How the Awareness Criterion for Establishment of Dispute is Antithetical to Judicial Economy

The International Court of Justice recently in the case concerning the Negotiations relating to Cessation of the Nuclear Arms Race and Nuclear Disarmament ruled that it lacked the necessary jurisdiction, due to the absence of a ‘legal dispute’ between the parties. The Republic of Marshall Islands had sued the nuclear world powers (the application was admitted only against the UK, India and Pakistan) for non-compliance with the treaty obligation and customary law obligation to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament and cessation of the nuclear arm race at an early date. It is the first time in the history of the ICJ that it has refused jurisdiction on the grounds of the absence of a dispute, underlining a further move towards increasing formalism and positivism of the international court.

The court has defined legal dispute as “a disagreement on the point of law or fact, a conflict of legal views or of interests” between the contending parties. The Republic of Marshall Islands rooted the existence of a dispute between the parties in the “positive opposition” by the Respondent States in the present proceedings, and their engagement in a conduct of “quantities build-up” and “qualitative improvement” of their nuclear arsenal.

However, to the dismay of much of the international community, the majority in this case adduced an additional subjective limb of the ‘awareness’ of the Respondent regarding the claims of the Applicant, holding it quintessential to establish a legal dispute between the parties. Paragraph 38 of the judgment states:

“a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant”.

The introduction of the ‘awareness’ criterion for the establishment of a dispute not only goes against the jurisprudential constante of the Court to adjudicate the existence of a dispute on an objective basis, but also severely undermines judicial economy and sound administration of justice. The formalistic requirement of ‘awareness’ can be met by merely instituting a fresh application on the same grounds against the Respondent, who would then be aware of the dispute and contention of the Applicant as a result of the previous dismissed suit.

The court has adopted a highly accommodating approach to avoid situations of this nature in the past. The PCIJ, facing a similar situation in the Certain Properties case, where a formal defect could be cured by merely reinstating the case, ruled in favor of the existence of a dispute. The court mentioned:

“the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the Party concerned.”

The ICJ reiterated a similar opinion in the Military and Paramilitary Activities case, when it stated in paragraph 83:

“It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do.”

Similarly, in the Genocide (Croatia v. Serbia) case where the issue was that Serbia had become party to the ICJ Statute only after the proceedings had been instituted, the court ruled that it did not affect jurisdiction because the claimant could file a fresh suit anytime in the future. Paragraph 85 of the judgment stated:

“What matters is that, at the latest by the date when the Court decides on its jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings in which the initially unmet condition would be fulfilled.”

Thus, it is now an established principle of the International Court that where the Applicant State can file fresh proceedings to fulfill an earlier unmet condition of a formal requirement, it is against the interests of sound administration of justice to ask the parties to do so. This opinion has also been elicited by a number of judges in the present case – both ruling in favor and against the existence of a dispute. Vice President Yusuf, Judge Owada, Judge Xue, Judge Robinson and Judge Tomka in their opinions have raised concerns about the formalistic attitude of the court, highlighting the fact that it is not in the interest of the sound administration of justice to compel the Applicant State to initiate fresh proceedings, and further opined that it was preferable, save in special circumstances, to conclude that the condition had been fulfilled from that point on.

In the instant matter, assuming that the dispute was indeed non-existent between the contending parties on the date of institution of proceedings before the Court, such a dispute has existed since April 2014, because of the positive disagreement of the Applicant and Respondent States in relation to the breach of the relevant international obligations. A new legal situation might therefore arise due to the present proceedings, whereby the existence of a dispute could be said to have been crystallized by this case, and which would not suffer from the defect of ‘awareness’. This approach is bound to lead to a “needless proliferation of proceedings” or what Judge Crawford in his dissent termed a “circularity of procedure.”