Power, Environmental Principles and the International Court of Justice

This article discusses the role and function of environmental principles in terms of how they interplay with or constitute power in the context of the ICJ developing and delivering its written judgments. The interaction of litigants with each other and the bench of the ICJ is important not just for conveying facts and positions on the law. It shapes how the Court itself learns what their views are on legal issues. The idea that the process of litigation can generate common knowledge which is shared amongst the judges of the bench and potentially states who might appear before them as well as the future constituency of the ICJ is itself the kind of collective social learning that is the basis of the discussion in this article. It argues that the focus on social learning highlights the significant role that environment principles can play in decisions of the ICJ, notwithstanding their infrequent and direct use in the judgment of the Court in determining the legal position of the parties before them. The focus on social learning suggests that discussions of the rule of law ignore the power that the ICJ has to shape disputes before it. It also misses the potential of certain kinds of norms to influence disputes and resolution of them before powerful institutions like the ICJ.