Full Description
"In a world where inter-State multi-forum litigation multiplies, so does the risk of courts becoming diplomatic platforms to air State grievances." Nowadays, the ICJ is called to confront this risk when dealing with the main political issues of the day. The book draws inferences from legal and political sciences to assess ICJ authority when crises make their way to it as part of a multi-forum litigation strategy. It identifies the essential characteristics of this strategy and delineates ICJ instrumentalization against this background. Three running examples expose the many roles implanted in the ICJ when it is so instrumentalized. And they determine the legal and policy ramifications ensuing from a State's attempt to engage in such a judicial-'diplomatic' campaign.
Contents
Contents
Foreword
Preface
Acknowledgments
1 Multi-forum Litigation Strategy in an Inter-state Setting: What Is, Thrust of, Systematization
1 The Changing Landscape of Inter-state Litigation: Litigation as Diplomacy
2 Defining 'Multi-forum Litigation Strategy'
2.1 Essential Characteristics
2.1.1 A Litigation Strategy
2.1.2 A One Actor Strategy
2.1.3 A Multi-forum Strategy
2.2 Multi-forum Litigation Strategy as a Concept Distinct from 'Lawfare' and 'Strategic Litigation'
3 Book Objectives
4 Book Structure
2 Engaging the ICJ in a Multi-forum Litigation Strategy: The One Where an Old Map Was Used to Vindicate New Myths
1 Ukraine v. Russia as a Multi-forum Litigation Strategy Paradigm
2 War in Ukraine after 24 February 2022: International Judicial Mechanisms in the Mix
2.1 An Exceptional ICJ Case
2.2 ECtHR, International Criminal Court, International Investment Tribunals: The Story Continues
3 De Jure Complications: Analogies with Private vs State Multi-forum Litigation before International Fora
3.1 Lis pendens: Parallel Litigation
3.2 Res judicata: Consecutive Litigation
3.3 Abuse of Process
3.3.1 A Comment on the Rhetorical Use of the Abuse of Process Admissibility Objection
4 Instrumentalizing icj Judgments in a Multi-forum Litigation Strategy: the Parties' Objectives
4.1 The ICJ, an Authoritative Institution?
4.2 Instrumentalizing the Court's Legitimate Authority
4.3 Instrumentalizing the Court as a Forum for Political Advocacy
5 The Court as a Political Agent of Dispute Resolution
6 Legitimacy Concerns from the Employment of Multi-forum Litigation Strategies
3 Provisional Measures: Unripe Dispute Settlement: The One Where Isolation Was Not Good for Anyone
1 Introduction
2 A Quasi-autonomous Dispute Settlement Mechanism
2.1 The Normative Context: a Few Sketchy Rules
2.2 The Jurisprudential Prerequisites
2.2.1 Prerequisites Aimed at Securing Protected Interests: a Purpose Overreach
2.2.1.1 Plausibility of Rights
2.2.1.2 Link between Rights and Measures
2.2.2 Prerequisites Aimed at Securing the Integrity of the Proceedings: beyond the Interests of the Parties
2.2.2.1 Prima facie Jurisdiction
2.2.2.2 Irreparable Prejudice and Urgency
3 Instrumentalization of icj Interim Protection
3.1 Provisional Measures as Standalone Actions
3.1.1 Provisional Measures as Ends; Norm Compliance
3.1.2 Provisional Measures as Means; Pursuing Strategic Benefits
3.1.2.1 Creating the Shadow of the Law
3.1.2.2 An Abusive Litigation Strategy?
3.1.2.3 The Spill-Over Effect of Strategic Benefits
3.2 Provisional Measures as Part of a Multi-forum Litigation Strategy
3.2.1 Qatar v. UAE: Provisional Measures at Centre-Stage
3.2.2 Maximizing Strategic Benefits
4 The Court as a Crisis-Manager
4 Advisory Opinions: Bilateral Disputes in a Multilateral Setting: The One Where Postal Stamps Herald Justice
1 Introduction
2 The ICJ's 'Compulsory' Advisory Jurisdiction on Inter-state Disputes
2.1 PCIJ Advisory Opinions as a Dispute Settlement Instrument
2.2 ICJ Advisory Opinions as Advice against or Despite State Consent
2.2.1 The Normative Framework: a New Role For Advisory Opinions
2.2.2 Jurisprudential Practice: the Non-binding and Intra-organizational Character of Advisory Opinions
2.2.3 Jurisprudential Practice: Placing the Dispute in a 'Broader Frame of Reference'
2.3 Compelled to Advice: The Chagos Opinion
3 Instrumentalization of ICJ Advisory Opinions in the UN Era
3.1 The Curious Legal Effect of icj Advisory Opinions
3.2 Advisory Opinions as de facto Dispute Settlement Rulings
3.2.1 Chagos as a Watershed
3.2.2 The Political Ramifications of icj Advisory Opinions after Chagos
4 Beyond the ICJ: IACtHR Advisory Opinions as Part of a Multi-forum Litigation Strategy
5 The Court as a Rule-Maker: a New Golden Era for ICJ Advisory Opinions?
5 The Many Roles of the Court in the Changing Landscape of Inter-state Litigation
Index
