CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ EXISTENCE OF A DISPUTE IN FRONT OF THE ICJ Currently, the jurisdiction of the ICJ is thus not compulsory and is subjected to the consent of the States. And secondly, even if States have for example declared that they recognized the Court’s jurisdiction, there needs to be evidence of dispute existing between the involved parties. “[T] he dispute requirement serves to protect States against having to answer frivolous claims brought against them. It should not be overlooked that conducting proceedings before the ICJ entails considerable expenditures. ” 15 Leaving aside the fact that this problem could be solved by a rule embedding the loser- pays the other party’s (as well as its own) expenditures principle, the requirement of the existence of a dispute may be a critical point in delivering justice. The ICJ (taking up the PCIJ case-law) developed certain case-law concerning the existence of a dispute. But it seems that the case-law has been substantially modified by the above- mentioned judgments from 2016. The ICJ bases its argument on the wording of article 36 (2) of the Statute that mentions jurisdiction over legal disputes and so requires existence of any legal dispute to be established as a condition for the jurisdiction. Neither the Statute nor the Rules of the Court in any special way identify what a dispute is, i.e. what the States need to do prior (?) to the proceedings, whether negotiations or any direct contact between the organs of those States are required. Under a purely procedural conception it would suffice for the applicant simply to lodge a complaint against the respondent and so to establish a dispute. On the other hand, a purely substantive conception would require a proof of two officials of each of the States in the case to have met and declared explicitly their States’ disagreement as to the legal issue that would later turn into the dispute core. Due to the above-mentioned, the existence of a legal dispute is a requirement for the jurisdiction of the ICJ based on the optional clause under article 36(2) of the Statute and not under the other means of establishing the Court’s jurisdiction. However, where the Court’s jurisdiction is based on a compromisory clause present in a treaty in question, the requirement of existence of legal dispute will quite probably apply as well, since the compromisory clauses usually refer to the ICJ’s jurisdiction in a situation of a dispute. 16 This interpretation is supported by the fact that the Court underscores that previous negotiations are not required where the jurisdiction is established under art. 36 (2) of the Statute, while not mentioning it when discussing other requirements (see further). In cases of special agreements where both parties to the proceedings adopted an international treaty (a compromis), the existence of dispute is clear, otherwise they would not negotiate the compromise. Existence of the dispute requirements The PCIJ has delivered a definition of a dispute in the Mavrommatis judgment: “ A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. ” 17 The Court has repeatedly referred to the Mavrommatis principle; after all it did so again in the Marshall Islands v. UK case as well. This definition does not however in any 15 TOMUSCHAT, Ch., Article 36. In: ZIMMERMANN, A., TOMUSCHAT, Ch., OELLERS-FRAHM, K. (ed.), The Statute of the International Court of Justice: A Commentary . Oxford: Oxford University Press, 2006, p. 598. 16 See for example art. 30 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, concluded on December 10, 1984, entered into force on June 26, 1987; and article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, concluded on March 7, 1966, entered into force on January 4, 1969. 17 PCIJ, The Mavrommatis Palestine Concessions, Judgment of August 30, 1924, Series A – No. 2, p. 11. 3.

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