Incidental Proceedings before the International Court of Justice: The Fine Line between “Litigation Strategy” and “Abuse of Process”

Abstract

Scholars and State counsels have often pointed out the fact that incidental proceedings could be abused, especially when they serve as dilatory mechanisms. While the International Court of Justice has never followed up on such claims, the recent interest in the concept of abuse of process may bring this issue back into focus. The purpose of the present article is to examine whether the notion of abuse of process could actually be applied in such cases, at a time when many types of conduct seem to be loosely labelled as abusive. It highlights the difficulties to reach such a conclusion as well as the necessity for clarification from the Court on what may constitute an abuse of process.