The Dispute Settlement Function of the International Court of Justice in Croatia v. Serbia

Abstract

This chapter revisits a central premise of the public law theory of adjudication, namely, the view that the traditional understanding of courts as dispute settlers is inadequate. Admittedly, the function of international courts is larger than the settlement of disputes, and in this sense the traditional understanding is incomplete. International courts are undoubtedly more than “mere instruments of dispute settlement whose activities are justified by the consent of the states that created them and in whose name they decide”1. International courts can also act as law-makers, as promoters of global interests, as institutions within larger legal regimes, and also as institutions that exercise public authority. To an extent, the function of an international court is in the eye of the beholder, whether a judge, a scholar, a diplomat, or a member of the public. Each of these actors may perceive a given judgment or award through a particular lens. A judgment may strike a judge as an opportunity for the court to promote global interests, while an academic, observing from the outside, may primarily understand the same judgment as an instance of law-making. In light of the many ways in which international courts may be perceived, the dispute settlement account does indeed paint only part of the picture. This contribution argues, however, that the dispute settlement function of international courts merits a more nuanced account. Before we set aside the conception of courts as instruments of dispute settlement, in search of a more satisfactory explanation of the role that international courts are playing today, some of the finer aspects of their dispute settlement function ought to be detailed. This chapter therefore offers a critique of the 1.