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The Nuclear Disarmament Cases: A New Formalism for the ICJ

In this article, Helen Peden (LLM in International Law) discusses the  recent Nuclear Disarmament judgments of the International Court of Justice, which mark the first dismissal of an applicant State for the non-existence of a dispute. The Court's introduction of a stricter test for jurisdiction may indicate a move to formalism for the ICJ.
 

The Nuclear Disarmament Cases: A New Formalism for the ICJ

Written by Helen Peden, LLM in International Law

 

Introduction

The historical approach to ascertaining a legal “dispute” in the World Court has merited fresh assessment since its landmark Nuclear Disarmament[1] judgements of October 2016.  Both in the Permanent Court of International Justice (PCIJ) and in its successor, the International Court of Justice (ICJ), the existence of a “dispute” has long been the first contemplation of jurisdiction. Of crucial importance where the Court is seised through optional or compromissory clause, the PCIJ in its Mavrommatis judgment of 1924[2] adopted a broad understanding of the term as a “disagreement on a point of law or fact, a conflict of legal views or interests between two persons”.[3]

Thus, the enduring legacy since Mavrommatis has been a malleable jurisdictional threshold, requiring minimal formality in satisfaction of its test. Described as “the Alpha”[4] dispute definition, its broad base for jurisdiction has, however, required refinement during the ensuing ninety-two years. The series of successive PCIJ and ICJ judgements which have contemplated and added to the Mavrommatis formula both enhance and preserve a permissive access to “the guardian of legality for the international community”.[5]

However, the survival of the Mavrommatis ethos has been met with recent contention in the trio of cases brought by the Marshall Islands against India, Pakistan and the UK.[6] The cases’ dismissal at Preliminary Objections mark the first fatality for an applicant state due to the non-existence of a dispute. In their myriad of separate and dissenting opinions, the threshold test of Mavrommatis and its subsequent jurisprudence constante split the ICJ judges, casting doubt over the Majority’s findings and indicating a wider dichotomy between the World Court as a venue of first resort and the move towards a more formalistic legal space. This assessment will contemplate the Nuclear Disarmament cases’ significance as the potential moment that the ICJ “discards this tradition of flexibility”.[7]


Mavrommatis and Beyond

Mavrommatis donates the inaugural “dispute” definition. Whilst formulated to provide for the particulars of that case, the PCIJ definition gained utility in its breadth. The jurisdictional threshold contemplated by the Court in 1924 valued the ease of an applicant’s access in overcoming it. The definition’s inclusion of “law or fact”, “legal views or interests” and the description of objects simply as “persons” represents its scope, approximate to an English dictionary definition rather than a prescriptive legal test. The Court’s informal approach can be traced throughout, stating that it does not consider itself “bound to attach to matters of form the same degree of importance which they might possess in municipal law”.[8] It finds the mere fact that the states are party to the case as persuasive in finding a dispute between them.[9]

Far from a singular notion, this preference for flexibility prevailed in the judgements which followed, both in the PCIJ and its successor. The trend’s importance lies in its preservation of a broad base for jurisdiction, permitting a dispute in substance if not form[10] and reserving the matter as for “objective determination” by the Court.[11]

Nevertheless, whilst Mavrommatis has remained the “appropriate starting point”,[12] subsequent jurisprudence has added to its basic “dispute” definition. Such evolution has endeavoured to devise a more workable test, the most significant contribution being the need for a “positive opposition” of views by the parties in the South-West Africa Cases of 1962.[13]   Indeed, the “positive opposition” requirement has borne necessity in ensuring that there are “readily identifiable”[14] issues to be resolved by the Court and, as such, is uncontentious; a trait confirmed by its easy satisfaction in practice.[15] The Tunisia-Libya Continental Shelf Case (1985) stated that no formality in the presentation of opposition was required[16] and the 1990s saw the imputation of “positive opposition” by virtue of the Respondent’s denial of the Applicant’s complaint.[17] As such, the Court ensured that no notice of litigation nor negotiation need precede the finding of a dispute.

This commitment to an adaptable jurisdiction, as attested in Mavrommatis, is perhaps telling of the unique international juridical space which the Court inhabits. Whilst its function is legally pronounced, the subject matter of its focus is inherently political, often requiring the clarification of public international law. As such, the Court’s informality in “dispute” classification has been justifiable, ensuring that its interaction with complex policy arguments, such as in the Tehran Hostages or Nicaragua v US cases,[18] is not compromised by excessive formalism. It has been advocated that any refusal of jurisdiction would be a “renunciation of the very function of the Court” and must therefore be exceptional indeed.[19]

As such, this assessment must bear in mind the broader context of the Court as a prominent venue of international dispute settlement. Whilst in theory the UN Charter’s prescribed settlement modes do not stipulate an inherent hierarchy,[20] any shift by the Court away from Mavrommatis informalism may indicate a practical change in preference with consequence for its own relevance. This threat has recently materialised in the Court’s new understanding of a “dispute” within the Nuclear Disarmament cases, as discussed further below.
 

The Disarmament Cases

Against a backdrop of Mavrommatis and the enduring flexibility of subsequent jurisprudence, we must turn our gaze to the Nuclear Disarmament[21] litigation. The judgments, delivered in October 2016, carry thirty separate opinions and as many interpretations of what jurisdictionally constitutes a legal dispute. The litigation is landmark in its finding of no legal dispute, turning - at least in the case of the UK - upon the exactitude of the operative dispute definition.

The Republic of the Marshall Islands, a small Pacific nation especially affected by the testing of nuclear weaponry in the past, submitted their case to contest the larger states’ non-fulfilment of disarmament obligations. Whilst the turbulent topic would have no doubt proven equally divisive on the merits, the failure of all three cases at the first preliminary objection prevented any real discussion of the complaint. The judges’ minds were turned to their understanding of a “dispute” and the slim majority found the Nuclear Disarmament cases wanting.

Whilst the majority and dissent alike carried forth the survival of Mavrommatis, all sides agreed that the Nuclear Disarmament cases provided a threshold fact scenario which required development of the test.[22] The majority judgement presents new additions to the dispute definition through “objective awareness” and the need for crystallisation at the time of submission. However, the discord in their approaches and the extent of the dissent muddy any conclusive outcome.

The first of the additions, a requirement that the Respondent state was “aware or could not have been unaware” of the positive opposition of the Applicant,[23] has been plainly critiqued by Judge Crawford[24] as translating “a non-formalistic requirement into a formalistic one”.[25] Though shortened to “objective awareness” it is arguable that this requirement is subjective in nature, focusing on the position of the Respondent State and the knowledge that can be imputed. This is contentious in its clear departure from the super-objective “substance over form” which has previously allowed the inference of a dispute from the contrary party positions rather than their stage in communication.[26] The Marshall Island’s pre-litigation statements of complaint[27] were deemed insufficient to raise objective awareness as they “did not call for a specific reaction by the United Kingdom”,[28] relegating multilateral fora as a venue for airing disputes. The specific treaty obligations owed by the UK persuaded Vice-President Yusuf to dissent in this case alone, forecasting a consequential need for formal notice in advance of litigation.[29]

The minority chalk the slim majority, swayed by President Abrahams’ casting vote, to jurisprudential development gone awry. The new requirement of a Respondent’s awareness is inherited from preceding case law where it was  contemplated as evidential proof of a dispute, though not as a threshold condition to the finding of one.[30]   Though the majority admit the novelty in its compulsory re-packaging,[31] they justify it as a transformative element of the previous jurisprudence to become their new “essential minimum.”[32]

Yet their depiction of “objective awareness” as an established criterion appears too hasty, highlighted by President Abrahams’ rapid change of heart since the CERD case[33] in favour of its adoption. The President relies upon the Georgia, Belgium, and Nicaragua cases[34] to justify the new requirement despite the review of awareness in each case as a factual contemplation rather than a defining feature. The reluctant President had ample opportunity to join the minority in distinguishing the cases, heeding the CERD warning that its formalistic reasoning went beyond the jurisprudence constante of the time.[35] Instead, the majority chose to ignore CERD’s affirmation that a dispute might be found by inference,[36] entrenching its more restrictive interpretation.

Similarly, the majority’s second new requirement, that a dispute must exist prior to submission, further refutes that “positive opposition” alone would suffice. Though the minority accepts that the dispute must “in principle”[37] have arisen at the time of submission, in the East Timor and the Bosnian Genocide cases[38] the mere denial of the Applicant’s submissions confirmed the existence of a dispute. Whilst both cases exhibited a tangible disagreement pre-litigation, the Court in the Bosnian Genocide Case was careful to expand that, whether at the point of application for provisional measures or latterly, the dispute had arisen by the time of adjudication.[39]

Again, whilst there is precedent for the addition, no previous case has been decided entirely on the point.[40] Judge Tomka further highlights that a strict approach to early crystallisation is unnecessary where seised through optional clause.[41] Thus, the refusal of the Majority to accept mere opposition[42] contributes to our impression of an intentional shift.

The point was perhaps most divisive as the minority felt that “artificially stopping… at the date of submission”[43] bears impractical consequence. The imposition of a strict evidential deadline rallies against the remedial ethos of Mavrommatis, which states that dismissal cannot be for mere defect in form.[44] This is so where it would be possible for resubmission to cure all ills, mitigating any wastage in repetition. The concept, whilst separate in its expression, is intrinsic to the Mavrommatis tradition of substance over form and has been preferred in later litigation as “realism and flexibility” against “the needless proliferation of proceedings”.[45] The dissenting judges posit a viable alternative of the “incipient” dispute which crystallises during the course of the proceedings.[46] This appears viable given the Court’s important role as a conflict manager[47] who must consider the constantly evolving facts of international disputes.  Instead, the majority perform a formalistic exercise in its dismissal for such a defect and discount the tools at their disposal to consider a dispute in the round.
 

Formalism Moving Forward

Despite the lack of binding precedent upon the ICJ, the Judges in the Nuclear Disarmament cases have concerned themselves with ‘shoehorning’ the jurisprudence constante to support their individual aims. President Abraham, in his casting vote for the UK, claimed that his finding for dismissal was “morally” obliged,[48] to sustain the pro-formalistic findings of the Court in the very same cases on which he dissented. Judge Benouna highlights his concern in this sea-change given Judge Abrahams’s CERD pronouncement of a jurisprudence “free of all hints of formalism”.[49] This is somewhat telling of the confusion surrounding the threshold test for a dispute, as depicted in the Nuclear Disarmament opinions. Indeed, the motivation behind such division may be unique to the subject matter itself; the hot contention of nuclear disarmament invoked dissent of a political tone[50] and the appeal of a more formulaic test was obvious. As such, the good authority, and consequent longevity, of the decision remains to be seen.

Yet, even where the judgement is propelled forth in precedent, its practical impact may be limited; through restriction to optional and compromissory clause cases, the chance to remedy through fresh proceedings and the insistence of no prescription as to how “objective awareness” is raised.[51] In this last respect, it is possible that the door to flexibility may remain firmly open and that all future cases may be distinguished on the facts.

Nevertheless, though the endurance of the decisions is not yet known, the ICJ’s Nuclear Disarmament findings cannot be dismissed on mere speculation of bad authority and restricted application. Decisions are “mindful of the possible implications” for other pending cases[52] and, where carried forward, the judgements present a cap upon the Court’s own jurisdiction which may further weaken the global appetite for the Optional Clause.[53] In this, the Court trends opposite to other international courts[54] and shies from its “influential” potential in pronouncement of the law.[55]

Conclusion

The “objective awareness” and temporal cut-off requirements introduced by the Nuclear Disarmament cases place greater import on the exchanges between parties prior to application to the ICJ. The deflection of the majority from the traditional Mavrommatis flexibility in favour of this higher “dispute” threshold inevitably signals a shift to formalism. In practice, this new preference will augment the role of negotiation and good notice prior to litigation. As such, whether in culmination or radical departure from the jurisprudence constante, the Nuclear Disarmament cases mark a new era of formalism for the World Court.

 

 

 

 

 

 

 

 

[1] Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), (Marshall Islands v Pakistan), (Marshall Islands v. United Kingdom), Preliminary Objections, Judgement, I.C.J. Report 2015-2016; differentiated in further reference by citation of the States party to the judgement.

[2] Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J., Series A, No.2.

[3] Ibid, p.13.

[4] Marshall Islands v. United Kingdom, (Dissenting Opinion of Judge Robinson) at [13].

[5] Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Order of 29 June 1999, I.C.J. Reports [1999], p.975, Judge Lachs at [478] and [509].

[6] n.1.

[7] n.5, (Dissenting Opinion of Judge Crawford) at [10].

[8] Ibid, p.34.

[9] Ibid, p.12.

[10] Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) (Germany v. Poland), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, pp.10-11; Certain German Interests in Polish Upper Silesia, (Germany v Poland) P.C.I.J. Series A, No. 6, p.14.

[11] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion (Second Phase), [1950], I.C.J. Reports 221, at [74]; see also, Fisheries Jurisdiction (Spain v. Canada) [1998], I.C.J. Reports 58.

[12] Malcolm N. Shaw, International Law (6th edn, CUP 2008), 1067-68.

[13] South West Africa cases, (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, [1962] I.C.J. Reports 319, p.13.

[14] n.14.

[15] See further discussion below.

[16] Application for the revision and interpretation of the Case Concerning the Continental Shelf, (Tunisia v Libya) [1985] I.C.J. Reports, 192.

[17] East Timor case, (Portugal v Australia), Jurisdiction, Judgment, [1995] I.C.J. Reports 90, at [22]; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), [1996] I.C.J. Reports 595, at [26].

[18] U.S. Diplomatic and Consular Staff in Tehran, (United States v Iran), [1980] I.C.J. Reports 3; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v U.S.) [1986] I.C.J. Reports 392.

[19] Hugh Thirlway, ‘The International Court of Justice” in Malcolm D. Evans (ed), International Law (4th edn, OUP 2014), 600.

[20] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 33.

[21] n.1.

[22] n.5., (Separate Opinion of Judge Owada) at [3]; (Dissenting Opinion of Vice-President Yusuf) at [17].

[23] n.5., (Judgement) at [14].

[24] n.5., (Dissenting Opinion of Judge Crawford) at [5].

[25] n.5., (Dissenting Opinion of Judge Crawford) at [5].

[26] See discussion above.

[27] n.5., (Judgement) at [49-50].

[28] Ibid, at [50].

[29] Ibid, at [54-58].

[30] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), I.C.J Reports [2011], 70; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) I.C.J. Reports [2012], 422; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), I.C.J Report 2015-2016, 36.

[31] n.5., (Separate Opinion of Judge Owada) at [13-14].

[32] Ibid.

[33] n.33., (Georgia v Russian Federation).

[34] n.33.

[35] Ibid, at [161].

[36] Ibid.

[37] n.5, (Judgement) at [42].

[38] n.19; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, I.C.J. Reports [1996] 595.

[39] Ibid, Bosnian Genocide Case at [595], [614].

[40] Ibid; Certain Property (Liechtenstein v. Germany) Preliminary Objections, I.C.J. Reports [2005] 6.

[41] n.5, (Separate Opinion of Judge Tomka) at [17-19].

[42] As per Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) I.C.J. Reports [1990] 92. at [351], [555]; n.45, Certain Property at [6], [19]; n.14, Shaw, 1069.

[43] n.5, (Dissenting Opinion of Judge Benouna) at [1].

[44] n.3, p.34.

[45] Case Concerning Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) I.C.J. Reports [2008] 412 at [79-81]; also n.12, Upper Silesia case at [6].

[46] n.5., (Dissenting Opinion of Vice-President Yusuf) at [28]; (Dissenting Opinion of Judge Crawford) at [26].

[47] John Collier and Vaughn Lowe, The Settlement of Disputes in International Law, (OUP 2000).

[48] n.5, (Separate Opinion of President Abrahams) at [9].

[49] n.33 at [14]; (Dissenting Opinion of Judge Benouna) at p.3.

[50] n.5, Dissenting Opinions of Judges Benouna, Tomka, Trindade and Robinson.

[51] n.5, (Judgement) at [38].

[52] Case Concerning legality of the Use of Force (Serbia and Montenegro v UK) I.C.J. Reports [2004] 1307, pp.1353-1354.

[53] Benedict Kingsbury, ‘Uneven Judicialization in Global Order’ in James Crawford and Martti Koskinniemi (eds) The Cambridge Companion to International Law (CUP 2012) at 210-213.

[54] E.g. Ireland v UK 5310/71 (1978) ECHR 1.

[55] Christian J. Tams “Law-Formative Agency: Summary and Synthesis” in Christian J Tams and James Sloan (eds) The Development of International Law by the International Court of Justice, (OUP 2013) at 378-379.

 
 

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