The Principle of res judicata before the International Court of Justice: In the Midst of Comradeship and Divorce between International Tribunals

Abstract

The current predicament of res judicata reads as follows: Unquestioned recognition but unpredictable application. The ICJ has continuously pondered over this principle, always acknowledging it under very similar terms, though enforcement has followed diverse and rather obscure criteria. This article strongly favours the finality of judicial disputes and argues that the ICJ has been unable to define the precise scope of res judicata, thereby allowing considerable space for interpretation and tolerating re-litigation. This lack of clarity will likely become more acute in cases allegedly settled in a different judicial forum. Indeed, the Court's broad subject-matter jurisdiction, make it the perfect venue to pursue a second decision. In light of the foregoing, this article proposes general guidelines for the ICJ to predictably carry out the triple identity test-persona, petitum and causa petendi- A nd effectively determine whether an issue was disposed of by a previous ruling, hoping that comradeship will prevail.