the interest of the proper administration of justice, invite any Contracting State which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings’. However, the Article is silent on the reasons for requesting permission to intervene (ie for the protection of own legal interests or of collective interests) as well as on the modalities of intervention (ie through amicus curiae or intervention in hearings), and the practice of the Court is far from transparent. Interveners not granted leave are rarely if ever informed of the reasons (Burli, 2017, 186).

51  In conclusion, the ECtHR jurisprudence on the admissibility of claims by individuals with regard to their legal interest, as well as the practice of granting third party intervention, is marked by a high degree of discretion, which makes an overall assessment highly problematic.

52  Also with regard to the jurisprudence of the Inter-American Court of Human Rights (IACtHR), interstate and individual applications will be dealt with separately.

53  Article 45 Inter-American Convention provides that each State Party may apply to the Inter-American Commission in the case of a violation of the Convention by another State Party. The competence of the Commission is optional and based on reciprocity (Art 45 (2)). In the event that the dispute between the parties cannot be amicably settled, the Commission writes a report on the facts and its conclusions. The Commission itself or one of the parties may then apply to the Inter-American Court. To date only nine of the 23 Member States have rendered the optional declaration of acceptance of the Commission’s competence but not a single case has been presented to the Commission.

54  The reasons for this apparent lack of interest among State Parties are manifold. Among the most relevant are firstly that unlike the ECtHR, the individual right of petition was recognized from the beginning and even an individual may exercise an actio popularis (see sec B.4(b) above). Secondly the Commission may initiate ex officio proceedings against a State Party (Article 24 Rules of the Commission, in force from 1 August 2013).

55  Article 44 Inter-American Convention allows all individuals, groups, or NGOs to apply to the Commission claiming a violation of the Convention by a State Party. The Article does not specify that the individual applicant must be a victim of that violation, nor does Article 23 Rules of the Commission. Nevertheless, recent trends in the jurisprudence may raise the suspicion that the Inter-American Court is coming closer to the jurisprudence of the ECtHR with regard to the locus standi of individuals. In the Gonzalez v Costa Rica case of 1996 the Commission held that:

Such alignment may be traced in the separate opinion by the then President of the Court, A Cançado Trindade, for whom ‘the legitimatio ad causam of the individuals under the American Convention distinguishes itself … from the rationale of the institute of the actio popularis’, and comes closer to the concept of class action because this latter concept requires ‘more clearly the existence of victims, even though potential’ (Comunidad de Paz de San José de Apartadó v Colombia, 2002, Concurring Opinion of Judge A. A. Cançado Trindade, paras 3–5).

56  In an Advisory Opinion of 2016, through a literal interpretation of Article 1 (2) of the Convention on the meaning of ‘person’, the Inter American Court denied that a legal person (as opposed to a natural person) could qualify as a victim, with the argument that legal persons are fictions lacking any real material existence (Advisory Opinion OC-22/16, 2016, para 38). However, the Court expressly admitted legal standing to some legal persons, such as trade unions and indigenous communities, which act on behalf of natural persons, and whose claims had been declared admissible in the past (at para 71 et seq).

57  It is discussed in the scholarly literature whether Article 14 International Criminal Court (ICC) Statute provides for a sort of actio popularis. Under this provision a State Party to the Statute may refer a ‘situation’ to the Prosecutor, who will then proceed to a preliminary examination for the purpose of determining whether one or more specific persons should be investigated, unless he/she is of the opinion that such investigations would not be warranted in the interest of justice (Art 53). The major legal effect of a State Party referral is that it can trigger the initiation of an investigation (if the Prosecutor decides to do so) without the need for a judicial authorization by the Pre-Trial Chamber.

58  The ability of each State Party to refer a situation is an expression of the fact that the international crimes within the jurisdiction of the Court are ‘crimes of concern to the international community as a whole’, as affirmed in the ICC Statute (Preamble, para 4), as well as in Articles 1 and 5 ICC Statute. Prior to the final negotiations at the Rome conference, as the principle of subsidiarity of the ICC’s competence was not yet clearly formulated, many delegations had supported a proposal to restrict the ability to refer a situation only to some ‘interested’ States Parties, but the proposal then lapsed. Under Article 18 ICC Statute, the Prosecutor is required to notify States Parties and other possibly interested States about the referral in order to give them an opportunity to effectively investigate and prosecute the crimes in question if they so wish.

59  In practice until now the trigger mechanism of Article 14 has been used only once by States Parties in relation to the situation prevailing in another State. On 26 September 2018, the governments of Argentina, Canada, Chile, Colombia, Paraguay, and Peru referred to the Prosecutor the situation prevailing in Venezuela since February 2014, ie the alleged commission by the Venezuelan government of numerous crimes against humanity as part of a generalized and systematic attack against the civilian population. It has to be noted, however, that the situation was already under an ongoing preliminary examination by the Office of the Prosecutor from February 2018, and, according to an official statement made by the Prosecutor, Ms Bensouda, the step by the six States Parties would not affect the current examination.

60  On the contrary, Article 14 has been sometimes used by States Parties for ‘self-referrals’, ie for referring a situation in its own territory and involving its own nationals. Such cases concerned Uganda (2004), the Democratic Republic of Congo (2004), the Central African Republic (2004 and 2014), Mali (2012), the Union of the Comoros (2013), Gabon (2016), and Palestine (2018) (Referral by a State Party: International Criminal Court (ICC)). On the one hand, such practice, while not excluded by Article 14, raises some concerns about the risks of political manipulation on the part of the referring State in situations of civil war. On the other hand, commentators have expressed doubts on the effectiveness or ‘neutrality’ of referrals. In particular, ‘there is no basis for the view that such referrals would be any less “politicized” than self-referrals’ (Akhavan, 2010, 119).

61  The overview of international judicial practice shows a marked reluctance by States to take legal action against another State for the defence of collective interests, even when this power is provided for in the conventional instrument establishing an international court, with the express goal of protecting common interests, as is especially the case of regional courts for the protection of human rights. The propensity of individuals or interest groups to bring an actio popularis before a regional court is decidedly greater, but it collides with the practical need of the courts not to overly stretch the notion of indirect or potential victim.

62  Once the existence of an actio popularis before international courts is admitted, one should not overestimate jurisdictional problems. Contrary to some views (Seidl-Hohenveldern, 1975, 806), the lack of compulsory jurisdiction in international law does not seem to detract from the possibility of recognizing an actio popularis. In particular the doctrine of the necessary third party, which is sometimes evoked in this regard, does not seem to play any role. As is well known, the ICJ refuses to exercise its jurisdiction in cases in which the very subject matter of the dispute concerns the responsibility of a third State which does not accept the jurisdiction of the Court (Indispensable Party). In the case of a dispute concerning an erga omnes obligation it would be absurd to maintain that, the obligation being due to a group of States or even to the international community, each State should be considered only for that reason a necessary party to the proceedings. All that can be conceded is that each State would have a legal interest to intervene in the proceedings under Article 62 ICJ Statute (or under Article 63 in case of the construction of a treaty). On the contrary, the absence in the process of the especially affected State (in the meaning of Article 42 ILC Articles), if any, could raise difficult questions of coordination with the requests of the applicant State(s), and in certain circumstances could even lead the Court to decline its jurisdiction (Thirlway, 2005, at 319).

63  Occasionally in international legal literature other procedural problems have been touched upon, which could arise in the context of the claim brought by a State ‘on behalf’ of the international community, such as questions of admissibility, the regime of evidence, and the conditions for the enactment of provisional measures (Bonafé, 2015, at 164).

64  From a more general perspective, some doubts could be raised about the capability of international adjudication to effectively protect the common interest. To start with, the procedural law of international courts and tribunals on the whole is not designed to facilitate claims for the protection of public goods. It has to be noted that obligations erga omnes are those owed to the ‘international community as a whole’. The concept is deliberately broader than ‘international community of States’ as used in Article 53 Vienna Convention on the Law of Treaties, and it surely encompasses international organizations, and possibly individuals and NGOs as well. Therefore, in international legal literature, devices have been proposed in order to appropriately reflect the collective aspects of the issues at stake, such as the enlargement and/or relaxation of the requisites for third party interventions (Benzing, 2006, 398), the permissibility of amicus curiae briefs by States and more importantly by interested sectors of civil society that otherwise would not have access before international courts and tribunals (Wiik, 2018, 542), or the strengthening of fact finding powers of the courts besides the evidence submitted by the parties (Devaney, 2016, 255).

65  With the due distinctions, it seems safe to conclude that in general ‘the move towards recognition of global public goods does not appear to have had many ramifications at the level of general principles of procedure that relate to the protection of such public goods’ (Nollkaemper, 2012, 791; for a similar criticism see also Gabčikovo-Nagymaros Project, Hungary/Slovakia, 1997, Separate Opinion by Judge Weeramantry, 117–18).

66  As for the goal of the judicial claim, according to Article 48 (2) ILC Articles on State Responsibility any State entitled to invoke the responsibility may claim from the responsible State the cessation of the internationally wrongful act, assurances and guarantees of non-repetition and performance of the obligation of reparation in the interest of the injured State, if any, or of the beneficiaries of the obligation breached. It is evident that a judicial proceeding in itself may not guarantee the attainment of such goals, the major hurdle being that of (the lack of) adequate instruments to ensure compliance with the judgment. But in the case of a legal action for the protection of a common good, the enforcement aspect may prove doubly discouraging because some common interests may be attained only by the involvement of all actors, so that enforcement against only some of them would not prove sufficient.

67  From a different perspective, one should also be aware of some risks which could be inherent in a too broad handling of actio popularis. First among them is the risk of wearing out the judicial function for political purposes. Another even more worrisome risk would be the exploitation of the judicial course by a State not for the protection of true common values but in the service of powerful lobbies. This risk seemed to have materialized in the request for establishment of a WTO panel by Ukraine against Australia for certain Australian laws and regulations that impose trademark restrictions and other plain packaging requirements on tobacco products and packaging. Ukraine claimed that some Australian laws and regulations enacted in 2011 were inconsistent with many rules of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), with Article II Agreement on Technical Barriers to Trade, and with Article III (4) GATT. It is noteworthy that Ukraine did not export any tobacco products to Australia, and, unlike three of the four other complainants (Cuba, Dominican Republic, Indonesia), it is party to the 2003 WHO Framework Convention on Tobacco Control, whose guidelines include exactly the kind of measures taken by Australia. British America Tobacco had publicly admitted that it was helping meet Ukraine’s legal costs in the case against Australia. However, under pressure from the European Union, on 28 May 2015 Ukraine requested the panel to suspend the proceedings, and a year later due to the inactivity of the parties the authority for establishing a panel lapsed.

68  Given the scant judicial practice up to now, and the wealth of debatable issues, one could be tempted to raise the question whether international courts are indeed the best suited actors to make effective decisions on the protection of collective interests or collective goods (Nollkaemper, 2012, 771). Other institutional paths, functionally equivalent to an actio popularis, such as recourse to the UN General Assembly or the UN Security Council under Article 35 UN Charter should not be overlooked (Schweisfurth, 2002, 609).

69  The existence of different international courts and tribunals, each with distinctive spheres of competence and distinctive standing requirements, make it impossible to affirm a customary international law right of actio popularis. Therefore, the feasibility of an action brought on behalf of the international community and in order to protect collective interests has to be assessed taking into account the distinctive features of each international court and tribunal.

70  More importantly, when confronted with a claim for the protection of collective interests, to a much larger extent than in any other kind of dispute, international courts are compelled to reflect on their own role as law-maker, and according to their judicial policy of restraint or activism they may reach opposite results (Ahmadov, 2018, 183 et seq). This could have unpredictable effects on the outcome of the dispute at hand and eventually on the protection of the underlying collective interests.

71  In a contribution from 2003, Simma expressed doubts about the customary nature of the rights of States other than the injured one, including the entitlement to legal action, as codified in Article 48 ILC Articles on State Responsibility, labelled as a mere ‘symbolic provision’ (2003, at 442). However, one should not forget that Article 48 merely empowers States to take action, but it does not oblige them to do so. In the words of Crawford, it is at any rate ‘better to give States standing in Court to protect what they perceive as global values than to leave them only with non-judicial means of dispute settlement, whether in the guise of countermeasures or under the rubric of “responsibility to protect”’ (Crawford, 2011, 225).