De Corte Internacional para Corte Mundial: A Corte Internacional de Justiça e a comunitarização do direito internacional

Abstract

Modern international law was created on voluntarist bases as a legal order essentially designed to regulate bilateral relations between sovereign entities. Therefore, it was constructed under the influence of private law concepts. This bilateralism characteristic of international law is reflected in the rules of functioning of the International Court of Justice, principal judicial organ of the United Nations. However, since mid-20th century, international law has been going through a process of communitarization, characterized by the emergence – or recognition of existence – of fundamental values and common interests shared by the humankind as a whole, breaking away from its traditional bilateralism. In this scenario, this research is dedicated to study how the International Court of Justice falls into this process of communitarization. The goal is to investigate how the Court has stood in the transition from an essentially bilateralist international to an international based on common values and diffuse interests. To do so, the Hague Court’s case law will be studied in order to assess how it has applied legal concepts associated with these fundamental values and how it has pronounced itself in cases that involved community interests. The Court’s contentious procedural rules, highly adversarial as a reflection of a bilateralist international law, will also be examined, juxtaposing them with the Court’s advisory jurisdiction, more favorable to the submission of matters that involve interests of the international community as a whole. Furthermore, the phenomenon of proliferation of international courts experienced foremost since the 1990s will be discussed. At the end, this research aims at answering whether there is still a place for the International Court of Justice in the 21st century international community and identifying its role in the communitarization of international law. The conclusion is that the ICJ, an organ created at the beginning of the 20th century to act as an international court (between nations), can – and should – loosen its procedural hurdles and adapt itself to the new needs of the international community so that it can become an actual world court.