Os contornos legais do poder de decidir: uma análise (crítica) sobre a Corte Internacional de Justiça e a sua Jurisdição

Abstract

The International Court of Justice is the central judicial body of the United Nations and its main objective is the solution of legal disputes between States. The Court has the potential to adjudicate on a wide range of issues and, consequently, to assist in the development of international law in many areas. However, for the merits of a dispute to be decided by the Court, it must first have jurisdiction over that case. Therefore, the main objective of this monograph is to understand how the Court applies and interprets the rules relating to its jurisdiction, critically reflecting on possible inconsistencies that are perceived in this process through the analysis of its sentences since its elaboration. To this end, the hypothesis is that, for political reasons, the Court would be inconsistent in handling issues linked to its jurisdiction, as it fails to analyze the merits of certain cases depending on their theme or their parts. This discussion is done by dividing the jurisdiction in two: the foundational jurisdiction and the specific jurisdiction, each one discussed in a specific chapter of this monograph. Therefore, in the first chapter, the foundational jurisdiction is analyzed, whose role is to govern issues relating to statutory norms, such as those regarding the access to the Court and the existence of a legal controversy. In the second chapter, the specific jurisdiction is studied, which deals with the specific consent of the States for a concrete case to be analyzed by the Court. To carry out the critical reflection, Third World Approaches to International Law (TWAIL) are used. As for the methodology, this monograph will not merely adopt the descriptive-analytical method, but also the historical-critical one regarding the analysis of the objectives. Furthermore, a dialectic approach and documentary and bibliographical research techniques will be used. In the end, it can be concluded that there are inconsistencies in the handling employed by the Court in relation to its jurisdiction and that, in fact, it is possible to gather evidence that such inconsistencies are justified by extralegal factors, although these are more present in cases that discuss foundational jurisdiction rather than specific jurisdiction.