Abstract Disputes involving complex scientific issues expose a fundamental tension between law and science. Although the International Court of Justice increasingly confronts such disputes, it continues to address scientific evidence on an ad hoc basis, leading to inconsistent practice and repeated missed “golden opportunities” to adopt a procedurally-sound framework. However, the Climate Change advisory proceedings offered a renewed opportunity, yet the Court instead informally consulted the Intergovernmental Panel on Climate Change and grounded its factual conclusions almost exclusively in their findings. This article examines two questions: whether this approach constituted another missed opportunity to establish a structured method for assessing evidence outside the judges’ expertise; and whether a viable evidentiary tool exists to address the challenges posed by the Court’s ad hoc approach. It argues that court-appointed experts acting as intermediaries between the judges and the scientific record would provide such a mechanism while also preserving the Court’s judicial function.
Abstract When may the International Court of Justice ( ICJ ) remove a case from the General List? In Sudan v. United Arab Emirates , for the first time the ICJ removed a case from the General List in the form of an order despite the applicant arguing that a jurisdictional basis was in force. However, the Court provided little reasoning for its decision, and several dissenting judges were very critical thereof. This article assesses the correctness of the Court’s decision, while considering its implications moving forward. Analysing the main arguments of the dissenting judges – namely, incompetence, failure to respect the right to be heard and potential for the Court to revisit prior jurisprudence – the article argues that these criticisms are not convincing. The article suggests that the present decision indicates the Court’s willingness to remove a case from the General List if its settled jurisprudence makes clear it lacks jurisdiction.
Abstract This article examines the inherent tension between two competing frameworks in international law: jurisdictional limitations of international courts and tribunals, and systemic integration. While jurisdictional limitation seeks to confine disputes within the defined scope of a particular treaty, systemic integration emphasizes the interconnected nature of international legal norms. This tension is particularly evident in so-called “recharacterised disputes”, where a broader dispute or conflict has been recharacterised so as to fit within the terms of a particular jurisdictional clause. Focusing on the practice of the International Court of Justice ( ICJ ), the article explores how this tension has influenced cases involving the Convention for the Elimination of Racial Discrimination ( CERD ) 1965. The CERD ’s open-textured language and reference to broader human rights norms, and its frequent use by states as a jurisdictional basis in the context of broader conflicts, make it especially relevant for such analysis. Although systemic integration may initially seem to expand jurisdictional scope in re-characterised disputes, the underlying conceptual tension limits its practical impact. By assessing these key ICJ cases and their handling of jurisdictional limits and systemic integration, this article offers insights into how these competing legal frameworks interact and shape international dispute resolution.
Abstract Until recently, the International Court of Justice had few opportunities to clarify the scope of third-State intervention under Articles 62 and 63 of its Statute. In 2023, however, 32 States intervened in the preliminary objections phase of Ukraine v. Russia . These interventions were unprecedented due to not only their sheer volume, but their timing as the first interventions admitted in a phase other than the merits of the case. However, a question left unanswered concerns the possibility of intervention in the provisional measures phase. As parties increasingly seek provisional measures to restrain ongoing international conflicts, this article argues that these measures do not simply have temporary, inter-party effects but can instead profoundly impact the legal interests of third States, including both uniquely held interests and those shared with the international community. This article contends that these third States can and should be permitted to intervene in the provisional measures phase under Articles 62 and 63.
Abstract This contribution analyses the reasoning employed by the International Court of Justice ( ICJ or the Court) in response to instances of dispute recharacterisation. While States may reframe disputes so to use a jurisdictional basis available to them, it is less intuitive why the Court might accept or reject such recharacterisations. This work aims to understand the ICJ ’s decision-making through a contextual analysis, rather than making normative claims about its approach. It examines how, while recharacterisation provides States with opportunities to present their cases, it also gives the Court the chance to shape its function. To this end, the contribution is divided into two parts: the first part maps the tests and reasons used by the Court in relation to the determination of its jurisdiction, and the second contextualizes these decisions based on issue area, historical context, and procedural stage. The contribution concludes with remarks on potential future research directions on this topic.
Abstract The ICJ dealt with the issue of reparations in international armed conflict in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). The ICJ relied conceptually on the work on the subject-matter by the Eritrea-Ethiopia Claims Commission ( EECC ). This close connection could also revitalize other EECC statements on compensation. Particularly, the use of non-reimbursable foreign aid received by the injured State as a factor that reduces compensation to be paid by the responsible State. This article challenges this approach for lack of support in the Articles on State Responsibility, identifies potential counter-arguments, such as the existence of punitive damages or double recovery if non-reimbursable foreign aid is not discounted, and responds to them. As the EECC and ICJ recognized, war compensations remedy only a fraction of the injury, so this article seeks to avoid a further erosion of an already low war reparation.
A non liquet occurs when a competent international court declares itself unable to address substantive issues of international law due to a gap ( lacuna ) in the applicable law. While the possibility of non liquet was widely accepted among 19th-century scholars, it became increasingly controversial as international law evolved into a more structured legal system. In the 1950s and 1960s, amidst a re-negotiation of international rules in various fields driven by the emergence of geopolitical rivalry, new States and technological progress, the concept featured in the writings of prominent scholars such as Hersch Lauterpacht, Julius Stone, Hans Kelsen, and Rosalyn Higgins, mainly reflecting their conception about the international judicial function. Since then, however, the admissibility of non liquet has remained a marginal and underexplored aspect of procedural law. This is also because the limited number of precedents has contributed to the prevailing view that international courts are subject to a general prohibition against declaring a non liquet . This article re-examines the problem of non liquet with the aim of bringing it back into the spotlight – not merely from a theoretical perspective, but as a practical concern. It argues that, far from being prohibited, non liquet , in both its formal and material dimensions, remains a procedurally and normatively admissible technique of last resort, and that the International Court of Justice has, in fact, resorted to it when confronted with real gaps in the law. More significantly, in an era marked by geopolitical fragmentation and the inability or unwillingness of political actors to regulate adequately pressing global issues, the power of international courts to acknowledge legal indeterminacy through non liquets may offer important advantages over other alternatives.
This article investigates the impact of the Hague Academy courses, published in the Recueil des Cours , on international legal practice. In particular, it examines how states engage with the courses at the International Court of Justice ( ICJ ) as subsidiary means for determining rules of international law. It employs an empirical approach to systematically assess how states utilize the courses to persuade the ICJ , using both quantitative and qualitative tools to analyze all written and oral proceedings of concluded cases and advisory opinions from the ICJ ’s establishment in 1945 to the Academy’s centenary in 2023. In doing so, it aims to illuminate states’ perceptions of the courses’ authoritative value. It begins with a brief introduction; Section 2 discusses the role of the Hague Academy courses as subsidiary means within the doctrine of sources. Section 3 presents the data and analyzes it quantitatively. Section 4 proceeds with a qualitative analysis. Section 5 concludes.
In the field of international investment, there is a high propensity to litigate in different fora and to initiate multiple proceedings on the same or related disputes. These procedural tactics may have negative consequences for the effectiveness of the Investor-State Dispute Settlement ( ISDS ) system. For example, multiple proceedings may lead to inconsistent decisions, double recovery, duplication of costs and efforts, and imbalance between the parties. For several years, the United Nations Commission on International Trade Law ( UNCITRAL ) and the International Centre for Settlement of Investment Disputes ( ICSID ) have been working to reform the ISDS system to improve its effectiveness. This article examines how these legal challenges have been addressed in the context of the proposals set out in the Draft Provisions on Procedural and Cross-Cutting Issues.
In an era of increasing multi-fora litigation, international adjudicators regularly engage with the work of other actors, generating a dense web of cross-references. While much has been written about the legal and systemic effects of this practice – such as mitigating fragmentation and fostering judicial dialogue – this article explores a lesser-studied function: the role of cross-references in the discursive self-presentation of international adjudicators. It terms this process “identity intertextualism” and explores how textual cues contribute to adjudicators’ efforts to position themselves within a broader network of institutions and actors. Drawing on a close reading of rulings from the European Court of Human Rights in the inter-state applications brought by Georgia against Russia, the article offers an initial theoretical account and an exploratory illustration of how cross-references participate in judicial identity-building. Through this lens, multi-fora litigation appears not merely as a site of strategic forum shopping but also as a space where adjudicators articulate and perform their institutional identity.
Provisional measures at the International Court of Justice have gained prominence, evolving from a peripheral tool to a pivotal feature of litigation. This article delves into the increasingly relevant phenomenon of consecutive provisional measures requests, namely, instances where more than one such request is submitted in a single case. When facing consecutive requests, the Court must ascertain the existence of "some change in the situation" before re-evaluating the preconditions for interim relief. This "situational change test" is not without difficulties. The article traces it back from its origins in 1927 before the Permanent Court of International Justice all the way to the International Court of Justice's most recent case law, whilst spelling out persisting challenges. The article argues that these challenges are inevitable because the situational change test is premised on a misconception about the way facts enter the courtroom-not as a static picture but as a dynamic narrative.
The negotiation precondition stipulates that a state party can only refer a dispute to a judicial body if the dispute cannot be settled by negotiation. Despite its widespread use in compromissory clauses of treaties, the International Court of Justice's treatment of the negotiation precondition remains understudied. This Article clarifies the doctrinal substance of the negotiation precondition in the ICJ's jurisprudence. It then argues that, at the preliminary objections phase, the ICJ has generally taken a permissive approach to interpreting and applying the negotiation precondition. Although the ICJ's approach facilitates access to adjudication, it risks nullifying the precondition. To reconcile accessibility with underlying purposes of the precondition, this Article invites the ICJ to adopt a conceptually and practically more robust approach to assessing the negotiation precondition at the preliminary objections phase.
Article 62 of the Statute of the International Court of Justice allows third States to intervene in proceedings when they can demonstrate an interest of a legal nature that may be affected by the Court's decision. The article delves into the complexities of Article 62 intervention in the context of obligations erga omnes (partes), emphasizing the transition from traditional bilateral dispute resolution to one that recognizes community interests. Through an analysis of, inter alia, the I CJ's case law and the 2001 Articles on Responsibility of States for Internationally Wrongful Acts, the article considers the potential for Article 62 to serve as a mechanism for advancing community interest intervention. While the Court's approach to fully operationalizing the erga omnes mindset is still marked by caution, it seems that the growing recognition of obligations of an erga omnes character may necessitate an expanded interpretation of the requirements under Article 62 to reflect the collective concerns of the international community. This would align with the shifting dynamics of international law, where safeguarding fundamental universal interests increasingly intersects with the adjudication of inter-State disputes.
The advisory proceedings of the ICJ and its predecessor, the PCIJ, have traditionally drawn upon the procedural rules and practices established in contentious proceedings. However, this process of assimilation has never been automatic; rather, it reflects a discretionary authority exercised by the Courts, now explicitly enshrined in Article 68 of the ICJ Statute. Departing from prior scholarship that primarily catalogues instances of such assimilation, this article examines the broader factors influencing the ICJ’s discretion in assimilating its two distinct procedures. Beyond institutional principles, the analysis underscores the significant influence of a pending dispute underlying the questions submitted for advisory opinions, illustrating its role in shaping the Court’s discretionary choices. Furthermore, the study focuses on the ICJ’s interpretation of its discretion and argues that the Court does not confine itself to the assimilation of provisions but also incorporates adversarial procedural concepts and practices into its advisory procedure.
More and more frequently, parties are submitting multiple requests for provisional measures within the same proceedings. These include requests for the modification or revocation of existing provisional measures, or for the granting of new provisional measures. However, the practical application of these procedures is problematic. It remains unclear whether a modification may also serve to “clarify” or “specify” existing provisional measures. There is ongoing debate as to whether non-compliance with the previous measures may be taken into account when considering modification. Some requests for modification have been wrongly submitted and examined as if they were requests for new measures. Certain judges argue that international courts should adopt a more flexible approach to these conditions, at times even bypassing them. For the sake of their legitimacy and prestige, international courts are urged to begin stabilising their jurisprudence.
This article explores the complex dynamics of treaty interpretation, highlighting the tension between States' desire to control legal interpretation-often to limit obligations-and their occasional delegation of interpretative authority to judicial bodies. This power struggle underscores a persistent clash between State sovereignty and judicial independence, fuelled by institutional and personal factors. Analysing treaty interpretation as a form of disguised amendment and the jurisdictional challenges in international adjudication, the article reveals underlying mistrust as a barrier to cooperative frameworks. The "human element" is emphasized, examining how the personal experiences and societal contexts of legal interpreters may shape outcomes. Contrary to serving as a beneficial checks and balances system, the ongoing struggle signals deep-rooted mistrust embedded in an international system wary of relinquishing sovereign control. Advocating a paradigm shift, the article calls for fostering a collaborative, trust-based international legal order essential to addressing procedural and substantive challenges in treaty interpretation.
