The Court and the Other: A Postcolonial study Of State Accessibility to the International Court of Justice

Abstract

The International Court of Justice has a history of aligning itself with the decolonisation movement, as reflected in several of its advisory opinions. Simultaneously, the Court has rendered contentious judgments that have been criticised as disproportionately disadvantageous to former colonised states. This thesis analyses the disparity in access to the Court between former colonised and coloniser states by applying postcolonialism as an analytical lens to the Court’s praxis. The four main postcolonial authors used are Frantz Fanon, Edward W. Said, Antony Anghie and B.S. Chimni. Their theories are applied to the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 advisory opinion and the Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament cases. In its first part, the analysis finds that the Chagos Archipelago opinion demonstrates the postcolonial critique that international law can provide formal equality but tends to perpetuate practical inequality. In its second part, the analysis finds that the Marshall Islands cases demonstrate an instance where the Court hides behind arbitrarily strict formalism to appease the respondent states. The thesis concludes that the division of the world into sovereign states is historically rooted in the Western colonial confrontation and therefore should not be viewed as eternal.