Informal Communications to the International Court of Justice in Cases of Non-appearance

Abstract

In recent years, the non-appearance of respondent States has been experiencing a renaissance before the ICJ. Frequently, the practice is concomitant with informal communications by the non-participating party to the Court. The ICJ has been rather generous in considering such communications in light of the obligation under Article 53(2) of its Statute to examine comprehensively and proprio motu its jurisdiction and the merits in cases of non-appearance. However, informal communications force the Court into a dilemma. For one, they challenge the equality of the parties and the good administration of justice. More generally, taking too lenient an approach allows non-participating States to “have their cake and eat it too”: they try to delegitimize the proceedings while simultaneously presenting their position in a favourable light. This article, therefore, encourages the Court to take a more formal approach regarding informal communications while respecting its duties under Article 53(2) of the Statute.