Killing it softly? The effect of common values of the international community on the role of consent in questions of jurisdiction

Abstract International courts and tribunals (ICTs), especially the ICJ, are increasingly confronted with ‘public interest’ litigation aimed at protecting common values. This trend raises questions as to whether and how international procedure should adapt as the substantive legal order becomes more value-oriented, including in the field of jurisdiction. While jurisdiction is traditionally portrayed as a binary, consent-bound gateway that legitimizes adjudication, a closer examination reveals a more nuanced picture, in which flexibility operates alongside formal constraints. This is in line with the general observation that procedure can also serve as an expression of the international judicial function’s public dimension: it structures standing, incidental proceedings and the reach of judicial decision-making. The article argues that common values may inform the exercise of procedural discretion also with regard to jurisdiction, softening the role of consent. Focusing on the ICJ, it identifies jurisdictional ‘inlets’ through which value considerations can operate balacing both internal and external values in the exercise of the judicial function. It thereby shows that questions of jurisdiction are not merely technical and binary in nature, but they also constitute a context in which ICTs exercise procedural discretion against the background of a value-oriented international legal order.