CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ EXISTENCE OF A DISPUTE IN FRONT OF THE ICJ the dispute must be specifically indicated in the application. It is not surprising that there may occur legal battles as to the scope of the dispute, and so the Court has approached this problem very flexibly when it stated that “ it may happen that uncertainties or disagreements arise with regard to the real subject of the dispute with which the Court has been seised […] the Court cannot be restricted to a consideration of the terms of the Application alone nor, more generally, can it regard itself as bound by the claims of the Applicant .” 32 As such, the Court has shown a vast amount of flexibility as to the determination of the scope of the dispute and yet refuses to adopt the same measure as to the existence of a dispute. It is true that existence of a dispute and its scope are two different aspects. On the other hand, should the Parties completely miss each other with their conceptions of the scope of dispute, its existence would surely be put in question as well. Conclusion The Court has shown a considerable amount of flexibility as to the existence of a dispute requirement in its previous case law and the case law of its predecessor, the Permanent Court of International Justice. For example it accepted applications that were not fulfilling the conditions of existence of a dispute at the moment the applications were submitted to the Court, it assumed the power to objectively state the scope of the dispute despite what the parties specifically claimed etc. However, recently it changed its attitude and added a specific threshold requirement, the one that Judge Crawford, in his dissenting opinion, called the objective awareness requirement. By doing so the Court has significantly altered its approach towards the previously flexible conditions of filing and application in contentious proceedings. Since the threshold would be fulfilled by a simple meeting of representatives of the opposing parties where they would express opposing views, the threshold of objective awareness seems overly formalistic and in contrast to procedural economy. The judgment was met with strong opposition from the judges themselves and will most likely be a subject for further discussions not only within the International Court of Justice. 4.

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32 Ibid. par. 29.