CaPE has created a novel approach to the understanding of the ICJ and its jurisprudence. In the first paper, I conclude that since 1989 the Court has been operating in a world characterized not so much by the threat of a major war among Great Powers, but rather in a world of risks. There is a major change of the international environment between the period of the Cold War, when the context of the Court’s jurisprudence related to the prevention of a major East-West conflict, and the post-1989 period. My study is based on an in-depth analysis of the positions of Thomas Hobbes.
In the second study of the project, I introduce the discussion of geopolitics in the analysis of Court’s jurisprudence on negative peace and security. This is a major turn in scholarship, which has so far ignored this dimension. Here, I provide evidence that the change of the geopolitical balance and the emergence of new actors. The suppression of the threats to the peace as understood by the UN Security Council has become the core interest that steers the Court’s jurisprudence in the field of security.
The third study is about territorial governance, positive peace, and self-determination. Here, I develop the idea that self-determination is not merely a ‘right’ in international law, but rather a principle that fulfils specific functions. I explore the decisions of the Court that relate to self-determination and I conclude that the Court is hesitant to adopt a certain model for governance, but that its concern is rather the governability of a territory and its stability.
The fourth and last study reflects on the authority of the Court. The authority depends on the unique function that the ICJ performs, which is to relate international law to the diplomatic and geopolitical environment. How this linkage takes place, is a matter of judicial policy and interpretation of the pertinent norms. The authority of the Court is maximized, if it succeeds in finding the right balance between these two poles. Success or failure depend on many factors, in particular on whether the Court is able to distinguish between the power of States, in particular of Great Powers, and the power of function systems, which define the structural conditions and constraints, under which States interact with each other.
The impact of CaPE will be long-term. I hope to contribute to a turn in the analysis of the ICJ that includes sociological and theoretical aspects. There are so far two encouraging signals for the impact my research will have. First, I realized during my research that the publication of four separate journal articles on this theme, as originally planned, is not fit for purpose and decided to proceed with the publication of the four studies in the SSRN series of iCourts, and then to develop them into a book at the Max Planck Institute for Comparative Public Law and International Law. Second, I am editing the Research Handbook on the ICJ, following a contract with Elgar Publ.
