Legitimacy and the international court of justice: An analysis from a third world approaches to international law perspective

Abstract

The International Court of Justice (ICJ) has had a number of cases and advisory opinion requests concerning nuclear weapons come before it. These have often been complex and controversial, and raise a number of questions about the operation of the ICJ. One specific question concerns the legitimacy of the Court, particularly in the context of these cases. Accordingly this paper explores the legitimacy of these cases. In order to conduct an analysis of legitimacy, this paper uses the Third World Approaches to International Law (TWAIL) approach. The recent bringing of a nuclear weapons case to the ICJ by the Marshall Islands, a developing nation, suggests that this approach is an appropriate approach. This paper argues that current mainstream ideas of legitimacy lack important considerations that a TWAIL approach would include. Through the process of considering legitimacy in international law and examining TWAIL scholarship, this paper constructs and applies a proposed TWAIL approach to legitimacy in international law to these nuclear weapons cases. This paper concludes that, according to the proposed TWAIL approach, these nuclear weapons cases overwhelming fail to adhere to the considerations put forward and that this has implications on how TWAIL scholarship views the legitimacy of the ICJ.