Some Challenges of International Litigation

Abstract

I first studied international law 35 years ago. As a candidate for what was then Section D of the LL.B. (the public international law papers) at Cambridge, I attended lectures and seminars on the International Court of Justice (ICJ) and on international, that is inter-state, arbitration. It was a wonderful time to be a student of these subjects, not least because we were studying case law when there were comparatively few cases to study, which left plenty of scope for the enjoyment of other aspects of student life. The ICJ, whose reports for 1977 are only four pages long, had only one case pending before it (over which it would soon decide that it lacked jurisdiction).1 The European Court of Human Rights (ECtHR) was then the only functioning human rights court and its entire jurisprudence could still fit into a single volume of law reports, although the European Commission of Human Rights, to which at that time all applications had to be made, had decided many more cases. Investor-state arbitration was largely unknown. There were no international criminal courts or tribunals and almost no serious discussion of the possibility of creating such bodies. Moreover, it would be difficult to argue that the proceedings which did take place at that time occupied a central place in international relations. Although some of the judgments given by the ICJ during the 1970s were to have an important effect on the development of the law, they had less obvious impact at the time. Between 1971 and 1980 only nine contentious cases were brought before the Court. One of those was withdrawn2 and one was still pending at * Judge, International Court of Justice. 1 Aegean Sea Continental Shelf (Greece v Turkey), Judgment, ICJ Reports 1978, p. 3. 2 Trial of Pakistani Prisoners of War (Pakistan v India), Interim Protection, Order of 13 July 1973, ICJ Reports 1973, p. 328. An Order officially recording the discontinuance of the proceedings was issued on 15 December 1973.