Whose Dispute Is It Anyway? Multilateral Litigation Before International Courts

Proceedings of the ASIL Annual Meeting, vol. 117, pp. 377–387

Abstract

In recent years, the increasing number of third-party interventions in international legal proceedings has sparked debates regarding the role of multilateralism in the adjudication and execution of international law.In the Preliminary Objections judgment issued by the International Court of Justice (ICJ or Court) in The Gambia v. Myanmar case, the Court held that the presence of an erga omnes partes obligation provided sufficient grounds for The Gambia to establish standing to bring its claim.This case constitutes a clear example of a multilateral litigation brought by a party that is not specially affected by the harm claimed in the underlying matter.It has raised questions as to whether the Court is adopting a more expansive stance regarding the scope of erga omnes obligations and the impact this could have on future decisions when the Court is faced with similar legal issues.Meanwhile, the mounting number of third-party intervention requests in ongoing cases such as Ukraine v. Russian Federation raises pertinent questions about the legal nature of these interventions, the Court's stance towards them, and the legal significance the Court will ascribe to them in its deliberations.In light of the aforementioned considerations, this session was designed to delve into the factual and legal aspects of these cases, while navigating the conceptual and practical complexities and ramifications arising from multilateral participation.The discussion primarily revolved around three key topics: (1) standing & obligations erga omnes; (2) intervention as per Article 62 and Article 63 of the ICJ Statute; and (3) multilateralism in international litigation.The panelists specifically addressed the extent and implications of erga omnes obligations, their relationship with locus standi and erga omnes partes, the emerging trends in applying these obligations before the Court and other international tribunals, and the contrasting practices of Article 62 and Article 63 interventions.Notably, recent cases like The Gambia v. Myanmar and Ukraine v. Russian Federation were scrutinized in detail.By engaging the diverse experience of our distinguished panelists, the session aimed to foster research and innovation through these discussions beyond the mere resolution of disputes between directly affected states.The stated objective was to explore whether there is a need for the creation of rules that specifically accommodate multilateral participation in addressing certain questions of international law, paving the way for a more certain, inclusive, and robust framework.

Authors 6

1. Yueming Yan

   Chinese University of Hong Kong

   Affiliation as printed

   The Chinese University of Hong Kong

2. Pem C. Tshering

   Sidley Austin

   Affiliation as printed

   Sidley Austin LLP

3. Ben Juratowitch
   Affiliation as printed

   Essex Court Chambers

4. Gleider I Hernandez

   KU Leuven

   Affiliation as printed

   Catholic University of Leuven (KU Leuven

5. Brian McGarry Aachen

   Leiden University

   Affiliation as printed

   Leiden University

6. Mónica Pinto

   Universidad de Buenos Aires

   Affiliation as printed

   University of Buenos Aires Law School