CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ EXISTENCE OF A DISPUTE IN FRONT OF THE ICJ at the time of submission. As was criticized above, one could understand that the existence of a dispute is proven by submitting an application. However, the Court has made it clear that this may not be so, because “ if the Court had jurisdiction with regard to disputes resulting from exchanges in the proceedings before it, a respondent would be deprived of the opportunity to react before the institution of the proceedings to the claim made against its own conduct. Furthermore, the rule that the dispute must in principle exist prior to the filling of the application would be subverted .” 22 Leaving aside the second sentence, which works as a circular argument: a dispute exists if it existed before the application was submitted, otherwise it would not exist; another argument in favour of requiring the existence of a dispute before the application was submitted may be implied – the procedural economy. If the dispute must have been established before the proceedings commenced, it would give the respondent the chance to rectify the situation and not burden the Court. That is certainly an interesting argument, though it is not clear whether that is what the Court had in mind. On the other hand, the Court has shown flexibility as to the temporal issues before. If the conditions for existence of a dispute were not fulfilled before submission of an application but such error was rectified later, the Court proceeded to the merits. 23 It is hard to understand the formalistic approach then. 3.3 New threshold While many of the Marshall Islands arguments as to the existence of a dispute (regarding in this case fulfilling obligations under article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons 24 ) were doomed from the beginning because of not fulfilling the above- described test (excluding the threshold), there was one particularly strong argument. The ICJ, however, still refused it and did so based on the most problematic requirement. The Marshall Islands claimed that the dispute existed among others due to the statement at the Nayarit conference of February 13, 2014 where their representative stated that “ States possessing nuclear arsenals are failing to fulfil their legal obligations’ under Article VI of the NPT and customary international law. ” 25 The ICJ refused the argument because the UK representation was not present at the conference and its topic was not directed at nuclear disarmament but rather to humanitarian aspects of the nuclear weapons. Most of all, the statement is not referring to the UK in particular. Without the last requirement described above (threshold of objective awareness of positive opposition to applicant views), the Marshall Islands were likely to succeed in the preliminary objections proceedings. And it is indeed the “objective awareness requirement” 26 that is subject to considerable criticism. 22 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, par. 43. 23 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Croatia v. Serbia ), Judgment of November 18, 2008, ICJ Reports 2008 p. 412, where Serbia was not a UN member at the moment of submission of the application but later became one. 24 Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 10485, concluded on July 1, 1968, entered into force on March 5, 1970. 25 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. 21. 26 As it was called by Judge Crawford in his dissent opinion: 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 Crawford, p. 1.

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