When a Dispute Exists: the Emerging Evidentiary Practice of the ICJ in Common Interests Proceedings

Abstract This contribution considers the practice of determining the existence of a dispute in proceedings before the International Court of Justice and explores the extent to which such assessment varies – or should vary – in relation to the legal interest protected. This question appears increasingly relevant in the context of common interests proceedings before the ICJ , that is, in cases in which the legal standing of the applicant(s) is based on a common interest in the compliance with erga omnes (partes) obligations. Zooming in on the requirements elaborated by the Court’s case law to date, the article argues that diverging theoretical postures – termed dialogic vs. systemic – inform the evidentiary approaches that have so far emerged and that are essentially discretionary. This contribution aims to shed light on how the Court’s evidentiary approach has adjusted to common interests proceedings to stand the test of time, while cautiously preserving the performance of the Court’s judicial function.