A Reluctant Guardian: The International Court of Justice and the Concept of 'International Community'

Abstract

The concept of ‘international community’, nebulously defined at best, has the potential to generate specific and far-reaching legal effects if understood in a certain manner. In this article, the author asserts that the understanding of the judicial function of the International Court of Justice requires a full understanding of the Court’s conception of the community in which it is situated. First the author analyses the Court’s pronouncements to illuminate its minimalist, cautious definition of the concept. Special attention is paid to the Court’s interpretation and application of peremptory norms (rules of jus cogens ) and obligations erga omnes , two concepts it has treated with reticence. Indeed the Court’s understanding of the concept remains profoundly ambivalent and at the rearguard of current international legal debate; this provokes some reflections as to the continued relevance of the concept beyond the work of the Court, suggesting that although it might remain a purely juridical fiction bereft of legal effect, legal scholarship can still use the concept to channel debate on the development of international law.