CYIL vol. 8 (2017)

MILAN LIPOVSKÝ CYIL 8 ȍ2017Ȏ To establish the objective awareness requirement, the Court relies on two of its previous judgments. One of them concluded the proceedings in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination 27 . Jurisdiction of the Court in this particular case was, however, based on the already above- mentioned article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, which specifically requires previous negotiations and as such may not be used as an objective awareness precedent. The other judgment the Court relied on is actually formulated in an opposite way. The Court did not reject its jurisdiction because the respondent was in fact aware of the dispute and it was not stated that the respondent’s not being aware of it would lead to a no jurisdiction judgment. 28 The objective awareness threshold is clearly a very disputable concept that the Court evolved in 2016 (likely both in the nuclear disarmament cases and potentially in the Caribbean Sea dispute). Should, however, the Court’s view that the respondent needs to be aware of the opposition be accepted as reasonable, it still went too far in this particular case. There are a limited number of nuclear weapons possessing states, there are a limited number of nuclear weapons possessing states that are parties to the Non-Proliferation Treaty, the speech that the Marshall Islands’ representative gave at the Nayarit conference was directed at states possessing nuclear arsenals and the conference itself was focused on nuclear weapons. The opposing view was clearly established (unless the respondents would in advance admit violating international law), it was done so prior to the application, and there is such a limited number of nuclear weapons states that if they did not pay attention to such a conference, it can only be added to their own guilt. Judges Cancado Trindade and Crawford expressed similar concerns in their dissenting opinions. 29 The actually most notable and disappointing fact about the application of the objective awareness threshold to Marshall Islands is that though the UK was not present at the conference under discussion, both Pakistan and India were and yet the Court applied the objective awareness threshold to their cases as well. 30 3.4 Scope of the dispute It is the Court that is empowered to objective determination of the existence of a dispute, and so even if the Court is satisfied that there actually exists a dispute between the Parties, the second phase might create another problem. And that is the scope of the dispute. It might as well occur that neither party “ denies that there exists a dispute between them ” [but each]” characterizes the dispute differently. ” 31 Under article 40(1) of the Statute the subject of 27 ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination ( Georgia v. Russian Federation ), Preliminary Objections, Judgment of April 1, 2011. 28 ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea ( Nicaragua v. Colombia ), Preliminary Objections, Judgment of March 17, 2016, para 73. 29 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. 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, Dissenting opinion of Judge Crawford, p. 8. 30 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. 9. 31 Fisheries Jurisdiction ( Spain v. Canada ), Jurisdiction of the Court, Judgment of December 4, 1998, ICJ Reports 1998, p. 432; par. 23.

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