Enhancing ICJ Procedures in Order to Promote Global Public Goods: Overcoming the Prevailing Tension between Bilateralism and Community Interests

Abstract

By developing international law, international courts - ‘intermediate Global Public Goods (GPG)’- can also contribute to the protection and promotion of final GPG. In international legal discourse, the term is often linked but not limited to the idea of erga omnes norms. The ICJ, in particular, is capable of promoting GPG by adjudicating inter-State claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. Whereas the rules of substantive law that protect community interests are considered as GPG, those guiding international adjudication are of a procedural nature. Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. This article argues that using its power to ‘frame rules for carrying out its functions’, independently from States’ consent, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever GPG are at issue. Most procedural rules can be adjusted and tailored for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals, acknowledging the relation between the emergence of soft international law-making (procedure) and its role of addressing the provision of GPG (substance).