International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ

In: The Law & Practice of International Courts and Tribunals

Abstract

By adjudicating inter-State claims, international courts can also contribute to the protection and promotion of community interests. However, the main obstacle faced by the International Court of Justice (ICJ) relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. As procedure may guide and shape the application of substantive law, it should itself be interpreted and developed in a manner to ensure community interests. By using its power to “frame rules for carrying out its functions”, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted for multiparty aspects, notably the rules on third-party intervention, with the aim of protecting community interests and enhancing the Court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals.