Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the International Court of Justice

Abstract

International procedural law remains largely party-oriented and directed at the preservation of individual interests. A tension therefore arises when the ICJ is asked to adjudicate “public interest norms”. Against this background, one might ask whether advisory opinions by the ICJ might serve as a more appropriate forum for protecting and enforcing public interests. Among others, they might prove better equipped for, e.g., clarifying and interpreting public interest obligations without a breach thereof necessarily having already occurred, or in the case of breaches by multiple parties. However, among the generally low numbers of requests for opinions by the ICJ so far only two can be classified as “traditional public interest litigation”. Recent initiatives on “community-oriented” interests have not (yet) moved forward, leaving their true potential open for debate. The article focuses on the ICJ’s procedural framework in advisory proceedings and its suitability as a forum for enforcing public interests. The argument is made that while indeed several rationales can be identified which make this procedure a seemingly well-suited format for public interest litigation, the filing of requests is often subject to political hurdles and dependent on the overall perception of the Court’s exercise of its judicial function. This is rounded off by a discussion of different proposals and an assessment whether these might lead to a strengthening of the Court’s competence when it comes to serving as a forum for “public interest litigation.”