In international adjudication, proceedings are typically split into distinct phases. The merits phase is the stage at which a court or tribunal examines the substantive arguments of the parties and determines whether the alleged conduct actually violated international law. It follows—and is conceptually separate from—the preliminary objections phase, which deals with whether the tribunal has jurisdiction and whether the application is admissible.
At the International Court of Justice (ICJ), this bifurcation is governed by the Court's Rules of Procedure. If a respondent state files preliminary objections, the proceedings on the merits are suspended until the Court rules on those objections. Only if jurisdiction is upheld does the case move to the merits, where the parties submit detailed written pleadings (memorial, counter-memorial, reply, rejoinder) and present oral arguments on the substance.
Key features of the merits phase typically include:
- Evidentiary assessment — the tribunal weighs documentary evidence, witness and expert testimony, and may order site visits or independent expert reports.
- Application of substantive law — treaties, customary international law, and general principles are applied to the established facts.
- Determination of state responsibility — drawing on the ILC Articles on State Responsibility (2001), the tribunal decides whether an internationally wrongful act occurred and what reparations, if any, are owed.
The same structural distinction appears in other fora: WTO panel proceedings, investor-state arbitration under ICSID, the International Tribunal for the Law of the Sea (ITLOS), and human rights courts such as the European and Inter-American Courts of Human Rights all distinguish admissibility from merits.
A judgment on the merits is generally final and binding on the parties. At the ICJ, under Article 60 of the Statute, such judgments are without appeal, though parties may request interpretation or, under Article 61, revision based on newly discovered facts. Reaching the merits is significant: many high-profile cases are dismissed at the jurisdictional stage and never produce a substantive ruling.
Example
In its 2007 merits judgment in *Bosnia and Herzegovina v. Serbia and Montenegro*, the ICJ ruled that Serbia had not committed genocide but had violated its obligation under the Genocide Convention to prevent the Srebrenica massacre.
Frequently asked questions
Preliminary objections address whether the tribunal can hear the case (jurisdiction) and whether the claim is properly brought (admissibility). The merits phase addresses whether the substantive legal claims are well-founded.
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