Standing Before the International Court of Justice: A Matter of Court Procedure, Substantive Law, or Something Else?

Abstract

For the International Court of Justice (ICJ) to adjudicate on the merits of a dispute, an applicant state must first be able to invoke the international responsibility of the respondent state; that is, the applicant must have legal standing. Traditionally, this is established through the showing of an injury suffered (injury requirement), but the ICJ has gradually developed exceptions to this rule jurisprudentially. Earlier notable cases in this regard include Barcelona Traction and Belgium v Senegal, while recent cases include Canada v Syria and the advisory opinion on climate-related litigation. However, this article takes the view that standing has to be properly rethought and re-examined from first principles. It considers and analyses the two most plausible (yet arguably diametrically opposed) ways of conceptualising standing: is standing a matter of the ICJ’s own procedure, which means it enjoys greater latitude in formulating the requirements surrounding standing, or is it a matter of substantive international law, which means the court can only find that a state has standing if its arguments are grounded in a source of law provided for in Article 38(1) of its statute? It concludes that although the exceptions to the injury requirement can, conceptually, be derived from either treaty law or the ICJ’s procedural rule-making power, insufficient evidence exists to establish their existence in custom or as a general principle of law. Further, where the treaty does not provide for standing on the basis of the erga omnes partes character of obligations, the ICJ should be slow to imply such standing into the treaty.