Monthly archive December, 2017

‘Establishing the existence of a dispute before the International Court of Justice’: Glimpses of flexibility within formalism?

1. Introduction Besides marking the celebrated 70th anniversary of the International Court of Justice (ICJ or the Court), 2016 will stand out as the year in which the requirements for the determination of the most basic condition for the exercise of the Court’s contentious jurisdiction – the existence of a dispute – have been called...

Decentring the ICJ: A critical analysis of the Marshall Islands judgments

1. Introduction The aim of this reaction paper is to address some of the ideas raised by the masterful analysis of Professor Beatrice Bonafé, exposing them to a different method, a critical legal approach-based investigation of the discourse of the Court. Indeed, by adopting a different method, a different story can be told about the...

Establishing the existence of a dispute: A Response to Professor Bonafé’s criticisms of the ICJ

Victrix causa diis placuit sed victa Catoni. Lucan, Pharsalia, I.128.   1. Introduction In her paper published in QIL as basis of this Symposium, concerning the decision of the ICJ on the existence of a dispute in the Marshall Islands case,[1] Professor Bonafé, a modern Cato, embraces with enthusiasm the losing side.[2] She supports the...

‘Establishing the existence of a dispute before the International Court of Justice’: Between formalism and verbalism

1. Rather than a new approach, the Marshall Islands decisions are the culmination of a judicial trend towards formalism and verbalism ‘The Court, as a court of law, is called upon to resolve existing disputes between States. Thus, the existence of a dispute is the primary condition for the Court to exercise its judicial function’.[1]...

The awareness requirement and its problematic consequences for the Court’s jurisdiction

1. Introduction The paper of Béatrice Bonafé takes up a very important and basic question concerning proceedings before the ICJ, namely the issue of the existence of a dispute. It is absolutely evident that where there is no dispute, there is nothing to be decided by a court. But what exactly qualifies a dispute? The...

Establishing the Existence of a Dispute before the International Court of Justice: Drawbacks and Implications

I. Introduction The determination of the existence of the dispute is a crucial aspect according to which the International Court of Justice (ICJ or the Court) decides whether it can exercise its contentious jurisdiction. ‘The Court, as a court of law, is called upon to resolve existing disputes between states. Thus, the existence of the...

Determining the existence and content of a dispute: in search for legal criteria

Introduced by Paolo Palchetti     The existence of a dispute between the Parties is a condition of the International Court of Justice’s jurisdiction. In the last years, the International Court of Justice (ICJ) has repeatedly addressed the question of whether there existed a dispute between the parties (see Application of the International Convention on...