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Oil Platforms: Lessons of Dissensus

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image of Nordic Journal of International Law

The recent judgment of the International Court of Justice in the Case Concerning the Oil Platforms ('Oil Platforms') is a fascinating and confusing mix of formal consensus and substantive dissensus. By fourteen votes to two, the Court dismissed both the United States defence and Iran's substantive claim in the case. Yet the Court's nearly complete unanimity is belied by a considerable substantive disagreement on the reasoning leading to this outcome, as reflected in the numerous separate and dissenting opinions appended to the judgment. An analysis of these opinions reveals that the disagreement within the Court cannot be considered simply a reflection of varying judicial appreciations of law and fact; it reveals a fundamental, even philosophical disagreement relating to the very function of the Court: Is the principal function of the Court the adjudication of claims brought by States, or the settlement of disputes between States? The fundamental disagreement among the Judges on this issue seems a reflection of their training and background – between Judges trained in the common law tradition and those hailing from the civil law or similar more policy-oriented backgrounds. Apart from the jurisprudential disagreement relating to the function of the Court, the judgment also raises important issues of substantive international law, in particular those relating to the relationship between the law of peace and the law of armed conflict. The judgment testifies to the continuing validity of this distinction, despite the many attempts of international legal scholarship to move beyond this distinction to a more enlightened era of international relations.


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