CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ EXISTENCE OF A DISPUTE IN FRONT OF THE ICJ Court has thus most recently adopted the Rules of the Court on April 14, 1978 (hereinafter referred to as “the Rules”). There are two kinds of proceedings that the ICJ has jurisdiction over, contentious proceedings and advisory proceedings. Each has a different purpose. While the contentious proceedings were created in order to let the Court “ decide in accordance with international law such disputes as are submitted to it ” 3 by States, the primary purpose of the advisory proceedings was for the Court to “ give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. ” 4 The focus of this article is a particular aspect of the contentious proceedings. And so any reference to the proceedings in the following text will be directed at the contentious proceedings. One needs to bear in mind that the proceedings in front of the ICJ were created as a compromise between many parties, and thus it reflects the procedural legal instruments of many systems. So it is not surprising that controversies may arise quite regularly. Dispute In October 2016, the Court was deciding upon obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament. Since nuclear disarmament is an issue concerning the whole of mankind, the cases have drawn considerable attention and were a sequel of chances for the ICJ to pronounce its opinions on this matter after the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion 5 and the Nuclear Tests Judgment. 6 Unfortunately the legal situation evolved in an unsatisfactory way and the cases have not proceeded to the merits. There were three relevant proceedings between the Marshall Islands and the United Kingdom, 7 Pakistan 8 and India. 9 In all three cases the preliminary objection against the jurisdiction of the ICJ raised by the respondent that there was no dispute between the parties was upheld by the Court. In the proceedings against the UK, the vote was equal (8 judges voting in favour and 8 against) so the President’s cast vote decided. In the one against India, it was 9 votes in favour and 7 against, and in the one against Pakistan 9 in favour and 7 against. It is not without interest that the United Kingdom, Pakistan and India were not the only States that the Marshall Islands originally addressed (other applications were lodged against China, North Korea, France, Israel, Russia and the USA), but they were the only ones that the Court included into the general list since the other States had not accepted the Court’s jurisdiction and have not positively responded to the invitation to accept it for this case. 3 Statute of the ICJ, art. 38(1). 4 Statute of the ICJ, art. 65(1). 5 ICJ, Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, Advisory Opinion, ICJ Reports 1995 p. 3. 6 ICJ, Nuclear Tests ( New Zealand v. France ), Judgment, ICJ Reports 1974 p 457 and ICJ, Nuclear Tests ( Australia v. France ), Judgment, ICJ Reports 1974 p. 253. 7 ICJ, Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament ( Marshall Islands v. United Kingdom ), Judgment of October 5, 2016. 8 ICJ, Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, ( Marshall Islands v. Pakistan ), Judgment of October 5, 2016. 9 ICJ, Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, ( Marshall Islands v. India ), Judgment of October 5, 2016. 2.

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