A rush to judgment? The wobbly bridge from judicial standing to intervention in ICJ proceedings

Abstract

The present article aims to briefly connect two procedural questions that loomed large at two academic events in May 2023. In the first, the authors in this symposium convened for a warm and friendly discussion at the University of Bologna. Among other stimulating questions, participants debated the relationship between, on the one hand, the procedure of third-State intervention in international legal proceedings, and on the other, the doctrine of obligations erga omnes in the invocation of State responsibility. In the latter (much larger) event, Judge Giorgio Gaja, a highly regarded former Member of the International Court of Justice (ICJ), addressed the centenary conference of the Hague Academy of International Law. In his prepared remarks, Judge Gaja recalled that an interest in the fulfilment of obligations erga omnes partes is sufficient to establish the judicial standing of the applicant State when instituting ICJ proceedings. He then observed that he ‘cannot understand’ how the same interest could be insufficient to establish the legal interest required to intervene in those same proceedings. One could infer from Judge Gaja’s statement that our Bologna debate on this very point had been but a dream (or at least exceedingly brief). Yet with the utmost respect to Judge Gaja and his important contributions to international law, this must instead be considered an unsettled debate – one which the ICJ has thus far not been called upon to resolve. Indeed, as set out below, the author considers that a legal interest in the fulfilment of obligations erga omnes or erga omnes partes is itself an insufficient basis to admit third States in the Court’s contentious proceedings. The aim of this article is thus to briefly probe and challenge a point that some of the most renowned figures in our field have framed as indisputable.