The International Court of Justice in the <i>Leiden Journal</i>: A Retrospective

Morgan-Foster, Jason; Pinzauti, Giulia; Philippa, Webb

doi:10.1017/s0922156517000243

Leiden Journal of International Law

2017

DOI: 10.1017/s0922156517000243

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The International Court of Justice in the Leiden Journal: A Retrospective

Jason Morgan-Foster¹,

Giulia Pinzauti²,

Webb Philippa³

Abstract: Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years.… Show more

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The World Court's Jurisdictional Formalism and its Lost Market Share: TheMarshall IslandsDecisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

Proulx¹

2017

Leiden Journal of International Law

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On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

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The World Court's Jurisdictional Formalism and its Lost Market Share: TheMarshall IslandsDecisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

Proulx¹

2017

Leiden Journal of International Law

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‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice

Mistry

2019

Leiden Journal of International Law

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Additional opinions (AOs) – dissenting opinions, separate opinions and declarations, whether authored individually or jointly – are a distinctive characteristic of the ICJ’s jurisprudence. Few decisions of the International Court of Justice (the Court, ICJ) are delivered without any additional opinion attached to it. Yet, despite their ubiquity, there is still significant disagreement as to their relationship to the authority of the Court and its decisions. Although this disagreement is commonly attributed to the different approaches and attitudes traditionally associated with the ‘civil law’ and ‘common law’ traditions, few ask specifically why those traditions take the approach they do, and even fewer consider the appropriateness of the extension of those attitudes to the ICJ, which of course is neither ‘civil law’ nor ‘common law’. In this article, using the work of Mirjan Damaška, I offer a contextually coherent and contextually contingent understand of the theory and practice of additional opinions at the ICJ upon which engagement with this practice – by judges, scholars and practitioners – can be premised. This effort to understand the relationship between additional opinions and institutional authority will, by its very nature, lead to a broader enquiry into the very nature of institutional authority at the ICJ. Having explained the importance of AOs to the structural integrity of the Court’s authority, I will close this article by highlighting the role of various stakeholders when engaging with that practice to ensure that their institutional function is discharged.

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The International Court of Justice in the Leiden Journal: A Retrospective

Cited by 2 publications

References 1 publication

The World Court's Jurisdictional Formalism and its Lost Market Share: TheMarshall IslandsDecisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

The World Court's Jurisdictional Formalism and its Lost Market Share: TheMarshall IslandsDecisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

‘The different sets of ideas at the back of our heads’: Dissent and authority at the International Court of Justice

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