International procedural regulation in the common interest: the role of fact-finding and evidence before the International Court of Justice

Abstract

BACKGROUND: By developing international law, international courts can also contribute to the protection and promotion of community interests. The ICJ, in particular, is capable of promoting community interests by adjudicating inter-State claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. OBJECTIVE: Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. The objective of the research project is to access the ways in which ICJ procedural rules can be adjusted and tailored for multiparty aspects in order to protect community interests and enhance international court’s legitimacy. MATERIAL AND METHODS: Qualitative analysis of extensive and specialized bibliography. Implementation of deductive method. RESULTS: Most procedural rules can be adjusted for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy. This research project identified the need to expand the following procedural rules:  intervention of third parties; participation of non-State actors as amici curiae; fact-finding powers; and rules of evidence.    CONCLUSIONS: This article argues that the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. In particular, this article identified two issues that deserve further analysis with a view to promoting the interests of the international community: fact-finding in complex cases involving community interests, which includes the need for independent expertise and guidance on cross-examination issues; and transparency in the production of documentary evidence and its consequences in community interests’ cases.