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The Potential of Public Interest Litigation in International Law

3 March 2021 - 31 December 2021

PI/s in Exeter: Dr Justine Bendel

Research partners: Dr Yusra Suedi

Funding awarded: £ 9,900

Sponsor(s): GenEx Joint Seed Funding 2021

Project webpage(s)

The Potential of Public Interest Litigation in International Law

About the research

International courts and tribunals play a pivotal role in the international legal order. They provide for a peaceful alternative for the settlement of disputes, and they interpret and uphold the law. However, the political and legal landscape has evolved drastically since their creation – especially in the last thirty years. One aspect of this evolution is the growing interest in using international courts in the public interest. But this comes with a set of challenges.

First, the scope and subject matter of the disputes brought before international courts and tribunals are changing. Indeed, many international courts and tribunals were initially designed to settle disputes arising between two states, with defined and attributable harms. However, some issues raised (or that could be raised) before international courts today challenge our traditional understanding of international adjudication. This traditional understanding of international disputes leaves out disputes over global commons (such as the deep seabed and space) and global goods (such as health), or disputes where the harm is done not to a single state, but to the international community at large (such as climate change). New types of disputes are emerging, calling into question the role of international courts within the international legal order.

Second, these new disputes have an impact at the procedural level. Notably, many nonstate actors have taken increasing interest in responding to international issues mentioned above, and other issues such as grave human rights violations or foreign direct investment by pursuing litigation on the international stage, upon the grounds that such matters are of the public interest. This has led to demands for procedural inclusion and transparency before international courts and tribunals. Procedural concepts such as those of jurisdiction and standing are questioned and reinterpreted in light of the push for public interest litigation. More generally, who should be allowed to access such courts, and who should benefit from such litigation?

Therefore, one of the current challenges faced by international courts and tribunals today is their adaptation and response to such demands, which are increasing alongside growing global crises. Against this background, the aim of this workshop is to address the following questions: who is the ‘public’ in public interest litigation? To what degree can international courts and tribunals respond to new needs in international society in order to successfully address disputes based on the public interest? Can public interest litigation before international courts and tribunals be a solution for today’s global problems? Is there a potential for public interest litigation before such fora to be developed? These questions are at the heart of this project, and will materialise in the organisation of a workshop, as well as an edited collection.