The question’s simplicity may deceive readers into thinking that there is a simple answer to that question when, in reality, plenty of complexity is involved in the query. From the outset, it should be pointed out that the concept of an international dispute does not coincide with the idea of International Justice in the sense that:

International adjudicatior organs rule only international disputes, but international disputes are not ruled only by international adjudicators.

This assertion suggests that the concept of International Justice when viewed subjectively or through the lens of international bodies (or adjudicators), is more limited than the objective notion of an international dispute. Consequently, international adjudicators only have jurisdiction over international disputes and cannot consider a case unless it qualifies as such. Conversely, the idea that a domestic adjudicator could preside over an international dispute stands in contrast.

A dispute is constituted by: (a) relevant situation of fact or law, (b) subjects (parties to the dispute), (c) conflicting interests (something material or immaterial in that relevant situation on which parties disagree) and, finally, (d) legal nexus (that binds together the relevant situation of fact or law, its subjects and their conflicting interests). That concept is indifferently applicable to both domestic and international disputes.

An international dispute will exist when internationality reflects on one of that dispute´s specific constituent elements, the legal nexus; once that occurs, it can be said that the relevant situation (of fact or law), its concerned subjects, and their ensuing conflicting interests are connected by an international legal nexus. The binding power of the international legal nexus does not emanate from the juridical system of a specific State but rather from the overarching legal framework of International Law.

Therefore, the legal nexus is the fundamental element in constructing the concept of international disputes. And, as aforementioned, an international dispute may be the object of the judgment of domestic courts, not being exclusive of international courts.

In 2022, when a District Judge in the Hague ruled on the MH17 shooting, the common idea was that it was an international judgment; indeed, it could be regarded as an international judgment as far as the dispute ruled by that Neerlandese Judge is an international one, but not in the sense that such a Cort was an international one.

International Court is a concept reserved exclusively for adjudicators whose existence is derived solely from that all-embrancing law, the “law between the Sovereigns” or the International Law.

The Court ruling on the MH17 case could hold the case due to the existence of International Law, which attributed competence to it, but that Court did not owe its existence to International Law but to the domestic Dutch legal system.

Let´s illustrate the idea with a few examples. If a Japanese citizen driving a car in France hits a German walker, could that situation emerge as an international dispute? No, as the legal nexus is domestic, inherent to the French Legal System. But what if the driver is a Japanese ambassador to the French State in Paris? The situation is not governed by the French or Japanese Legal System but by International Law, specifically the 1961 Vienna Convention on Diplomatic Relations. If an Argentine consumer rents a property through Airbnb in Italy, a supervening issue will generate a domestic dispute under Argentine or Italian law but not International Law since that situation is not grounded in the latter system. If a Brazilian supplier sells soybeans to a Nigerian trading company, and the buyer does not pay in full, such a situation characterizes an international dispute as long as that operation must have been carried out under some international commercial contract underpinned by an international treaty to which Brazil and Nigeria are signatories.

The Rainbow Warrior Arbitration between Greenpeace and France

Journal of International Arbitration , Volume 9 (1) – Mar 1, 1992

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