CYIL vol. 8 (2017)

MILAN LIPOVSKÝ CYIL 8 ȍ2017Ȏ way specify what the evidence of existence of a dispute is. In the Nuclear Arms / Nuclear Disarmament Judgment from 2016, the ICJ went on by pointing to the previous case-law and described the dispute requirements as following: – The claim must have been opposed by the other party – The parties must be of clearly opposing views regarding a certain international obligation – The dispute exists at the time of submission of the application – In cases based on art. 36 (2) of the Statute prior negotiations are not required but in fact play a key role in proving the disagreement – The disagreement does not need to be expressis verbis stated; and – Newly and most importantly, the Court added a threshold requirement not present in the previous case-law: “ a dispute exists when it is demonstrated, on the basis of evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant ”. 18 One may disagree with the system where a dispute’s existence needs to be proven by anything more than by submitting an application, but since it simply is so and the ICJ has repeatedly required evidence of a dispute, it needs to be respected. In my opinion, however, even these requirements were recently interpreted in too strict a way due to the last above- mentioned point. 3.1 Positive opposition The mere claim of existence of a dispute is insufficient to establish jurisdiction, as is its denial insufficient to evade it. 19 Positive opposition is needed, and that is quite strongly related to what the respondent had to know/be aware of. That is, however, dealt with further below. Suffice it to say here that the case-law of the ICJ until now was more flexible and required the following: “There is a consistent course of distinct conducts by the two contending parties. This is followed by a claim, as to the substance of the matter at issue. This is sufficient for a dispute to crystallize; nothing more is required.” 20 The Court requires positive opposition in order to establish that there was a dispute. On the other hand, “ there is no general requirement of prior notice of the applicant State’s intention to initiate proceedings before the ICJ .” 21 And so the opposing views mean in general conduct/opinion of a mutually incompatible nature. Whether they need to be known to the respondent is another issue. 3.2 Time of existence of a dispute and the time of submission of the application The moment when all the conditions of jurisdiction need to be fulfilled plays a crucial role. And so one of the most interesting requirements is the third one, existence of the dispute 18 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, p. 17-18. 19 ICJ, South West Africa Cases ( Ethiopia v. South Africa, Liberia v. South Africa ), Preliminary Objections, Judgment of December 21, 1962, ICJ Reports 1962 p 319, p. 328. 20 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, Dissenting opinion of Judge Cancado Trindade, p. 8. 21 Ibid. , p. 6.

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