Sull'uso della ragionevolezza da parte della Corte internazionale di giustizia come limite al potere discrezionale degli Stati

This study analyses the evolutionary role of reasonableness as a standard of judicial review of the discretionary powers of States in the case-law of the International Court of Justice. The first part focuses on the general function of reasonableness, by addressing, firstly, certain theoretical premises of this type of judicial review and, secondly, its conceptual meaning in comparison with the functionally-related notions of bona fide and abuse of law. Then, the paper explores the relevant case-law of the International Court of Justice and highlights that while, in the earlier judgements, the Court has followed a deferential approach, aimed at recognising a wide margin of appreciation to the States’ action, in the most recent judgements, it has developed a methodological approach, by reviewing the “necessity” and “proportionality” of the States’ measures in cases involving competing legal interests. In particular, the paper considers that the involvement of general interests in a certain dispute may explain why the Court has based on reasonableness a more structured and objective judicial control, while in disputes involving obligations of a reciprocal nature the rule of bona fide has been applied. Also, it argues that the evolutionary function of reasonableness may reflect the general trend toward the development of the rule of law in the international legal system.