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On Form, Substance, and Equality Between States

  • George R. B. Galindo (a1)

Extract

The International Court of Justice (ICJ)’s 2016 judgments on the three cases Obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament show the omnipresence of the dichotomy between form and substance in the Court's case-law. Commentators and several dissenting judges have stressed that the judgments represent a landmark in the sense that the Court has radically departed from the consideration of flexible standards in applying procedural rules to the determination of the issue of identification of a legal dispute. In other words, it made form prevail over substance.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and the Nuclear Disarmament (Marsh. Is. v. UK), Preliminary Objections (Oct. 5, 2016); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and the Nuclear Disarmament (Marsh. Is. v. India), Preliminary Objections (Oct. 5, 2016); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and the Nuclear Disarmament (Marsh. Is. v. Pak.), Preliminary Objections (Oct. 5, 2016) [hereinafter Marshall Islands Cases]. Unless otherwise indicated, the references to the cases will be that of the one instituted against the United Kingdom.

2 See, e.g., Christian Tams, No Dispute about Nuclear Weapons?, EJIL: Talk! (Oct. 6, 2016) and Nico Krisch, Capitulation in the Hague: The Marshall Islands Cases, EJIL: Talk! (Oct. 10, 2016).

4 See Cesare P. R. Romano, International Justice and Developing Countries (continued): A Qualitative Analysis, 1 Law & Prac. Int'l Cts. & Tribunals 539, 574–590 (2002).

5 It is surprising that scholars such as TWAIL (Third World Approaches to International Law) affiliates, have not paid more attention to international procedural law at the ICJ.

6 For the diferences between formal and material inequalities in international law, see Simpson, supra note 3, at 25–61.

7 See Duncan M. Kennedy, A Critique of Adjudication [fin de siècle] 315–338 (1997).

8 Mauro Cappelletti & Bryan Garth, Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective, 27 Buff. L. Rev. 181, 182 (1978).

10 Marshall Islands Cases, supra note 1, at 38.

12 Marshall Islands Cases, Dissenting Opinion of Judge Cançado Trindade 119–127.

13 See Axel Honneth, Reification: A New Look at an Old Idea 17–96 (2008). In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, petitions with more than three million signatures were filed in the Court. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Dissenting Opinion of Judge Weeramantry, 1996 ICJ Rep. 429, 438 (July 8) at 438. This is the kind of engagement that should not be easily disregarded in international procedural law.

14 It seems that Article 62 of the ICJ Statute already opens the possibility of admitting amici curiae in the case of violations to erga omnes obligations. See Paolo Palchetti, Opening the International Court of Justice to Third States: Intervention and Beyond, 6 Max Planck UN Y.B. 139, 177–180 (2002).

15 South West Africa, (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 337 (Dec. 21).

17 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 ICJ Rep. 487 (July 18).

18 André Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure, 23 Eur. J. Int'l L. 769, 785 (2012).

19 Voeffray, supra note 16, at 368.

20 See, e.g. Marshall Islands Cases, Dissenting Opinion of Judge Cançado Trindade 31–56.

21 See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. US), 1986 ICJ Rep.14, 72 (June 27).

22 Marshall Islands Cases, supra note 2, at 56.

23 South West Africa, supra note 15, at 346 (Dec. 21).

24 Treaty on the Non-Proliferation of Nuclear Weapons preamble, July 1, 1968, 729 UNTS 161.

25 This can clearly be inferred from the controversial (and unfortunate) Paragraph 97 of the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, since the doubts on the legality (or illegality) of the use of such weapons arise only in “extreme circumstance of self-defence.” See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).

26 Caroline E. Foster, Burden of Proof in International Courts and Tribunals, 29 Austl. Y.B. Int'l L. 27, 27–28 (2010).

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