The Changing Structure of the International Court of Justice: Dispute Settlement Embracing International Control

DAI TAMADA

Professor of International Law, Kyoto University

Visiting Professor, Queen Mary University of London

ABSTRACT

The ICJ has expanded two notions: ‘dispute’ and locus standi. As a consequence, the ICJ contentious procedure now admits the following litigation: i) within the framework of a multilateral treaty containing obligations erga omnes partes and a compromissory clause (e.g., the Genocide Convention); ii) any contracting party (State A) can unilaterally generate a dispute against any other party (State B) by relying on the method of inference; and iii) State A is entitled to invoke State responsibility of State B arising from a breach of obligations erga omnes partes. This litigation has important implications. From the practical perspective, the foregoing formula is applicable to many treaties, such as environmental treaties (resulting in climate change litigation), human rights treaties, and disarmament treaties. From the theoretical perspective, the foregoing formula means that the ICJ’s function now embraces the international control procedure. To sum up, the ICJ has evolved from the dispute settlement procedure dealing with the bilateral rights-obligations relationship between two States (for realizing international law of ‘coexistence’) to international control serving to protect the common interests of the contracting parties under multilateral treaties (for realizing international law of ‘cooperation’), thus reflecting the ‘changing structure’ of the ICJ.

SPEAKER

Dai Tamada is Professor of International Law at Graduate School of Law, Kyoto University. He holds MA (Kyoto University 2000) and Ph.D. (Kyoto University 2014). His research areas cover international dispute settlement, international investment law, the law of treaties, and the law of the sea. He has been committee member in several Government organs, including Ministry of Foreign Affairs (MOFA), Ministry of Economy, Trade and Industry (METI), and Ministry of Justice (MOJ) of Japan. His recent publications include Dai Tamada and Keyuan Zou (eds.), Implementation of the United Nations Convention on the Law of the Sea: State Practice of China and Japan (Springer, 2021). His recent interest is to work as a member of the ICCA (International Council for Commercial Arbitration) Panel of Experts to draft the Paris Agreement Conciliation Annex (to be published at COP28).

DISCUSSANT

Veronika Fikfak leads the Human Rights Nudge project. She is an Associate Professor at University College London, School of Public Policy and at the Centre of Excellence, iCourts at the University of Copenhagen. She is also a Senior Humboldt Fellow at the Institute of Law and Economics in Hamburg. Veronika’s research interests are in the fields of international law, human rights, and public law. Her current research focuses on compliance with international norms, access to human rights justice and automation, interaction of domestic and international law, and system design. She employs quantitative and qualitative approaches in her work, informed by psychology and behavioural economics. Her work has been funded by the European Research Council, UK’s ESRC Future Research Leaders Grant, the British Academy, Norway's Research Council, Carlsberg Foundation, and the Humboldt Foundation. She sits on the editorial boards of Elgar International Law Book Series and the Cambridge Journal of International Law. She is a member of the European Society of International Law Board, where she co-founded the ESIL Interest Group on Social Sciences and International Law. She also serves as a judge ad hoc at the European Court of Human Rights. Veronika previously lectured at the University of Cambridge and Sciences Po in Paris. She also worked at the European Court of Human Rights, the International Court of Justice, and at the Law Commission for England and Wales. She holds a masters and doctorate from the University of Oxford and a first law degree from the University of Ljubljana.