Protecting or Producing the International Community? International Courts and the Constitutive Turn in Community-Interest Adjudication

Glòria García Hernando

Double Degree in Law and Global Governance, Economics and legal order from ESADE. Exchange student at FGV. Incoming LLM in International Business Law.

I. Introduction

International law increasingly speaks in the name of the international community. Yet the community in whose name it speaks is rarely examined. Courts invoke humanity, collective interests, and universal values as though these concepts referred to a self-evident political reality. A community that simply exists, waiting to be protected. The assumption is mistaken and its entrenchment in the literature has concealed the most theoretically significant feature of the rise of community-interest adjudication.

The dominant account of that rise is a protective thesis. From Simma’s analysis of the transition from bilateralism to community interest (Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours 217) to Gattini’s reconstruction of actio popularis (Gattini, ‘Actio Popularis’ in Peters (ed), Max Planck Encyclopedia of International Procedural Law (OUP 2019) paras 6, 22, 67, 70), the argument runs consistently in one direction: international courts enforce obligations owed to the international community, thereby preserving collective values against the fragmenting logic of bilateral reciprocity. The thesis captures something real. But it presupposes what it needs to explain. Community interests do not possess an objective existence independent of interpretation. The protective thesis overlooks a prior question: how community interests become recognizable in the first place.

This article argues that international courts do not merely protect the preexisting international community. Through the interpretation of erga omnes obligations, the articulation of universal values, and the production of authoritative legal narratives through advisory jurisdiction, they participate in constructing the very community in whose name they claim to act. The most significant consequence of the rise of community-interest adjudication is accordingly not substantive but constitutive. And the legitimacy implications of that constitutive authority remain, this article contends, deeply under-theorized.

II. From Bilateralism to Community Interests

The emergence of community interests is commonly presented as one of the most significant normative developments in contemporary international law. Classical international law was largely structured around bilateral relationships between sovereign states. Legal obligations were conceived as reciprocal commitments, and responsibility depended upon the infringement of individual rights.

Simma famously challenged this understanding through his account of the transition from bilateralism to community interest. In his view, international law could no longer be understood exclusively through the logic of reciprocity and state consent (Simma (1994) 1–25). The proliferation of human rights obligations, the prohibition of genocide, and the principle of self-determination reflected the growing recognition that certain values deserved protection irrespective of whether a particular state had suffered direct injury. International law, in other words, had begun to move beyond the bilateral paradigm upon which its classical structure had been built.

This transformation was neither inevitable nor uncontested. The International Court of Justice’s (ICJ) judgment in South West Africa remains the clearest expression of the traditional bilateralist model (South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319). Rejecting the claims brought by Ethiopia and Liberia against South Africa, the ICJ denied that states could invoke responsibility in the absence of a specific legal interest and famously dismissed the possibility of an actio popularis in international law. The decision reflected a conception of the international legal order in which the protection of public interests remained subordinate to the existence of individualized legal injury. Collective values, however important politically, could not by themselves generate legal standing.

The doctrinal foundations of this position soon became increasingly difficult to sustain. Decolonization, the rise of international human rights law, and the growing prominence of norms regarded as fundamental to the international legal order exposed the limitations of a system organized exclusively around reciprocity. The turning point came with the Court’s dictum in Barcelona Traction (Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase, Judgment) [1970] ICJ Rep 3), which distinguished ordinary bilateral obligations from obligations owed erga omnes to the international community. For the first time, the Court explicitly recognized that certain legal interests transcend the concerns of individual states and belong to a broader collective sphere.

Much of the subsequent literature has interpreted this development as a normative achievement. Simma viewed it as evidence of the emergence of community interests within international law (Simma (1994)), while Gattini demonstrated how Article 48 of the Articles on State Responsibility (ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc A/56/10, art 48) effectively reopened the possibility of a functional equivalent to actio popularis (Gattini (2019) 1–22), by allowing states to invoke responsibility for obligations owed to the international community. The contemporary expansion of erga omnes and erga omnes partes litigation appears to confirm this broader shift away from bilateralism and towards the protection of collective values.

Yet the success of this narrative has obscured a deeper conceptual difficulty. Both Simma’s theory of community interests and Gattini’s analysis of actio popularis focus primarily on the existence and enforcement of collective values. They explain why certain interests deserve special protection and how international law has evolved beyond bilateral reciprocity. What remains largely unexplored, however, is the prior question of how community interests are identified in the first place. The recognition that an obligation is owed to the international community does not determine which interests qualify as collective or who has authority to identify them.

The transition from bilateralism to community interest therefore generated a new problem of authority. Under a bilateral model, legal interests could be identified by reference to reciprocal legal relationships between states. Under a community-interest model, by contrast, collective interests require interpretation. Someone must determine which values belong to the international community, which harms affect humanity, and who may legitimately invoke those interests before international institutions.

The rise of community interests thus did more than expand the substantive reach of international law. It created the need for institutions capable of authoritatively interpreting and applying those interests. The central issue is therefore no longer whether community interests exist. The more pressing question is who possesses the authority to define them. It is precisely within this space that international courts have acquired a new and increasingly significant role.

III. International Courts and the Construction of Community

If the transition from bilateralism to community interest created a new category of collective concerns, it also created a corresponding institutional question: who determines their meaning? Contemporary international law often assumes that international courts merely enforce community interests that already exist within the legal order. Yet this assumption overlooks a crucial feature of collective interests: unlike traditional bilateral rights, they rarely possess fixed or self-evident content. Their meaning depends upon interpretation.

Karen Alter’s work provides an important starting point for understanding this transformation (Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton UP 2014)). Challenging the traditional image of international courts as passive dispute-settlement bodies, Alter argues that contemporary international tribunals have become influential political actors whose authority derives from their ability to define the meaning of law, identify violations, and shape expectations within domestic and international politics.

This insight acquires particular significance in the context of community interests. Community interests are inherently open-ended and require institutional interpretation. Consequently, when international courts determine that a particular norm protects a collective interest, they are not merely applying existing law. They are simultaneously participating in the process through which that interest becomes legally recognizable.

The advisory jurisdiction of the ICJ illustrates this dynamic especially clearly (d’Argent, ‘Article 65’; Paulus, ‘Article 66’; Pellet Cot and Wittich, ‘Article 68’, all in Zimmermann and Tams (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019)). Unlike contentious proceedings, advisory opinions are not primarily designed to resolve disputes between parties. They frequently concern questions framed as matters of general significance for the international community and invite the Court to articulate broader understandings of legality, legitimacy, and collective responsibility. The advisory function therefore places the Court in a position that extends beyond traditional dispute settlement. Rather than merely resolving legal disagreements, the Court increasingly contributes to defining the normative framework through which the international legal order understands itself.

The Namibia Advisory Opinion provides a particularly revealing example (Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16, para 126). Formally, the Court was asked to assess the legal consequences of South Africa’s continued presence in Namibia despite Security Council resolutions declaring that presence unlawful. Yet the significance of the opinion extended far beyond the resolution of a specific legal dispute. By framing self-determination and opposition to apartheid as concerns of the international community, the Court contributed to transforming these principles from political aspirations into foundational values of the international legal order.

More importantly, the Court did not merely recognize an already established consensus. It helped consolidate and institutionalize it. The significance of Namibia therefore lies not only in what the Court decided, but in the way it contributed to defining the normative identity of the international legal order itself.

Seen from this perspective, international courts increasingly perform functions traditionally associated with public institutions. They determine which harms concern humanity, which values deserve special protection, and which actors may legitimately invoke collective interests. Their authority therefore extends beyond dispute settlement. It encompasses the production of legal meaning itself. This observation reveals an important limitation in much of the existing literature. Discussions of obligations erga omnes often assume that community interests pre-exist their judicial enforcement. Yet collective interests become operational only once institutions identify, interpret, and apply them. Courts do not create values ex nihilo, but neither do they merely reflect pre-existing consensus. Their authority lies precisely in transforming contested political claims into authoritative legal understandings.

The rise of community-interest adjudication has therefore transformed international courts into more than guardians of a pre-existing international community. Through their interpretation of collective obligations, their articulation of universal values, and their increasingly influential advisory function, they have become among the principal institutional sites through which the international community acquires legal meaning. The pattern is confirmed even in procedural contexts: Gattini’s survey of actio popularis doctrine reveals that the Court’s selective avoidance of erga omnes standing questions constitutes a form of constitutive silence no less significant than its affirmative pronouncements (Gattini (2019) 1–22). The question is no longer simply whether courts protect community interests. It is whether, through that very process, they also participate in constructing the community whose interests they claim to defend.

IV. Imagining the International Community

The argument developed thus far raises a question the protective thesis has never adequately confronted: if international courts determine what the international community values and who may invoke those interests, the community in whose name they act cannot simply be taken as given. It must be examined.

Benedict Anderson’s framework of imagined communities is instructive here not to explain nationalism, but to interrogate how the international community acquires normative coherence through institutional practice (Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (rev edn, Verso 1991)). Anderson’s central insight was not that communities are fictitious, but that they are socially constructed through shared practices of narration and representation. A community ‘is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion’ (Anderson (1991) 6). Community is produced, not discovered.

The international community invoked by contemporary courts precisely exhibits these characteristics. It has no common language, no unified public sphere, and no identifiable constituency capable of expressing collective preferences through institutional channels. Yet international legal discourse routinely speaks of humanity and universal values as if they referred to a coherent political subject with settled normative commitments. That coherence is not found; it is produced, and international courts are among the principal institutions through which that production occurs.

The mechanism operates at three levels. First, through the identification of community values: every time a court designates an obligation as owed erga omnes, it performs an authoritative act of normative classification that elevates certain values above others. Second, through the constitution of community membership: by determining who has standing to invoke community interests, courts implicitly define who belongs to the community as an active legal subject. Third, through the production of community narrative: advisory opinions generate a temporal dimension that gives the international community not merely values and members but a historical identity. The Namibia opinion did not simply apply a pre-existing norm of self-determination (Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16). It contributed to a narrative in which the international community had always been committed to decolonization. The Barcelona Traction dictum did not emerge from pre-existing consensus about erga omnes obligations (Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase, Judgment) [1970] ICJ Rep 3). It created the normative vocabulary through which subsequent consensus would have to be negotiated.

This analysis generates a recursive paradox that strikes at the foundations of community-interest adjudication. If courts derive their authority from the international community whose interests they protect, but that community is in significant part constituted through the exercise of that authority, then the legitimacy of the authority cannot be derived from the community without circularity.

In domestic constitutional orders, the equivalent paradox is managed through structured channels through which the community can revise the terms of its own constitution. At the international level, no equivalent mechanisms exist. States can resist advisory opinions, but resistance within a normative framework is not the same as democratic revision of the values that framework has already installed. The practical consequences are visible in the pattern of community-interest litigation itself. Simma’s recent analysis of intervention proceedings reveals a troubling asymmetry: in Ukraine v. Russia, only Western states intervened, while in South Africa v. Israel the interventions were far more varied. This discrepancy, which Simma himself acknowledges raises doubts about whether such intervention ‘truly aligns with the high value of safeguarding community interests’ (Simma, ‘When “Community Interest” Intervenes: Article 62 of the ICJ Statute Facing Obligations Erga Omnes (Partes)’ (2025) 24 Law and Practice of International Courts and Tribunals 1, 25), precisely illustrates the recursive paradox this article identifies: the universalism courts invoke is partly their own creation, and the political configurations that shape its invocation reveal the particularity concealed beneath its universalist surface. The community whose interests are invoked is universal in aspiration but particular in practice, and courts are implicated in that particularity because their own jurisprudence has helped define which values count as universal in the first place.

V. Conclusion

The argument developed in this article can be stated with precision. The protective thesis, dominant in the literature on erga omnes obligations, community-interest litigation, and the advisory jurisdiction of the ICJ, proceeds from an assumption that is simultaneously indispensable to the discourse and theoretically untenable: that the international community is a pre-political reality whose values and interests courts are called upon to identify and enforce. This assumption does not merely simplify a complex phenomenon. It conceals the most theoretically significant feature of what community-interest adjudication has become.

That feature is constitutive. When international courts designate an obligation as owed erga omnes, they do not describe a pre-existing normative landscape. They partially constitute it. When they invoke the interests of humanity to legitimize the exercise of advisory jurisdiction, they generate an image of a unified international community capable of having institutional interests, an image whose normative force depends on and reinforces the authority of the courts that produce it. When they situate their determinations within a developmental narrative of international law’s progressive communalization, they construct a community with a historical identity and a normative trajectory that no political process has authorized them to define.

The recursive paradox this generates is not a correctable institutional defect. It is structural. Courts derive authority from the international community while simultaneously helping to constitute it. The community legitimizes the court; the court constitutes the community. In domestic constitutional orders, analogous paradoxes are managed through constituent power, democratic revision, and ongoing political contestation. At the international level, none of these mechanisms exist in any form capable of subjecting the court’s constitutive determinations to genuine democratic accountability. States can resist. They cannot revise.

The legitimacy deficit this produces is not resolved by making international courts more transparent, more inclusive, or more procedurally rigorous, though each of these reforms has independent value. It is produced at a level deeper than procedure: in the gap between the public authority that community-interest adjudication exercises and the political authorization that would be required to legitimate it. Peters’ constitutionalism identifies the normative architecture of the emerging order with precision but cannot supply the constituent authority the architecture requires. Krisch’s pluralism correctly diagnoses the fragmentation that community discourse papers over but distributes the legitimacy deficit rather than resolving it (Krisch, ‘The Promise and Perils of Postnational Constitutionalism’ in Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 27). Koskenniemi’s critique of universalism is sharpened, not merely illustrated, by the constitutive account: if courts construct the community whose values they invoke, the hegemonic potential of community-interest discourse is more radical than his analysis suggests, because the universalism in question is partly the court’s own creation (Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP 2002)).

What remains, then, is not a call for institutional reform but a demand for intellectual honesty about what community-interest adjudication involves: the exercise of constitutive authority by institutions that have not been authorized to exercise it, in the name of a community they are themselves partly responsible for producing. The standards of legitimacy appropriate to that authority are significantly more demanding than the protective thesis acknowledges and the gap between those standards and current practice is significantly wider than the constitutionalizing literature admits.

If international courts increasingly speak in the name of the international community, who has the authority to determine what that community is?