Abstract
There is an essential conflict at the heart of the international judicial function. On the one hand, interstate courts and tribunals (ict s) are viewed as guardians of international legality; organs of the international community itself. On the other, they are the tools of their creator states. Accordingly, traditional conceptions of the international judicial function frame ict s as dispute settlors pure and simple, a perspective which comes into conflict with a more community-oriented role for ict s. This article explores these different approaches to the international judicial function, presenting them as two opposing perspectives: one bilateralist, one based on the community interest in legality and the international rule of law. It then assesses the practice and procedure of the icj, itlos, and the wto dsm in relation to jurisdiction and admissibility against these differing views of the international judicial function. It concludes that, although the bilateralist perspective still holds considerable sway, a more systemic, community interest-oriented international judicial function is clearly emerging in the field of international adjudication.
1 Introduction
Community interest has progressively obtained ever more recognition within the international legal order. From “global public goods”1 to “universal values”,2 from international institutions3 to the development of “community-oriented”4 rules and obligations,5 there is now little doubt that international law looks beyond the individual interests of states. The impact of the community interest on international law – and on the way we perceive international law – is undeniable.
In the midst of these developments sit interstate courts and tribunals (“ict s”). These bodies have a complex part to play in the international legal order. The institutional role of ict s is not always clear, nor generally agreed upon; the answer to the question ‘What are international courts and tribunals for?’ is likely to elicit quite different answers depending on whom is asked. For some, there is a clear alignment between the community interest and the role of ict s. They have certainly played an important part in the development of community interest related legal structures.6 From a more general perspective, as courts and tribunals, they are often deemed to have an inherent function of promoting and upholding the rule of law. They thus represent to some at least, the guardians of international legality; organs of the international community itself.
There is, however, a contradiction at the heart of the international judicial function; a tension between the community interest and the legal foundations of ict s. At the same time as being seen as organs of the community, ict s remain the creations of states. Their powers and purposes derive from their constitutive documents.7 From this perspective, ict s are simply tools of their creators. They have no power above and beyond that which has been conveyed to them by states, and no role beyond that of hearing and adjudicating bilateral disputes between their creator-states.
There is thus an essential conflict between these two different visions of the role of ict s; between two opposing conceptions of the international judicial function. At one end of the spectrum lie the more traditional approaches that derive from early, bilateralist, private-law-type conceptions of the functioning of international law.8 At the other, we see a more public-law-style or community-oriented conception of the role of courts, developed in domestic law, being applied to the international judicial arena.9
This article analyses these different approaches to the international judicial function, assesses the extent to which they reflect current ict practice and procedures, and explores the implications for the international legal system. Section 2 begins with an overview of traditional approaches to the international judicial function and the broader implications of such perspectives. It explains the consequences of the traditional view, including its potential to limit community interest-related adjudication. Section 3 then explores the emerging systemic or community interest-oriented approaches to the international judicial function. It analyses the role of ict s in ensuring compliance with international law, and it presents the international rule of law as a community interest that underlies this systemic function of ict s. Between Sections 2 and 3, these different approaches to the international judicial function are compared, contrasted, and presented as falling between two opposing ‘poles’: bilateralism and the community interest.
Section 4 then tests these theories against the actual practice and procedures of ict s. Putting the spotlight on adjudicative procedures, specifically those related to jurisdiction and admissibility, it analyses the extent to which the role adopted by the three major interstate adjudicative bodies in international law aligns with one or other of these poles. The International Court of Justice (“icj”); the International Tribunal for the Law of the Sea (“itlos”); and the World Trade Organization Dispute Settlement Mechanism (“wto dsm”) are assessed in relation to the pre-discussed approaches in order to paint an accurate picture of the international judicial function as reflected in practice and doctrine. Section 5 concludes by considering these findings and their consequences for the international legal system.
2 Traditional Approaches to the International Judicial Function
Traditional approaches to the role of international judicial institutions are based squarely on the equal sovereignty of states.10 They are closely connected to the notion of the horizontality of the international legal landscape and the bilateralist vision of international legal obligation and responsibility. Building on such foundations, the logical conclusion is that an international court does not sit above states parties to a case, but rather between them. The rational consequence of the classical conception of sovereign equality and horizontality is thus that no state-created court (and indeed, following this traditional logic, this would be the only kind of international court that could possibly exist) could take a position hierarchically superior to that of a state or states. Under this understanding, it is impossible for states to agree, even collectively, to give an entity the power to do something that even a state could not lawfully do, i.e. judge a state and make a decision which would be legally binding upon it.11 In “classical international law”, therefore, “courts would see themselves as settling disputes between two contending parties (largely states), with little room for deference to either of them”.12 Accordingly, ict s are “mere instruments of dispute settlement whose activities are justified by the consent of the states that created them and in whose name they decide”;13 “merely a tool in the hand of the parties whose sole purpose is to settle the dispute between them”.14
This also emphasises the central importance that such approaches place on the intentions of states when they created the judicial body in question. From a state-centric perspective, the nature and extent of the functions and role of a judicial body are determined by reference to the powers that are granted to it in the constitutive agreement. This can be understood as integrating the notion that the function(s) of ict s are those for which states have created them, and nothing more or else.15 A court is designed for a particular purpose and this is delimiting of its institutional role.16 The only powers that may be exercised by an international court are those that have been originally conferred, i.e. in the constitutive document.17
A slightly broader view might also incorporate some form of implied powers doctrine. To follow the logic relating to international organisations, states are said to create a particular body for a particular purpose and certain powers may be implied where they are necessary for the fulfilment of that purpose even though they may not be explicitly delegated in the constitutive agreement.18 Nevertheless, the limiting factor here remains the function or purpose for which states originally created the judicial institution. In this sense they are bound to the role dictated by the purposes of their original creators.
Thus, this conception of the role of courts is not fundamentally different to that of an arbiter. Indeed, the traditional distinction made between adjudicatory bodies and arbitration is that of the level of control of states versus the autonomy of the body itself with regard to the process and proceedings.19 This is a difference of degree rather than of kind. From this perspective, courts and adjudicative bodies offer a circumscribed and stable method of doing what is essentially the same thing: dispute settlement, pure and simple.20 There is no room here for the application of broader concerns and interests; nor for any notion of the purpose of courts beyond the needs and rights of the parties to the case; nor for any authority of courts that is above and beyond states in the sense of some kind of public authority equivalent to domestic judiciaries.21
This comes very close to the role that is assigned to ict s by Posner and Yoo in their seminal (although by no means uncontested22) article on judicial independence in international tribunals.23 Their analysis is based on the understanding that states create international tribunals purely with a view to furthering their own individual interests with regard to dispute resolution.24 International tribunals, in their view, are “simple, problem solving devices”.25 The authors argue that, where ict s go beyond this simple role of dispute resolution and “make decisions based on moral ideals, the interests of groups or individuals within a state, or the interests of states that are not parties to the dispute”, this will not be accepted by states and such tribunals will thus be “ineffective”.26
Although Posner and Yoo are primarily concerned with political feasibility rather than doctrine,27 their approach nonetheless serves to underline some of the key features of the traditional perspective on the role of ict s. The link that they draw between individual state interest or benefit with effectiveness on the one hand, and a broader role of ict s with ineffectiveness on the other,28 highlights a number of consequences of this type of approach. It relies, notably, on the principle of state consent.29 Posner and Yoo do not conceive of international law as providing for any form of higher-order, compulsory adjudication process which might contravene states’ individual interests. Their rational choice framework is based on this calculation: “[r]ational states will not submit to compulsory jurisdiction unless they believe that they will benefit from it.”30 State consent is therefore assumed to be necessary for ict s to conduct their adjudicative role. This has implications all the way through the judicial process, from admissibility and jurisdiction to the law that may be applied, and to the nature and legal status of the judgment itself.
Furthermore, the approach is also based on the exclusive relevance of the interests of the parties to the dispute.31 This too has wide-reaching implications relating inter alia to the kinds of cases that may be brought and the procedures according to which such litigation is conducted. It may be likened to private or civil litigation within states.32 In such cases, “[t]he purpose of such jurisdiction is to resolve the issues between the parties and end the dispute.”33 The rights and interests at issue are those of the parties to the case, and not those relating to broader societal concerns.34
As should be immediately apparent, this conception of the role of ict s is greatly limiting if not entirely stifling to the protection and representation of wider interests, including community interests, within international adjudication. If the purpose of the adjudication is the protection and promotion of individual state interests, there are few tools appropriate for the promotion and protection of the community interest.35 Perhaps even more importantly, if the function of ict proceedings is purely the settlement of a dispute between two states, then cases that are not based on a bilateral dispute (e.g. cases that are based on wider interests) have no place in adjudication. The implication would be that such cases would not be admissible before ict s, or at least that the non-bilateral aspects would not be heard.36
Thankfully, however, these approaches lie on one end of the spectrum. The following section explores the opposite end: community interest-oriented approaches. These differ significantly from those covered in this section, and provide an alternative logic through which to understand the place of international adjudication.
3 Towards a Community Interest-Oriented Approach
In contrast to the horizontalist, bilateralist picture set out above, the other end of the spectrum presents ict s as having a central, systemic role within the international legal order. According to this perspective, the primary purpose of ict s is not the settlement of bilateral disputes, but rather the ensuring of compliance with international law; the upholding of the international rule of law.
3.1 Upholding the International Rule of Law
At least at the domestic level, it is commonly understood that courts and tribunals are inherently and institutionally assumed to uphold and promote the rule of law.37 The design of an adjudicative body reflects its function,38 and it can be said accordingly that the permanency and regularity of a court or tribunal and its procedures (in comparison to an arbitration agreement for example) reflect the fact that these bodies serve the purpose of preserving the rule of law over the arbitrary rule of force and the resort by states to self-help measures.39 This reflects a broader “interest in the proper administration of justice”40 in addition to the private interests of the parties to the case.
These wider interests may be understood as coinciding with what Helfer and Slaughter term the “global community of law”.41 They define this concept as a “community of interests and ideals shielded by legal language and practice” in which “participants understand themselves to be linked through their participation in, comprehension of, and responsibility for legal discourse”.42 Helfer and Slaughter’s ‘community of law’ is relational and interactional; it amounts to a “web” or “network” of actors with a common, legality-focused goal.43 It is thus different from the concept of community interest,44 but may be understood as incorporating a community interest in law and legality as one of the connecting factors in this community; an interest in the neutral and “apolitical” application of international law.45 In response to Posner and Yoo’s theory of ict s discussed above, Helfer and Slaughter argue that certain ict s46 “do far more … than simply settle disputes between contesting parties”.47 By promoting legality, “they act as trustees that enhance the credibility of the promises that governments make to one another.”48 Like Posner and Yoo, Helfer and Slaughter are also focused on the political feasibility of such adjudicative structures. Unlike Posner and Yoo, they argue that states are indeed willing to accept and have actively created independent judicial structures which incorporate such broader interests as the rule of law and legality into their mandate and decision-making.49
It may be noted in this regard that the respective constitutive documents of the icj, itlos, and wto all focus on the peaceful settlement of disputes as a common interest and the desire to maintain stability.50 The icj in particular is often seen in the context of the setting up of the UN and the desire to avoid the scourge of war, mirroring some of the overall aims of the UN.51 As Judge Lachs observed in his Separate Opinion to the Lockerbie case, “the Court is the guardian of legality for the international community as a whole, both within and without the United Nations.”52 Shany even refers to the creation of the icj as “part of an ideology-driven attempt to strengthen the rule of law in international affairs”.53 itlos and the UN Convention on the Law of the Sea (“unclos”) more generally is at least in part aimed at providing a framework to combat the uncertainty and lawlessness that once reigned on the high seas.54 The wto regime is also premised on the belief that all participants have an interest in certainty, stability, and fair treatment inter se.55
As noted above, the upholding of the rule of law is seen by some as an inherent function of a court, and thus implies inherent powers because of the role that courts play within a legal system.56 The permanency of the body in question is part of this and is certainly one aspect that is necessary to “maintain the judicial nature of the institution”.57 As Judge Donoghue has written of the Permanent Court of International Justice, the predecessor of the icj, its permanent, standing nature was an “innovation£, contributing towards the notion or conclusion that “was created by and was accountable to the broader community of nations, not just to the states that were parties to a particular dispute.”58
This focus on the rule of law permeates all legal disputes to some extent. The international rule of law may indeed be viewed as a community interest, promoted and protected through the assessment and assurance of compliance of states with their international legal obligations.59 There can be such an interest in the enforcement of private law rules and obligations, although this generally relates to the public interest in the enforcement of law itself rather than overlap between the common interest and the individual interests of the parties.60 In Lowe’s words, the community (or “public”61) interest “here does not include our substantive rights and duties … but rather the integrity of the procedure by which our private rights are enforced”.62 The rule of law itself, narrowly construed, is here the public interest that takes shape and is engaged by the enforcement of private rights and duties.63
Upholding the rule of law is therefore inherently about ensuring compliance with international legal rules.64 Here, then, is a fundamental difference between the bilateral list approaches and these systemic approaches: the ultimate goal is not settlement, but legality. This aim is objective – it relates to the factual adherence of state conduct to their legal obligations – rather than subjective, i.e. the protection and/or promotion of individual state interests.
3.2 The International Judicial Function and Public Authority
This focus on compliance rather than dispute settlement may seem at first glance to be a relatively insignificant difference, but it has fundamental implications. This change in the logic underlying international adjudication opens the door to a very different role for ict s. Rather than sitting between states as a tool for them to use in their relations with each other, this logic grants ict s a centralised position within the system of international law, performing a systemic role in the interest of the community and objective legality rather than purely in furtherance of individual state interests.65 Thus, the purpose of the judicial body is not only the settlement of the dispute, but also to ensure and enforce compliance with the law more generally.66
This has far-reaching implications. Importantly, it brings ict s within the remit of a public function. Shelton describes this focus on compliance as a “public, even constitutional aim”.67 Such an aim could underly broader functions, such as the existence of a broader advisory capacity or even judicial law-making in a gap-filling capacity.68 Not only that, such a function positions ict s above the will of states; it implies that they hold a form of public authority.69 Indeed, such functions are public primarily because they require and necessitate public authority.70
The power to adjudicate from the perspective of compliance is fundamentally a public prerogative. The capacity and competence to pronounce authoritatively on matters of legal interpretation and application differs considerably from the interpretation and application of law in a private capacity. Such a role of courts is a key distinguishing feature between legal orders which operate within a public legal system and those which do not, i.e. purely private-law systems.71 The primary difference between the two lies in the fact that in the latter there is no “central, public authority through which conflicts among individuals over purported rights can be resolved”.72 A judicial system provides an “impartial judge”; an “independent arbiter” with the authority to pronounce upon the determination of rights and obligations of others; “to exercise binding judgment over parties to a dispute concerning rights”.73 Thus, a “legal system differs from a state of nature by providing conditions for the objective resolution of legal disputes”.74
It is clear from the above that the compliance-based conception of the role of ict s represents a fundamentally different view of the international legal order, and has important implications. It necessarily implies a different focus of adjudication. Depending on the case, a rule-of-law-focus may bring elements to the fore that would be neglected or ignored entirely as being extraneous to the bilateral dispute at hand.
Such a role may be more inquisitorial than adversarial in nature and style.75 In an adversarial system, the adjudicator relies on the interested parties for the acquisition of relevant information.76 The advocates of the parties are incentivised to collect and provide evidence that supports the case of their client.77 By contrast, the inquisitorial method is based on a more centralised, impartial form of information collection. In such a system, the judge or investigator is tasked with collecting and evaluating pertinent evidence.78 A bilateralist approach to international dispute settlement, inherently based as it is on the interests of the parties to the dispute, would seem by nature to favour the more “partisan”79 adversarial method. By contrast, a system of adjudication focused on a community interest in legality could be more easily aligned with the impartiality of the inquisitorial method.80
Perhaps most importantly, focusing on international legal compliance is more inclusive towards those kinds of cases which are not bilateral in nature: cases that involve a common or community interest rather than (or in addition to) individual state interests. As noted above, by concentrating on the compliance of states with their international legal obligations as such (rather than merely on the injury caused to other states), ict s serve the community interest in the international rule of law. Beyond this, however, such a perspective broadens the types of cases which may come before ict s. As will be discussed below, traditional bilateralist structures are often premised upon injury having been caused to a state, rather than simply a law having been broken. A focus on compliance rather than injury opens the door to cases that do not necessarily involve injury to individual states, but rather to a community of states, or to the international community as a whole. Such cases require a shift in perspective from “simple”81 dispute settlement to a focus on compliance and the rule of law.82
With this in mind, the following section conducts an examination of the practice and procedures of ict s in relation to jurisdiction and admissibility. This will then facilitate an assessment of the extent to which ict s follow the different approaches discussed in this section and the preceding section.
4 In Practice: Spotlight on Admissibility and Jurisdiction
We have seen thus far that traditional approaches perceive a limited role for ict s, namely as dispute settlers. This has been contrasted with a more systemic role based on a community interest in upholding the rule of law. This section analyses the actual practice of the three main interstate adjudicative bodies (the icj, itlos, and the wto dsm) so as to assess the extent to which either approach accurately describes the modern international judicial function.
It was noted in Sections 2 and 3 above that one of the most important implications of the approach taken is the kinds of cases that can come before ict s. A traditional approach is likely to limit admissibility to bilateral disputes, whereas a community interest-oriented approach will open the door to a wider range of potential proceedings. For this reason, and due to space-related constraints, this section will focus on the admissibility and jurisdiction stage of (contentious) international adjudication. This stage is a fundamentally important one as it relates to the essential question of which kinds of cases may be heard. Within this context, we will look in detail at three particular aspects where the conflict between bilateralist and community-oriented approaches is especially stark, namely the principle of consent, the requirement of a dispute, and the standing to bring a case.
4.1 The Principle of Consent
The principle of consent to jurisdiction is closely related to the bilateralist approach to ict s. It entails that no international body may have jurisdiction over a case in which one of the states parties has not in some way consented to that jurisdiction.83 This is a corollary of sovereign equality and horizontality as discussed above.84 It is one of the foremost limitations to the adjudication of community interest issues in international law,85 and can serve to greatly limit the cases that may come before an ict, thereby having a serious impact on its ability to uphold the rule of law.86 The principle of consent takes shape differently in the different ict s.
In the icj Statute, the principle of consent is reflected strongly in the bases of jurisdiction set out in Article 36.87 All three bases (special agreement,88 compromissory clause,89 or Article 36(2) declaration of compulsory jurisdiction90) represent a form of state consent. Without such a basis in state consent, the icj cannot hear a case.91
There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent.96
Despite this, it is worth noting that in some cases, despite refusing jurisdiction, the Court has seen fit to pronounce upon the importance of compliance with international law and certain community interest-related issues. In Armed Activities, for example, the Court went to lengths to underline “the necessity for the Parties to… use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently.”97 Although this was criticised by Judge Buergenthal in his Declaration attached to the judgment as going beyond the “Court’s function”,98 it seems that the Court was at least aware and affected by the wider interests at play in the case. The Court similarly underlined the importance of legal compliance in the Fisheries case, reminding the parties that “[w]hether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States.”99
It is also worth noting here that in some recent case law, the icj has appeared more favourable towards “creative”100 jurisdictional arguments that seemed to seek a way around the restrictions of state consent. In its Order on provisional measures in the Allegations of Genocide case between Ukraine and Russia, the Court accepted prima facie jurisdiction on the basis of the compromissory clause in the Genocide Convention,101 despite the questionable102 link between that Convention and the case at hand.103 Russia has not made a declaration recognising the compulsory jurisdiction of the icj.104 It therefore seems evident that this line of argumentation was taken by Ukraine in order to circumnavigate the apparent absence of Russia’s consent.105 Without delving into further detail on the arguments made by Ukraine, and noting the caveat that this was an order on provisional measures rather than a decision on jurisdiction for the merits stage, this decision could be taken as evidence that, where possible in accordance with the letter of the law, the Court may yet err on the side of compliance rather than consent.
In contrast with the icj, itlos and the wto dsm each have some form of compulsory jurisdiction. It should be noted that this notion of compulsory jurisdiction or compulsory dispute settlement does not conflict directly with the principle of state consent. This is because states formally agree to the jurisdiction regime in question when they ratify the constitutive agreement. They may also be able to withdraw, depending on the terms of the treaty.106 However, compulsory jurisdiction does limit the choice or exercise of sovereignty of states in a given situation and in that way curbs the priority of individual state interests in relation to the community interest in compliance and enforcement.
Under the itlos regime, States parties choose between a number of different dispute settlement mechanisms, including itlos, the icj, and different types of arbitral tribunal.107 If the states parties to a dispute have all submitted declarations accepting the same procedure, the dispute will be submitted to that procedure unless the parties agree otherwise.108 Otherwise, states are deemed to have accepted arbitration in accordance with the procedures and requirements set out in the Annex vii.109 No reservations can be made to this article; it is thus a choice between accepting this regime of compulsory jurisdiction or not being a party to the Convention.110 This essentially seeks to find a balance, allowing for some freedom of choice of means and autonomy while maintaining the principle of compulsory settlement.111 We thus see a compromise between the systemic or community interest in stability and the rule of law and the freedom of states to exercise their sovereign will in the choice of forum.112 In addition, as regards the Seabed Disputes Chamber (“sdc”), Article 187 grants the sdc compulsory jurisdiction over a wide range of disputes relating to the Deep Seabed Area (“the Area”).113 The Area is widely seen as a community interest,114 and so it can be seen that this reflects a selective community-oriented approach as opposed to a bilateralist one due to the nature of the issues at hand.
itlos has also been seen to apply the ‘indispensable third-party rule’ as discussed above,115 but it appears to do so rather more flexibly than the icj. This was apparent in the maritime delimitation case between Mauritius and the Maldives in which the Tribunal was required to consider whether the absence of the UK (with whom Mauritius had an ongoing territorial dispute over the Chagos Islands, which lies within the contested maritime region) would be a bar to the its jurisdiction.116 It held (rather surprisingly) that the dispute between the UK and Mauritius had been extinguished as a result of a previous Advisory Opinion by the icj,117 and that therefore the UK was not an indispensable third party in that case.118
Overall, it can be said that the itlos regime reflects a significant shift as regards the balance that has been struck between state consent and community interest. The issue of consent has been circumnavigated in a subtler way through the use of compulsory dispute settlement via a selection of different fora. We also see a distinction between general disputes and those that relate to the Area and are therefore more closely linked to collective and community interests.
Finally, the modern wto regime under the Dispute Settlement Understanding (“dsu”) also provides for compulsory jurisdiction over disputes relating to the covered agreements.119 In Subedi’s words, member states of the wto “have no choice but to submit their trade disputes to the dsb”; it is “the first major international dispute settlement mechanism with compulsory jurisdiction”.120 This seems to be largely motivated by the perceived need for ‘security and predictability’ of the trading system under the wto, as highlighted in the dsu itself.121 Subedi compares the wto to itlos, observing that “both in terms of the number of cases referred to [itlos] … and the significant exceptions to compulsory jurisdiction means the wto-dsm remains the only truly compulsory system currently extant in the international field.”122
Overall, it is clear that the principle of consent to jurisdiction retains its unassailable status in the international legal order. Consent trumps compliance – at least for now. That said, it is clear from the above that ict s recognise the importance of compliance. While consent is still key, there are structures in place which limit the exercise of that consent. Treaty-based compulsory jurisdictional mechanisms favour a compliance-focused system while still complying with the principle of consent. Similarly, the power of courts to determine their own jurisdiction (kompetenz-kompetenz) can be seen to facilitate interpretations of the law which are on the side of compliance. The picture here, therefore, is mixed yet hopeful.
4.2 Dispute Requirement
The icj has jurisdiction over “disputes” submitted to it.123 The Court has defined the term ‘dispute’ variably over the years as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”124 and “a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain … obligations”.125 This is “a matter for objective determination”;126 “[a] mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its nonexistence”.127
Although there are similar terms in the respective constitutive documents of itlos and the dsu,128 neither has thus far been interpreted in a restrictive manner. As such, the remainder of this section focuses on the icj’s practice.
The Court has been at pains to emphasise that the purpose of this requirement is to protect and preserve the nature of the icj as a “judicial organ”; to ensure that “its basic judicial functions may be safeguarded”.129 In other words, “the existence of the dispute is the primary condition for the Court to exercise its judicial function”.130 This could be interpreted as highlighting the idea that the Court sits between states in arbitration of their dispute, rather than above then in judgment of the objective legality of their actions, but it could also merely reflect the difference between contentious and advisory proceedings.
The Nuclear Tests cases do, however, provide an example of a more bilateralist approach to the dispute requirement. In those cases, the Court found that the dispute in question had ceased to exist because Australia and New Zealand’s objective in bringing the case (namely the cessation of nuclear testing by France) had been met by France’s declaration that they would so cease.131 The Court explicitly added the requirement that “[t]he dispute brought before it must therefore continue to exist at the time when the Court makes its decision”.132
This is particularly interesting as it reveals an assumption or understanding that the purpose of the case was to settle the outstanding alleged violation of New Zealand and Australia’s subjective rights, rather than to settle the question of whether France was in compliance with international law. Indeed, the majority’s view that there was no longer a dispute was strongly opposed by certain judges who argued that the “object” of Australia and New Zealand’s claims was not simply the cessation of nuclear testing, but that there was a dispute over the legality of the testing in the first place.133 Australia and New Zealand certainly seemed to believe that such a dispute continued to exist, regardless of France’s declaration; as the Court itself noted, if they believed the dispute to be concluded then they themselves could have discontinued proceedings, which they did not.134 The focus of the Court here would seem, therefore, to be on the individual interests of the states rather than objective compliance.
A more recent (and controversial) development has further added to the dispute requirement. In the Marshall Islands cases, the Court held the applications to be inadmissible due to the absence of a dispute between the parties. This was because “it cannot be said that the [allegedly responsible state] was aware, or could not have been unaware, that the Marshall Islands was making an allegation that the [state] was in breach of its obligations”.135
This approach creates a potential hindrance as regards the admissibility of cases that go beyond the individual interests of states, i.e. beyond cases that follow a bilateral pattern. Where the state seeking to bring a case is an injured state, it is relatively easy to establish the relevant standard of ‘awareness’ in accordance with the Marshall Islands judgment.136 When the claimant state is not ‘injured’ in the sense of Article 42 arsiwa, however, it becomes more difficult to prove that this criterion has been met.137 Further, rather than being about the compliance of one party’s conduct with the law, the focus of this ‘awareness’ criterion is on the relationship between the two parties to the case. In this sense, it can be seen to reflect the bilateralist paradigm of dispute settlement.138
That being said, it is nonetheless clear that in other cases the Court has been happy to accept the existence of a dispute between a non-injured state and a state which is alleged to be in breach of its obligations. Belgium v. Senegal and Whaling in the Antarctic are both pertinent examples.139 In Belgium v. Senegal, Belgium brought an action against Senegal for the alleged failure to prosecute or extradite an individual alleged to have committed torture and crimes against humanity, in violation of the Convention Against Torture.140 In Whaling, Australia brought a case against Japan for alleged violations of the International Convention for the Regulation of Whaling.141 Both these cases concern common interests, and in neither of those cases was there an injured state.142 Although these cases both came before the Marshall Islands judgment, the fact that the Court had only relatively recently (2 and 4 years previously, respectively) accepted jurisdiction over such cases implies that even the stricter dispute requirement may not be an unsurmountable barrier to cases that go beyond traditional, bilateralist ideas of dispute settlement, and that the strict approach may be limited to that case.
Indeed, the icj’s decision in Marshall Islands has been the subject of much criticism.143 Amongst these critics are those who argue that this strict treatment had less to do with law and more to do with avoiding dealing with the controversial substantive aspects of the case.144 The icj’s supposed “trepidation to take jurisdiction over the ‘big cases’ lying at the intersection of law and politics”145 might have resulted in a “missed opportunity to advance a more proactive dispute settlement approach to global security issues and a more coherent legal framework to adjudicate alleged violations of communitarian obligations”.146 It may also reflect a concern on the part of the icj, similar to the argument posited by Posner and Yoo, that such decisions could have a negative impact on state compliance and therefore the longer term effectiveness of the Court.147 This naturally raises concerns about the neutrality and independence of the Court, especially since many community interest- and compliance-related disputes may raise similarly politicised issues. However, it also suggests that this stricter approach may have less of an influence on future jurisprudence.
4.3 Locus Standi
As regards the icj, the history of standing requirements has been somewhat complex. The traditional, bilateralist approach to standing centres on the bilateral relationship of responsibility between the responsible and injured state. The injured state, understood as the state whose subjective right to performance has been violated, is the only one that may invoke the responsibility of the responsible state.148 Thus, the concept of legal injury (the violation of the subjective or “correlative”149 right) is central. It acts as the “bridge”150 between the origin of responsibility and the rules regulating its implementation. As such, the Court has historically refused to recognise the existence of an actio popularis in international law.151
This bilateralist approach made sense in a system of law based on bilateral obligations; it is a close match with a traditional approach to dispute settlement based on individual state interests. However, it has become increasingly difficult to reconcile with the emerging “multilateral dimension” of international legal obligations.152 On the one hand, certain obligations are not owed between states in a bilateral manner. In other words, their breach would not necessarily result in an injured state. Take, for example, obligations related to the protection of internationally significant biodiversity within a state’s borders.153 A failure to comply by a state bound by such obligations is a violation of international law, but it does not produce an injured state in the traditional sense, and thus renders the traditional approach to standing powerless to enforce international legal rules.154
Furthermore, there is increasing recognition that some obligations, regardless of their structure, are of such paramount importance that they were of substantial concern to all members of the international community. They are understood as being owed to the international community as a whole. First named “obligations erga omnes” by the icj in Barcelona Traction,155 these obligations are said to be so important that “all States can be held to have a legal interest in their protection”,156 and thus a right of standing to bring a claim in relation to the alleged breach of an obligation erga omnes.
This trend157 was recognised and codified in the International Law Commission’s 2001 Articles on State Responsibility (“arsiwa”). While Article 42 provides for the locus standi of injured states,158 Article 48 provides for the standing of “any State other than an injured State” in certain circumstances, namely if
- (a)the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or
- (b)the obligation breached is owed to the international community as a whole.159
While the application of Article 48(1)(a) is generally clear,160 Article 48(1)(b) is more controversial. According to the commentary, Article 48(1)(b) is intended to give effect to the concept of obligations erga omnes in the sense enunciated in Barcelona Traction.161 However, the main problem comes down to the identification of such obligations. While the icj has arguably accepted in theory some form of actio popularis or standing in the community interest, the extent to which it has actually been exercised in practice is negligible. Wolfrum thus concludes that, so far, “[a]lthough the icj had established the erga omnes principle, … it has failed to establish the mechanisms to enforce them by means of international dispute settlement.”162 As with the approach to the dispute requirement discussed above, this could potentially be explained by caution on the part of the icj as regards the acceptance of such a move by states and its future effectiveness.163
As for the itlos regime, there is little evidence either way as regards the standing of non-injured states.164 However, the sdc has recognised, in non-contentious proceedings, the erga omnes character of the obligations respecting the preservation of the environment of the high seas and the Area and made direct reference to Article 48 of arsiwa.165 It would seem likely therefore that itlos and the sdc would follow the structure of the invocation of responsibility set out in arsiwa and followed by the icj, although it is unclear what if any particular, perhaps additional, rules of standing they might apply.166
The wto is a bit of an outlier as regards locus standi. In the European Communities – Bananas case, the Appellate Body held that there was no need for a state to demonstrate an individual legal interest in order to bring Panel proceedings. The Appellate Body held that there was no such requirement either explicit or implied in the terms of the wto Agreement.167 It said further in relation to the icj and pcij case law referred to by the ec, that “[w]e do not read any of these judgments as establishing a general rule that in all international litigation, a complaining party must have a ‘legal interest’ in order to bring a case.”168 It emphasised the “increased interdependence of the global economy”,169 thus underlining the increasingly shared or common nature of the interests at issue.
It seems from the above that, while in the icj and itlos systems there remains some uncertainty and hesitancy, the legal structures for locus standi in non-bilateral dynamics exist. This uncertainty may indeed be due to the lack of clarity surrounding the role and function of ict s, and where they stand in relation to a normative legal order than no longer follows a bilateralist pattern.170 The wto appears to have embraced a more systemic, compliance-based role; a role which is reflected in its jurisprudence on rights of standing. This distinguishes it from the itlos and icj, but also demonstrates the workability of such an approach. It also demonstrates a willingness on the part of states to accept such forms of adjudication in international law.171
5 Conclusion: Lessons and Implications
There are a number of interesting lessons to be gleaned from this focus on ict procedure and practice. In many ways, especially in the context of the icj and itlos, key elements of more traditional approaches remain. Despite the talk of an international rule of law, equal sovereignty and state consent retain their foundational place within the international legal order. The icj’s interpretation of the dispute requirement has, at least in certain cases, demonstrated a tendency towards a focus on dispute-settlement rather than on compliance and legality. Traditional structures of locus standi still dominate. This institutional caution could reflect doubts regarding states’ acceptance of a more community-interest-oriented approach and fears that a more open approach could risk the longer-term effectiveness of the Court’s decisions.172
However, within these parameters, there remains plenty of space for the exercise of community-oriented approaches to the international judicial function. Significant developments are taking place in this regard. Although the bilateralist perspective still holds considerable sway, a more systemic, community interest-oriented international judicial function is clearly emerging in the field of international adjudication.
First, we are seeing a shift towards a more community-oriented approach within the more specialised bodies. The wto dsm in particular, due arguably to the understanding and recognition of its members of the common nature of the interests involved, departs in several ways from traditional bilateralist structures. Treaty-based compulsory jurisdiction, while still not directly contrary to the principle of consent, represents a step away from tradition in that regard. Similarly, the Appellate Body’s rejection of any need to demonstrate an ‘individual legal interest’ in order to bring panel proceedings demonstrates an approach based much more strongly on a common interest in compliance rather than bilateral dispute settlement.173 These developments within more specialised ict s would seem to suggest that the caution of the icj may be unwarranted.174
Second, it is still important to recognise that even with the more traditional bodies like the icj, we are seeing inroads of community interest and community-oriented practice, particularly in the form of obligations erga omnes and erga omnes partes. Existing jurisprudence may demonstrate a certain hesitancy, but certainly does not rule out a more systemic function for ict s. There is potential for further development at the very least.
The implications for the international legal system are complex. While international courts act effectively as arbiters between individual state interests, the system is one of private justice. However, where international courts are understood as organs of the community, enforcing legal obligations and upholding the rule of law in the interest of all, their role is far more akin to that of courts in a public legal order.
Taking this into account alongside the lessons discussed above, we can clearly see the enduring effect of international law’s bilateralist, private-law-type foundations. Nonetheless, the seeds of more community-oriented approaches have been sown, and we are at least beginning to be able to sketch the road towards a more public or community-oriented order of ict s. The international rule of law is central to this development. It ties the institutional role of ict s to an overarching community interest in legality and compliance. It provides a legal foundation for ict s to function as organs of the community rather than tools of states.
ict s are yet to fully embrace this role in their practice. Nonetheless, its theoretical contours are beginning to take shape. There is space and potential for a new perspective on the international judicial function to grow.
See D. Bodansky, ‘What’s in a Concept? Global Public Goods, International Law and Legitimacy’ 23 European Journal of International Law (2012).
P.-M. Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’ 16 European Journal of International Law (2005).
J. Klabbers, ‘What Role for International Organizations in the Promotion of Community Interests? Reflections on the Ideology of Functionalism’ in E. Benvenisti and G. Nolte (eds), Community Interests Across International Law (Oxford University Press, UK, 2018) p. 93.
See e.g. E. De Wet, ‘The International Constitutional Order’ 55 International & Comparative Law Quarterly (2006) p. 54.
Most notably obligations erga omnes and peremptory norms. See e.g. ibid; J. Crawford, ‘Responsibility for Breaches of Communitarian Norms: an Appraisal of Article 48 of the ilc Articles on Responsibility of States for Internationally Wrongful Acts’ in U. Fastenrath and others (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, Oxford, 2011) p. 224.
See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 5 February 1970, icj, <https://www.icj-cij.org/sites/default/files/case-related/50/050-19700205-JUD-01-00-EN.pdf>, visited on 28 March 2023; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, icj, Judgment <https://www.icj-cij.org/sites/default/files/case-related/144/144-20120720-JUD-01-00-EN.pdf>, visited on 28 March 2023; Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965, 25 February 2019, icj, Advisory Opinion <https://www.icj-cij.org/sites/default/files/case-related/169/169-20190225-ADV-01-00-EN.pdf>, visited on 28 March 2023.
See e.g. Charter of the United Nations (1945) 1 unts xvi (‘UN Charter’), Article 92; United Nations Convention on the Law of the Sea (1982) 1833 unts 31363 (‘unclos’), Annex vi; Understanding on the Rules and Procedures Governing the Settlement of Disputes (1994) 1869 unts 401 (‘dsu’).
M. Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ 5 The Law and Practice of International Courts and Tribunals (2006) p. 370.
See generally A. von Bogdandy and I. Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford University Press, UK, 2014) especially pp. 1–5.
See Benzing supra note 8, p. 371; G. Hernandez, The International Court of Justice and the Judicial Function (Oxford University Press, UK, 2014) pp. 204–205.
See Hernandez supra note 10 pp. 204–205.
N. Krisch, ‘Global Governance as Public Authority: An Introduction’ 10 International Journal of Constitutional Law (2012) p. 980.
von Bogdandy and Venzke supra note 9, p. 1.
P. Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ 6 Max Planck Yearbook of United Nations Law (2002) p. 175.
D. Shelton, ‘Form, Function, and the Powers of International Courts’ 9 Chicago Journal of International Law (2009) pp. 557–558.
Ibid 540–541.
On the conferral of powers, see D. Akande, ‘International Organizations’ in M. Evans (ed), International Law (3rd edn, Oxford University Press, UK, 2010) pp. 256–260.
See ibid pp. 260–261; Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, icj, Advisory Opinion, pp. 184–185, <https://www.icj-cij.org/sites/default/files/case-related/4/004-19490411-ADV-01-00-EN.pdf>, visited on 28 March 2023; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), 20 July 1962, icj, Advisory Opinion, p. 167, <https://www.icj-cij.org/sites/default/files/case-related/49/049-19620720-ADV-01-00-EN.pdf>, visited on 28 March 2023.
Shelton supra note 15, p. 543.
Ibid, 557–558; von Bogdandy and Venzke supra note 9, pp. 9–10.
See generally von Bogdandy and Venzke supra note 9. See in relation to the role of courts in a public law system and the divide between public and private law: L.A. Mulholland, ‘The Difference Between Private and Public Law’ 1 Jahrbuch für Recht und Ethik (1993) pp. 130 et seq.
See generally L.R. Helfer and A.-M. Slaughter, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’ 93 California Law Review (2005).
E.A. Posner and J.C. Yoo, ‘Judicial Independence in International Tribunals’ 93 California Law Review (2005).
Ibid, pp. 20–21.
Ibid, p. 6.
Ibid, pp. 6–7.
In the sense that they are focused on the effectiveness of international courts and tribunals, understood broadly through rates of compliance by states with id s ict decision’s, rather than the legal powers of ict as such. See ibid pp. 27 et seq and pp. 66–67.
Ibid, pp. 66–7.
Benzing supra note 8, pp. 374–375; J.E. Donoghue, ‘The Role of the World Court Today’ 47 Georgia Law Review (2012) p. 188.
Posner and Yoo supra note 23, p. 25.
Ibid pp. 6–7.
Shelton supra note 15, p. 557; Krisch supra note 12, p. 980; von Bogdandy and Venzke supra note 9, p. 3.
Shelton supra note 15, pp. 557–8.
Posner and Yoo supra note 23, pp. 6–7.
See Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 25 September 1997, icj, Separate Opinion of Vice President Weeramantry, pp. 115, <https://www.icj-cij.org/sites/default/files/case-related/92/092-19970925-JUD-01-03-EN.pdf>, visited on 29 March 2023.
From Posner and Yoo’s perspective, decisions made by international courts or tribunals outside the purely bilateral context which did not favourite individual state interests would result in lower levels of compliance by states, and therefore lower levels of effectiveness of the court or tribunal in question: see Posner and Yoo supra note 23, especially p. 28 and pp. 66–7.
Shelton supra note 15, pp. 543–544.
Ibid pp. 540–541.
Ibid p. 558.
Palchetti supra note 14, p. 175.
Helfer and Slaughter supra note 22, p. 907.
Ibid, p. 907; L.R. Helfer and A.-M. Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ 107 Yale Law Journal (1997) p. 370.
Helfer and Slaughter supra note 42, pp. 367–9.
See on the definition and application of the concept of ‘community interest’: S. Thin, ‘In Search of Community: Towards a Definition of Community Interest’ in G. Zyberi (ed), Protecting Community Interests Through International Law (Intersentia, UK, 2021) p. 11.
Helfer and Slaughter supra note 42, p. 369.
Namely those courts and tribunals described by Helfer and Slaughter as being ‘independent’: Helfer and Slaughter supra note 22 at e.g. p. 932.
Ibid, p. 932.
Ibid, p. 932.
Ibid, pp. 931 et seq.
See e.g. UN Charter (1945) supra note 7, Article 2(3); unclos (1982) supra note 7, Articles 279 and 280; dsu (1994) supra note 7, Article 3.2; Shelton supra note 15, pp. 558–561; S.P. Subedi, ‘The wto Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Law’ in D. French, M. Saul and N.D. White (eds), International Law and Dispute Settlement: New Problems and Techniques (Hart, London, 2010) p. 175. See also L.B. Sohn, ‘Peaceful Settlement of Disputes in Ocean Conflicts: Does unclos iii Point the Way?’ 46 Law and Contemporary Problems (1983) who writes (at p. 195) that compulsory jurisdiction (as discussed further below) was argued for on the basis of “stability, certainty, and predictability.”
UN Charter (1945) supra note 7, Article 2(3); Donoghue supra note 29, p. 182.
He also called the Court “the general guardian of legality within the system”: Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), 14 April 1992, icj, Provisional Measures Order, Separate Opinion of Judge Lachs, p.26, <https://www.icj-cij.org/sites/default/files/case-related/89/089-19920414-ORD-01-00-EN.pdf>, <https://www.icj-cij.org/sites/default/files/case-related/89/089-19920414-ORD-01-04-EN.pdf>, visited on 28 March 2023.
Y. Shany, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’ 106 American Journal of International Law (2012) p. 245. See also Y. Shany, Assessing the Effectiveness of International Courts (Oxford University Press, UK, 2014) p. 39.
Sohn supra note 50, p. 195.
See Subedi supra note 50, p. 175.
Shelton supra note 15, pp. 543–544.
Ibid p. 543.
Donoghue supra note 29, p. 183.
P.-M. Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ 13 European Journal of International Law (2002) p. 1057; G. Nolte, ‘From Dionsio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ 13 European Journal of International Law (2002) p. 1089; D. Dubois, ‘The Authority of Peremptory Norms in International Law: State Consent or Natural Law’ 78 Nordic Journal of International Law (2009) pp. 142–143 (referring to pacta sunt servanda as a peremptory norm).
See V. Lowe, ‘Private Disputes and the Public Interest in International Law’ in D. French, M. Saul and N.D. White (eds), International Law and Dispute Settlement: New Problems and Techniques (Hart, London, 2010) p. 4.
Ibid, p. 4. For more on the coalescence of the international public interest and the community interest, see S. Thin, ‘Community Interest and the International Public Legal Order’ 68 Netherlands International Law Review (2021), especially pp. 40–41 and pp. 44–47.
Lowe supra note 60, p. 4.
See G. De Baere, A.-L. Chane and J. Wouters, ‘International Courts as Keepers of the Rule of Law: Achievements, Challenges, and Opportunities’ 48 New York University Journal of International Law and Politics (2016) pp. 736–752.
See Shany supra note 53, p. 245–6.
See Donoghue supra note 29, pp. 192–3.
Shelton supra note 15, p. 564; De Baere, Chane and Wouters supra note 42, p. 775.
Shelton supra note 15, p. 564.
See ibid p. 542 and pp. 553–554; De Baere, Chane and Wouters supra note 30, pp. 780 et seq; von Bogdandy and Venzke supra note 9, pp. 12–14.
See generally von Bogdandy and Venzke supra note 9; Mulholland supra note 21, pp. 130 et seq; M. Loughlin, ‘The Nature of Public Law’ in C. Mac Amhlaigh, C. Michelon and N. Walker (eds), After Public Law (Oxford University Press, UK, 2013) p. 13.
Loughlin supra note 69, p. 13.
Mulholland supra note 21, pp. 130 et seq.
Ibid p. 116.
Ibid p. 117.
Ibid.
On the need for a different style or form of adjudicative proceedings, see Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997], Separate Opinion of Vice President Weeramantry supra note 35, p. 115.
C. Kim, ‘Adversarial and Inquisitorial Procedures with Information Acquisition’ 30 The Journal of Law, Economics, and Organization (2013) pp. 768–9.
Ibid, p. 768.
Ibid, p. 768.
Ibid, p. 768.
Although it is outside the scope of the current article, a link may be made here with the different forms of intervention that are possible in international education. For example, third party intervention and amicus curiae briefs form a much smaller part of the jurisprudence of traditional courts like the icj in comparison to more specialised regimes like the wto. Compare A. Wiik, Amicus Curiae before International Courts and Tribunals (Hart, London, 2018) p. 92 with United States – Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998, wto dsm, Report of the Appellate Body wt/ds58/ab/r, para. 108, <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/58ABR.pdf&Open=True>, visited on 28 March 2023.
Posner and Yoo supra note 23, p. 6.
Shany notes that, with the increase in such kinds of cases, ‘the relative significance of the dispute-settling function of international courts appears to have declined’: Shany supra note 53, p. 41.
Benzing supra note 8, pp. 375–375.
See von Bogdandy and Venzke supra note 9, p. 14.
Benzing supra note 8, pp. 374–375.
See De Baere, Chane and Wouters supra note 30, pp. 739–740.
Statute of the International Court of Justice (1946) ukts 67 (‘icj Statute’), Article 36.
Ibid, Article 36(1).
Ibid, Article 36(1); To see a full list of agreements that contain such a clause, see icj, ‘Treaties which confer jurisdiction on the Court’ 2020) <https://www.icj-cij.org/en/treaties> visited on 23 March 2023.
Ibid, Article 36(2). For a full list of such declarations, including reservations, see icj, ‘Declarations recognizing the jurisdiction of the Court as compulsory’ 2020) <https://www.icj-cij.org/en/declarations/> accessed 23.07.2020.
As one among countless examples, see the Marshall Islands case, in which 6 of the 9 states that were the subject of the Marshall Islands’ claims were never the subject of the case because they had not consented to the Court’s jurisdiction: see Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), 5 October 2016, icj, Judgment (Preliminary Objections), para. 22, <https://www.icj-cij.org/sites/default/files/case-related/160/160-20161005-JUD-01-00-EN.pdf>, visited on 28 March 2023.
Benzing supra note 8, p. 375.
Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), 15 June 1954, icj, Judgment (Preliminary Question), p. 32, <https://www.icj-cij.org/sites/default/files/case-related/19/019-19540615-JUD-01-00-EN.pdf>, visited on 28 March 2023. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 14 May 1984, icj, Order (Declaration of Intervention of the Republic of El Salvador), p. 28, <https://www.icj-cij.org/sites/default/files/case-related/70/070-19840514-ORD-01-00-EN.pdf>, visited on 28 March 2023; Certain Phosphate Lands in Nauru (Nauru v. Australia), 26 June 1992, icj, Judgment (Preliminary Objections), paras. 50–55, <https://www.icj-cij.org/sites/default/files/case-related/80/080-19920626-JUD-01-00-EN.pdf>, visited on 28 March 2023; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), 13 September 1990, icj, Judgment (Application by Nicaragua for Permission to Intervene), paras. 55–56, <https://www.icj-cij.org/sites/default/files/case-related/75/075-19900913-JUD-01-00-EN.pdf>, visited on 28 March 2023.
Monetary Gold [1954] supra note 93, p. 32.
See most notably the icj’s decision in East Timor (Portugal v. Australia), 30 June 1995, icj, Judgment, para. 29, <https://www.icj-cij.org/sites/default/files/case-related/84/084-19950630-JUD-01-00-EN.pdf>, visited on 28 March 2023, and Portugal’s arguments that the third party rule was not applicable in cases involving erga omnes obligations (ibid, Réplique du Gouvernement de la République Portugaise (1 December 1992), at p. 28, <https://www.icj-cij.org/sites/default/files/case-related/84/6838.pdf>, p. 208). See also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), 3 February 2006, icj, Judgment (Jurisdiction and Admissibility) <https://www.icj-cij.org/sites/default/files/case-related/126/126-20060203-JUD-01-00-EN.pdf>, visited on 28 March 2023, para. 64 (jus cogens) and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 1 April 2011, icj, Judgment (Preliminary Objections) <https://www.icj-cij.org/sites/default/files/case-related/140/140-20110401-JUD-01-00-EN.pdf>, visited on 28 March 2023, para. 185 (human rights). For commentary on this, see Hernandez supra note 10, pp. 229–230: ‘[The Court] has consistently dismissed arguments that the bases of its jurisdiction might be modified as a result of a jus cogens or peremptory norm in similar fashion, holding consistently that whatever the nature of the substantive primary rules in issue, the applicable secondary rules on jurisdiction remain unaffected,’ at p. 229.
Fisheries Jurisdiction (Spain v. Canada), 4 December 1998, icj, Judgment (Jurisdiction), para. 55, <https://www.icj-cij.org/sites/default/files/case-related/96/096-19981204-JUD-01-00-EN.pdf>, visited on 28 March 2023; this was repeated almost verbatim in Legality of Use of Force (Serbia and Montenegro v. Belgium), 15 December 2004, icj, Judgment (Preliminary Objections), para. 128, <https://www.icj-cij.org/sites/default/files/case-related/105/105-20041215-JUD-01-00-EN.pdf>, visited on 28 March 2023.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), 10 July 2002, icj, Order (Provisional Measures), para. 93 <https://www.icj-cij.org/sites/default/files/case-related/126/126-20020710-ORD-01-00-EN.pdf>, visited on 28 March 2023; Hernandez supra note 10, pp. 231–232.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) [2002] supra note 97, Declaration of Judge Buergenthal: ‘the Court’s function is to pronounce itself on matters within its jurisdiction and not to voice personal sentiments or to make comments, general or specific, which, despite their admittedly “feel-good” qualities, have no legitimate place in this Order’, p. 258 para. 4, <https://www.icj-cij.org/sites/default/files/case-related/126/126-20020710-ORD-01-03-EN.pdf>, visited on 29 March 2023.
Fisheries Jurisdiction (Spain v. Canada) [1998] supra note 96, para. 56; repeated in Legality of Use of Force (Serbia and Montenegro v. Belgium) [2004] supra note 96, para. 128.
M. Milanovic, ‘icj Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine; Russia Expelled from the Council of Europe’ (ejil: Talk! 16 March 2022) <https://www.ejiltalk.org/icj-indicates-provisional-measures-against-russia-in-a-near-total-win-for-ukraine-russia-expelled-from-the-council-of-europe/> visited on 13 December 2022.
Convention on the Prevention and Punishment of the Crime of Genocide (1948) Article ix.
For criticism see e.g. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), 16 March 2022, icj, Order (Provisional Measures) <https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ORD-01-00-EN.pdf>, visited on 28 March 2023, Declaration of Judge Xue <https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ORD-01-03-EN.pdf>, visited on 29 March 2023.
Allegations of Genocide (Ukraine v. Russia) [2022] supra note 102, para. 48.
icj Statute supra note 87, Article 36. See the list of such declarations at <https://www.icj-cij.org/en/declarations> visited on 13 December 2022.
Milanovic supra note 100.
unclos (1982) supra note 7, Article 287(6). For the wto, see Marrakesh Agreement Establishing the World Trade Organisation (1994) 1867 unts 31874, Article xv.
unclos (1982) supra note 7, Article 287(1).
Ibid, Article 287(4).
See ibid, Article 287(3) and (5).
Ibid, Article 309.
J. Merrills, International Dispute Settlement (Cambridge University Press, UK, 2011) p. 170; unclos (1982) supra note 7, Article 287.
Ibid 111, pp. 169–170; Sohn supra note 50, pp. 195–196.
unclos (1982) supra note 7, Article 187.
See ibid, Article 136; G. Gaja, ‘The Protection of General Interests in the International Community’ 364 Receuil des Cours (2013) p. 172. R. Wolfrum, ‘Identifying Community Interests in International Law: Common Spaces and Beyond’ in E. Benvenisti and G. Nolte (eds), Community Interests Across International Law (Oxford University Press, UK, 2018) p. 24.
The M/V “Norstar” Case (Panama v. Italy), 4 November 2016, itlos, Judgment (Preliminary Objections), para. 172, <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/published/C25_PO_Judgment_20161104.pdf>, visited on 28 March 2023; Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), 28 January 2021, itlos, Judgment (Preliminary Objections), para. 97, <https://www.itlos.org/fileadmin/itlos/documents/cases/28/preliminary_objections/C28_Judgment_prelimobj_28.01.2021_orig.pdf>, visited on 28 March 2023.
Maritime Delimitation (Mauritius v. Maldives) [2021] supra note 115, paras. 97 et seq.
See Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965 [2019] supra note 6.
Maritime Delimitation (Mauritius v. Maldives) [2021] supra note 115, para. 248. For criticism, see S. Thin, ‘The Curious Case of the “Legal Effect” of icj Advisory Opinions in the Mauritius/Maldives Maritime Boundary Dispute’ (ejil:Talk! 5 February 2021), <https://www.ejiltalk.org/the-curious-case-of-the-legal-effect-of-icj-advisory-opinions-in-the-mauritius-maldives-maritime-boundary-dispute/> visited on 30 March 2023.
dsu (1994) supra note 7, Articles 6 and 7.
Subedi supra note 50, p. 179.
dsu (1994) supra note 7, Article 3(2): ‘[t]he dispute settlement system of the wto is a central element in providing security and predictability to the multilateral trading system.’
Subedi supra note 50, p. 179.
icj Statute supra note 87, Article 36.
Mavrommatis Palestine Concessions, 30 August 1924, pcij, Judgment <https://www.icj-cij.org/sites/default/files/permanent-court-of-international-justice/serie_A/A_02/06_Mavrommatis_en_Palestine_Arret.pdf>, visited on 28 March 2023, p. 11. See also East Timor (Portugal v. Australia), 1995, visited on 28 March 2023 supra note 95.
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 30 March 1950, icj, Advisory Opinion, p. 74, <https://www.icj-cij.org/sites/default/files/case-related/8/008-19500330-ADV-01-00-EN.pdf>, visited on 28 March 2023. Although this was in the context of an Advisory Opinion and so did not concern the dispute requirement for the icj’s contentious jurisdiction; it related rather to the definition of ‘dispute’ under dispute settlement clauses in three separate peace treaties (see pp. 67 and 74).
Ibid, p. 74.
South West Africa (Ethiopia v. South Africa and Liberia v. South Africa), 21 December 1962, icj, Jugment (Preliminary Objections), p. 328, <https://www.icj-cij.org/sites/default/files/case-related/47/047-19621221-JUD-01-00-EN.pdf>, visited on 28 March 2023.
See unclos (1982) supra note 7, Annex vi: Statute of the International Tribunal for the Law of the Sea (‘itlos Statute’), Article 21; dsu (1994) supra note 7, Article 1(1).
Nuclear Tests (Australia v. France), 20 December 1974, icj, Judgment (Jurisdiction and Admissibility), para. 23, <https://www.icj-cij.org/sites/default/files/case-related/58/058-19741220-JUD-01-00-EN.pdf>, visited on 28 March 2023 and Nuclear Tests (New Zealand v. France), 20 December 1974, icj, Judgment (Jurisdiction and Admissibility), para. 23, <https://www.icj-cij.org/sites/default/files/case-related/59/059-19741220-JUD-01-00-EN.pdf>, visited on 28 March 2023.
Nuclear Tests (Australia v. France) [1974] (ibid.), para. 55.
Ibid, paras. 51–55.
Ibid, para. 55.
See ibid, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, para. 19; Dissenting Opinion of Judge Sir Garfield Barwick, pp. 392–394.
Nuclear Tests (Australia v. France) [1974] supra note 129, para. 54; Nuclear Tests (New Zealand v. France) [1974] supra note 129, para. 57.
Marshall Islands case [2016] supra note 91, paras. 52 and 58.
Ibid, paras. 52 and 58.
ilc, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), as reproduced in General Assembly Resolution 56/83 (2002) UN Doc. a/res/56/83 (‘arsiwa’) Article 42.
See Benzing supra note 8, pp. 375–376.
We may soon be able to add the upcoming Gambia case to this list: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), 22 July 2022, icj, Judgment (Preliminary Objections), para. 115, <https://www.icj-cij.org/case/178/judgments>, visited on 28 March 2023.
Belgium v. Senegal [2012] supra note 6; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 1465 unts 24841.
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), 31 March 2014, icj, Judgment <https://www.icj-cij.org/public/files/case-related/148/148-20140331-JUD-01-00-EN.pdf>, visited on 28 March 2023; International Convention for the Regulation of Whaling (1946) 161 unts 2124.
In Belgium v.Senegal, the Court explicitly referred to the common interest protected in the Convention and confirmed that the obligations in question were ‘obligations erga omnes partes’: Belgium v. Senegal [2012] supra note 6, para. 68.
See e.g. I. Venzke, ‘Public Interests in the International Court of Justice – A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)’ 111 ajil Unbound (2017); A. Bianchi, ‘Choice and (the Awareness of) It’s Consequences: The icj’s “Structural Bias” Strikes Again in the Marshall Islands Case’ 111 ajil Unbound (2017); V.-J. Proulx, ‘The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?’ 111 ajil Unbound (2017). See also Marshall Islands case [2016] supra note 91, Dissenting Opinions of Judges Bennouna, Cançado Trindade, Robinson, Vice President Yusuf, and Judge ad hoc Bedjaoui.
Proulx supra note 143, p. 96.
Ibid, p. 101.
Ibid, p. 99.
Posner and Yoo supra note 23, p. 28.
Reparation for Injuries Suffered in the Service of the United Nations [1949] supra note 18, pp. 181–182.
A. De Hoogh, ‘Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States’ (Proefschrift, Katholieke Universiteit Nijmegen 1995) pp. 18–19.
L.-A. Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ 13 European Journal of International Law (2002) p. 1132.
South West Africa (Ethiopia v. South Africa and Liberia v. South Africa), 18 July 1966, icj, Judgment (Second Phase) <https://www.icj-cij.org/sites/default/files/case-related/46/046-19660718-JUD-01-00-EN.pdf>, visited on 28 March 2023 para. 88.
Dupuy supra note 59, p. 1053.
E.g. Convention on Biological Diversity (1992) 1760 unts 30619, Article 5 et seq.
See e.g. in relation to international environmental law, C. Redgwell, ‘International Environmental Law’ in M.D. Evans (ed), International Law (4th edn, Oxford University Press, UK, 2014) 699.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) [1970] supra note 6, paras. 33–34.
Ibid, para. 33–34.
See further Nuclear Tests (Australia v. France) [1974] supra note 129, Oral Arguments on Jurisdiction and Admissibility (Australia), p. 500, <https://www.icj-cij.org/files/case-related/58/058-19740704-ORA-01-00-BI.pdf> visited on 13 December 2023; Nuclear Tests (New Zealand v. France) [1974] supra note 129, Memorial on Jurisdiction and Admissibility Submitted by the Government of New Zealand, p. 204 para. 191 <https://www.icj-cij.org/sites/default/files/case-related/59/9451.pdf> visited on 29 March 2023; Nuclear Tests (Australia v. France) [1974] supra note 129, Dissenting Opinion of Judge Sir Garfield Barwick, p. 437, <https://www.icj-cij.org/sites/default/files/case-related/58/058-19741220-JUD-01-09-EN.pdf> visited on 29 March 2023 – although he seems to add the requirement that the applicant state be specially affected; East Timor (Portugal v. Australia) [1995] supra note 95, p. 102; Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965 [2019] supra note 6, para. 180.
arsiwa supra note 137, Article 42.
Ibid, Article 48(1)(a).
See e.g. Whaling in the Antarctic [2014] supra note 141.
arsiwa supra note 137, commentary to Article 48 [8]. The terminology of ‘obligations erga omnes’ was considered unhelpful.
R. Wolfrum, ‘Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?’ in B. Fassbender and others (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press, UK, 2011) pp. 1138–9.
See Posner and Yoo supra note 23, p. 28.
The itlos Statute and unclos only refer to disputes between states parties or the other entities discussed above: itlos Statute supra note 128, Article 24; unclos (1982) supra note 7, Articles 187, 188. See also F. Ahmadov, The Right of Actio Popularis before International Courts and Tribunals, vol 31 (Queen Mary Studies in International Law, Brill, London, 2018), p. 144.
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), 1 February 2011, itlos, Advisory Opinion, para. 180, <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_010211_en.pdf>, visited on 28 March 2023.
Ahmadov underlines the difference between the right to invoke responsibility under the law of state responsibility and the standing requirements of a particular court or tribunal: Ahmadov supra note 164, p. 144.
European Communities – Regime for the Importation, Sale and Distribution of Bananas, 9 September 1997, wto dsm, Appellate Body Report wt/ds27/ab/r, para. 132, <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/27ABR.PDF&Open=True>, visited on 28 March 2023.
Ibid, para. Appellate Body – European Communities – Regime for the Importation of, Sale, and Distribution of Bananas, wto Appellate Body, visited on 28 March 2023 133.
European Communities – Regime for the Importation, Sale and Distribution of Bananas – Complaint by the United States, 22 May 1997, wto dsm, Panel Report wt/ds27/r/USA, para. 7.50, <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/27RUSA.pdf&Open=True>, visited on 28 March 2023, cited in Bananas – Appellate Body Report [1997] supra note 167, para. 136.
On the development of non-bilateral, objectivised forms of legal obligation in international law and their connection with the community interest, see Thin supra note 61, pp. 52–53.
This is consistent with the argument by Helfer and Slaughter that states do indeed create tribunals which are intended to have a level of independence from the individual interests of states: Helfer and Slaughter supra note 22.
See Posner and Yoo supra note 23, p. 28.
Bananas – Appellate Body Report [1997] supra note 167, para. 132.
See also Helfer and Slaughter supra note 22.
