Litigating Collective Obligations before the International Court of Justice: Progress, Challenges and Prospects

Abstract

Abstract The International Court of Justice (ICJ) has generally dealt with questions raised by cases concerning the common interests of States in an episodic, fragmentary, and at times contradictory manner. However, a number of significant rulings have thus far been given, and recent developments have brought the issue of public interest litigation back into the spotlight. This article aims to bring together into a coherent and systematic framework the relevant data that can be drawn from the ICJ’s contentious case law. To this end, the examination is divided into three parts, distinguishing respectively between questions that can be considered to have been already resolved (i.e. questions concerning the jurisdiction in public interest cases), those that are currently being clarified (i.e. the issue of standing to institute proceedings for the protection of common interests) and those that are still entirely open (i.e. the qualification of the legal position of the omnes, the relationship between the standing of the specially affected State and that of the other omnes, and the remedies that the omnes are entitled to claim from the wrongdoer). The article highlights the ICJ’s unwillingness to address the question as to whether Article 48 ARSIWA may currently be deemed to reflect customary international law and some inconsistencies between the approaches of the ILC and the ICJ as regards collective obligations. This proves that, despite considerable progress in recent case law, the legal regime of collective obligations remains far from being clear, and many aspects still deserve close scrutiny.