Inarticulate and Unconscious: Non-Justiciability before the International Court of Justice

Abstract

The International Court of Justice (ICJ) has explicitly rejected the notion that some disputes are non-justiciable. This article argues that despite these assertions, some disputes before the Court are de facto non-justiciable. The Court’s jurisprudence shows that techniques of avoidance are used when confronted with non-justiciable issues. These avoidance techniques include the dismissal of cases on technical grounds, and the partial or non-assertion of jurisdiction, which can result in conflicting or irreconcilable jurisprudence. The non-justiciability of disputes before the ICJ arises from the Court’s judicial function, which is in turn shaped by its institutional design and the scope of its powers. However, the use of avoidance techniques to confront non-justiciable disputes may raise questions about the fairness of dispute settlement before the ICJ.