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The World Court's Jurisdictional Formalism and its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

  • VINCENT-JOËL PROULX
Abstract

On 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v. Russia and confirmed in both Belgium v. Senegal and the Alleged Violations (Nicaragua v. Colombia) judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

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1 For a critical take, see A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (2013), 16–20.

2 One critical proposition entails ‘that the existence of a [legal] dispute ha[s] to be established objectively and autonomously by the Court itself’. See R. Kolb, Theory of International Law (2016), 319; and S. Forlati, The International Court of Justice: An Arbitral Tribunal or a Judicial Body? (2014), 122ff.

3 See J. d'Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011). In a more specific context, see also d'Aspremont, J., ‘Formalism versus Flexibility in the Law of Treaties’, in Tams, C. et al. (eds.), Research Handbook on the Law of Treaties (2014), 257–84.

4 See Tomka, P. and Proulx, V.-J., ‘The Evidentiary Practice of the World Court’, in Sainz-Borgo, J. et al. (eds.), Liber Amicorum in Honour of a Modern Renaissance Man: His Excellency Gudmundur Eiríksson (2017), 361–82.

5 See R. Kolb, The International Court of Justice (2013), 165–71.

6 See also Morgan-Foster, J., Pinzauti, G. and Webb, P., ‘The International Court of Justice in the Leiden Journal: A Retrospective’, (2017) 30 LJIL 1 , at 4–5.

7 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia), Preliminary Objections, Judgment of 1 April 2011, [2011] ICJ Rep. 70, at 120, para. 113. On the existence of a dispute and perceived jurisdictional inconsistencies between the provisional measures order and judgment on preliminary objections, see Okowa, P., ‘The International Court of Justice and the Georgia/Russia Dispute’, (2011) 11 Human Rights Law Review 739 , at 748–51.

8 See Georgia v. Russia, ibid. paras. 23–114. For a critical account, see West, D., ‘Formalism Versus Realism: The International Court of Justice and the Critical Date for Assessing Jurisdiction’, (2016) 5 UCL Journal of Law and Jurisprudence 31 . On the Court's fact-finding shortcomings and treatment of evidentiary matters concerning the existence of a dispute, see A.M. Weisburd, Failings of the International Court of Justice (2016), 132ff and 236ff.

9 Bilateral exchanges between the parties prior to the seizing of the Court had centred on the UN Convention against Torture, rather than on customary international law crimes: Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment of 20 July 2012, [2012] ICJ Rep. 422, at 444–5, paras. 54–5; and at 462, para. 122(2). On Belgium's attempt to fit the alleged crimes under customary law, see Nollkaemper, A., ‘Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v. Senegal ’, (2013) 4 Journal of International Dispute Settlement 501 , at 517.

10 Belgium v. Senegal, ibid., at 444, para. 54.

11 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, paras. 78 and 111(1)(c).

12 The applicant directed its claims against China, the Democratic Republic of Korea, France, India, Israel, Pakistan, Russia, the UK, and the US. See ICJ Press Release, ‘The Republic of the Marshall Islands files Applications against nine States for their alleged failure to fulfil their obligations with respect to the cessation of the nuclear arms race at an early date and to nuclear disarmament’, No. 2014/18, 25 April 2014, available at www.icj-cij.org/files/press-releases/0/18300.pdf.

13 On forum prorogatum, see M.N. Shaw, Rosenne's Law and Practice of the International Court: 1920-2015, (2016), Vol. I, at 697–724; Yee, S., ‘ Forum Prorogatum in the International Court’, (2000) 42 German Yearbook of International Law 145 ; Bedjaoui, M. and Ouguergouz, F., ‘Le Forum Prorogatum devant la Cour Internationale de Justice: Les Ressources d'une Institution ou la Face Cachée du Consensualisme’, (1997) 5 African Yearbook of International Law 91 .

14 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment of 5 October 2016, para. 56 [hereinafter ‘RMI v. India’]; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment of 5 October 2016, para. 56 [hereinafter ‘RMI v. Pakistan’]; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. UK), Preliminary Objections, Judgment of 5 October 2016, para. 59 [hereinafter ‘RMI v. UK’].

15 See RMI v. UK, ibid., Judge Tomka, Separate Opinion, para. 1; RMI v. UK, ibid., Judge Crawford, Dissenting Opinion, para. 1; RMI v. UK, ibid., Judge Bennouna, Dissenting Opinion, at 1; RMI v. Pakistan, ibid., Judge Tomka, Separate Opinion, para. 1; RMI v. Pakistan, ibid., Judge Crawford, Dissenting Opinion, para. 1; RMI v. Pakistan, ibid., Judge Bennouna, Dissenting Opinion, at 1; RMI v. India, ibid., Judge Tomka, Separate Opinion, para. 1; RMI v. India, ibid., Judge Crawford, Dissenting Opinion, para. 1; RMI v. India, ibid., Judge Bennouna, Dissenting Opinion, at 1.

16 See RMI v. India, ibid., Judge Crawford, Dissenting Opinion, para. 10: ‘[t]he Court in the present case discard[ed] this tradition of flexibility’. Some commentators highlight the relationship between substance and form and its impact on developing nations, advocating that ‘the ICJ does not take into regard arguments about material inequality in its procedural law’. See Galindo, G., ‘On Form, Substance, and Equality Between States’, (2017) 111 AJIL Unbound 7580.

17 RMI v. India, supra note 14, para. 34; RMI v. Pakistan, supra note 14, para. 34; and RMI v. UK, supra note 14, para. 37, citing Mavrommatis Palestine Concessions (Greece v. UK), Jurisdiction, [1925] PCIJ Rep. Series A, No. 2, at 11.

18 Kolb, supra note 5, at 302. For relevant jurisprudence, see Kolb, ibid., 300–19.

19 C. Tams, ‘No Dispute About Nuclear Weapons?’, EJIL: Talk!, 6 October 2016, available at www.ejiltalk.org/no-dispute-about-nuclear-weapons.

20 RMI v. India, supra note 14, paras. 34 and 36; RMI v. Pakistan, supra note 14, paras. 34 and 36; and RMI v. UK, supra note 14, paras. 37 and 39. See also Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion of 30 March 1950, [1950] ICJ Rep. 65, at 74; South West Africa Cases (Ethiopia v. South Africa: Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, [1962] ICJ Rep. 319, at 328; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment of 11 June 1998, [1998] ICJ Rep. 275, at 315, para. 89: ‘[these elements] need not necessarily be stated expressis verbis’, ‘as in other matters, the position or the attitude of a party can be established by inference’; Georgia v. Russia, supra note 7, at 84, para. 30: ‘[this determination is a matter] of substance, not of form’ and ‘the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for’. On this last point, see also P. Couvreur, The International Court of Justice and the Effectiveness of International Law (2017), 105. Moreover, a party's lack of response to the claims of another does not negate the existence of a dispute. See Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion of 26 April 1988, [1988] ICJ Rep. 12, at 28, para. 38; Tradex Hellas S.A. v. Albania, Decision on Jurisdiction of 24 December 1996, Case No. ARB/94/2, [2002] 5 ICSID Rep. 43, at 60–1, 69; AAPL v. Sri Lanka, Award of 27 June 1990, Case No. ARB/87/3, [1997] 4 ICSID Rep. 246, at 251. See also R. Higgins, Problems and Process: International Law and How We Use It (1994), at 196–7; Schreuer, C., ‘What is a Legal Dispute?’, in Buffard, I. et al. (eds.), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (2008) 959 , at 965. On the ‘existence of a dispute’ under ICSID arbitration, see C.H. Schreuer et al., The ICSID Convention: A Commentary (2013), 93ff.

21 RMI v. India, supra note 14, para. 35; RMI v. Pakistan, supra note 14, para. 35; and RMI v. UK, supra note 14, para. 38. However, it underscored that whilst ‘“a formal diplomatic protest may be an important step to bring a claim of one party to the attention of the other, such a formal protest is not a necessary condition” for the existence of a dispute’. See RMI Cases, citing Alleged Violations case, supra note 11, para. 72. But see Couvreur, ibid., at 106: ‘some form of negotiations will often prove to be necessary as evidence of the existence of a dispute as a matter of practical and political expediency’.

22 RMI v. India, supra note 14, paras. 37–40; RMI v. Pakistan, supra note 14, paras. 37–40; and RMI v. UK, supra note 14, paras. 40–3.

23 S.V. Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State (2016), 69, also analyzing the Case Concerning Certain Property (Lichtenstein v. Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Rep. 6, at 17, para. 21; and at 18, para. 25. See also Rangel, V.M., ‘Settlement of Disputes Relating to the Delimitation of the Outer Continental Shelf: The Role of International Courts and Arbitral Tribunals’, (2006) 21 The International Journal of Marine and Coastal Law 347 , at 354.

24 See supra note 18 and accompanying text.

25 See, e.g., RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 4.

26 RMI v. India, supra note 14, para. 38; RMI v. Pakistan, supra note 14, para. 38; and RMI v. UK, supra note 14, para. 41.

27 See RMI v. India, supra note 14, para. 46; RMI v. Pakistan, supra note 14, para. 46; and RMI v. UK, supra note 14, para. 49: the applicant ‘urg[ed] all nuclear weapons states to intensify efforts to address their responsibilities in moving towards an effective and secure disarmament’.

28 According to the applicant, this statement unequivocally laid its claim against the respondents:

[T]he Marshall Islands is convinced that multilateral negotiations on achieving and sustaining a world free of nuclear weapons are long overdue. Indeed we believe that States possessing nuclear arsenals are failing to fulfil their legal obligations in this regard. Immediate commencement and conclusion of such negotiations is required by legal obligation of nuclear disarmament resting upon each and every State under Article VI of the Non-Proliferation Treaty and customary international law (emphasis added).

See RMI v. India, supra note 14, para. 26; RMI v. Pakistan, supra note 14, para. 26; and RMI v. UK, supra note 14, para. 28.

29 RMI v. UK, supra note 14, para. 50. The Court stressed that whilst the applicant's ‘statement contain[ed] a general criticism of the conduct of all nuclear-weapon States, it d[id] not specify the conduct of the [UK] that gave rise to the alleged breach’. Further, ‘[s]uch a specification would have been particularly necessary if, as the Marshall Islands contends, the Nayarit statement was aimed at invoking the international responsibility of the Respondent on the grounds of a course of conduct which had remained unchanged for many years’, ibid. But see RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 26: taking a holistic approach to the evidence before highlighting that ‘[t]his is an appropriate multilateral context, and it does not dilute the force of what the Marshall Islands said, which was not limited to a single forgettable sentence’.

30 In RMI v. UK, supra note 14, para. 50, the Court underlined that the UK was not present at the Nayarit conference, a fact brandied by that respondent as an argument that it could not have been aware of the claims against it. See Preliminary Objections of the UK (2015), at 23, para. 48 in RMI v. UK, supra note 14. Yet, that is a far cry from concluding that this state would have been ‘unaware’ of the ground covered at that highly subject-relevant conference, including the claimant's allegations against it. See, e.g., RMI v. UK, supra note 14, Judge Sebutinde, Separate Opinion, paras. 27–8. For some judges, the UK's posture was not without consequences for whether a dispute existed at the critical date. Vice-President Yusuf lamented that the Court ‘treat[ed] the three cases as though they were almost identical’ and opined that following the Court's Nuclear Weapons Advisory Opinion, the UK's voting pattern in the UNGA – essentially revealing its persistent objection to commence multilateral negotiations on nuclear disarmament – evinced the existence of a dispute. See RMI v. UK, supra note 14, Vice-President Yusuf, Dissenting Opinion, paras. 2, 51–2.

31 Certain German Interests in Polish Upper Silesia (Germany v. Poland), Preliminary Objections, [1925] PCIJ Rep. Series A, No. 6, at 14. See also Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) [1927] PCIJ Rep. Series A, No. 13, at 11, stating ‘that it cannot require that the dispute should have manifested itself in a formal way; according to the Court's view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court’. See also RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 3; and J.J. Quintana, Litigation at the International Court of Justice: Practice and Procedure (2015), 58.

32 S. Rosenne, The Law and Practice of the International Court: 1920-2005, (2006), Vol. II, at 507.

33 RMI v. India, supra note 14, paras. 41–53; RMI v. Pakistan, supra note 14, paras. 41–53; and RMI v. UK, supra note 14, paras. 44–57.

34 One apparent shortcoming was the failure to consider the whole context in which the applicant's statements were made, particularly regarding the Nayarit conference. See RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion paras. 24–8.

35 See RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 19:

In the present case, the Marshall Islands does not suggest that there were any of the normal indicators of a bilateral dispute, most obviously because there had not been any correspondence between the States or any bilateral discussion on the subject. Rather it argues that a dispute had arisen through statements made in multilateral fora.

But see Sicilianos, L-A., ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’, (2002) 13 EJIL 1127 , at 1133–4; D. Anzilotti, Cours de Droit International, (1929), Vol. I, at 467 (both suggesting that breaches of most international obligations result in bilateral or ‘bilateralizable’ relations).

36 See Preliminary Objections of the UK (2015), at 22, para. 47 in RMI v. UK, supra note 14.

37 See RMI v. UK, supra note 14, para. 48.

38 See RMI v. UK, supra note 14, Judge Sebutinde, Separate Opinion, para. 29; and Judge Robinson, Dissenting Opinion, para. 60.

39 Manila Declaration on the Peaceful Settlement of International Disputes, UN Doc. A/RES/37/10, Annex (1982).

40 See, e.g., RMI v. UK, supra note 14, para. 43.

41 RMI v. India, paras. 40 and 50; RMI v. Pakistan, supra note 14, paras. 40 and 50; and RMI v. UK, supra note 14, paras. 43 and 54. See also RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 24.

42 RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 24.

43 See RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion paras. 24–8. In the affirmative, the Court should not concern itself with whether ‘any deficiency in that regard’ has been remedied during the course of the proceedings. See RMI v. UK, supra note 14, Judge Crawford, Dissenting Opinion, para. 31.

44 Interestingly, the majority judges belong to nuclear-weapon powers or are nationals of countries that ‘have benefited greatly from the protection offered by the nuclear weapons of the US’, whilst the minority judges ‘are all nationals of countries that do not possess nuclear weapons, most of them from the global South’. See N. Krisch, ‘Capitulation in The Hague: The Marshall Islands Cases’, EJIL: Talk!, 10 October 2016, available at www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases.

45 RMI v. UK, supra note 14, para. 42.

46 See RMI Cases, supra note 14, Judge Crawford, Dissenting Opinions, paras. 7–9. See also Mavrommatis case, supra note 17, at 34.

See also RMI Cases, supra note 14, Judge Robinson, Dissenting Opinions, para. 55. See also Kolb, supra note 5, at 315.

47 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, [2008] ICJ Rep. 412, at 441, para. 85:

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. In such a situation, it is not in the interests of the sound administration of justice to compel the applicant to begin the proceedings anew – or to initiate fresh proceedings – and it is preferable, except in special circumstances, to conclude that the condition has, from that point on, been fulfilled.

See further Oellers-Frahm, K., ‘The Principle of Consent to International Jurisdiction: Is It Still Alive?: Observations on the Judgment on Preliminary Objections in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) ’, (2010) 52 German Yearbook of International Law 487 ; and Blum, Y.Z., ‘Consistently Inconsistent: The International Court of Justice and the Former Yugoslavia (Croatia v. Serbia)’, (2009) 103 AJIL 264 .

48 See the apparent contradiction between Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 279, at 327–8, para. 127, declining jurisdiction since the applicant did not have access to the Court at the date of filing, in apparent contravention of the ‘Mavrommatis principle’; and Croatia v. Serbia, supra note 47, at 441–4, paras. 85–92, suggesting that the respondent's admission to the UN in 2000 fulfilled the ‘Mavrommatis principle’ by looking at the situation at the time of the judgment's delivery.

49 See RMI v. UK, supra note 14, Vice-President Yusuf, Dissenting Opinion, para. 24; and Judge Robinson, Dissenting Opinion, para. 55. See also Polish Upper Silesia case, supra note 31, at 14; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep. 392, at 428–9, para. 83. In the UK's case, the introduction of fresh proceedings might have run into potential obstacles, given its amended Art. 36(2) declaration. See infra notes 1056 and accompanying text.

50 Several judges criticized the disconnection between this rule and the Court's factual appreciation. See RMI v. UK, supra note 14, Vice-President Yusuf, Dissenting Opinion, para. 33; RMI v. India, supra note 14, Judge Tomka, Separate Opinion, paras. 14–16; RMI v. UK, supra note 14, Judge Cançado Trindade, Dissenting Opinion, para. 27; RMI v. Pakistan, supra note 14, Judge Robinson, Dissenting Opinion, para. 41ff; RMI v. UK, supra note 14, Judge Crawford, Dissenting Opinion, para. 10; and RMI v. UK, supra note 14, Judge ad hoc Bedjaoui, Dissenting Opinion, para. 34.

51 Belgium v. Senegal, supra note 9, Judge Abraham, Separate Opinion, at 474–6, paras. 13–20. Judge Owada also expressed misgivings about the Court's approach, describing its methodology as relying ‘upon a purely formalistic and even largely artificial logic’: Belgium v. Senegal, supra note 9, Judge Owada, Declaration, at 466–7, paras. 11–4. For the Court's holding, see supra notes 910 and accompanying text.

52 For the full discussion, see Georgia v. Russia, supra note 7, Judge Abraham, Separate Opinion, at 228, paras. 14–6.

53 See generally RMI Cases, supra note 14, President Abraham, Declarations. Compare with RMI Cases, supra note 14, Judge Tomka, Separate Opinions, para. 1, stressing that ‘[t]he Court seems not to be interested in knowing whether a dispute between [the parties] exists now’. See also Anghie, A., ‘Politic, Cautious, and Meticulous: An Introduction to the Symposium on the Marshall Islands Case’, (2017) 111 AJIL Unbound 62 , at 65, describing President Abraham's reversal as an ‘awkward spectacle’; Venzke, I., ‘Public Interest in the International Court of Justice–A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)’, (2017) 111 AJIL Unbound 68 , at 73, observing that President Abraham ‘was at pains to explain why in his opinion there is no dispute in [the RMI Cases]’.

54 Krisch, supra note 44.

55 See supra note 51.

56 H. Thirlway, The International Court of Justice (2016), 53, citing Alleged Violations case, supra note 11, paras. 50 and 52.

57 See RMI v. UK, supra note 14, Judge Owada, Separate Opinion, para. 21; Judge Xue, Declaration, para. 4; Judge Gaja, Declaration, at 1; and Judge Bhandari, Separate Opinion, para. 14.

58 RMI v. UK, supra note 14, Vice-President Yusuf, Dissenting Opinion, paras. 24 and 28.

59 Ibid., para. 60.

60 See supra note 14, para. 59(1). Both the slim majorities and the casting vote are significant features of these cases: see Tams, supra note 19. Other instances of the exercise of the casting vote are found in the following: South West Africa, (Ethiopia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6, at 51, para. 100; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 266, para. 105(2)(E); Questions of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, para. 126(2)(b).

61 Alleged Violations case, supra note 11, para. 73.

62 See RMI v. India, supra note 14, Vice-President Yusuf, Declaration, paras. 7–8; Judge Sebutinde, Separate Opinion, paras. 30–2; Judges Bennouna, Dissenting Opinion, at 5; Judge Robinson, Dissenting Opinion, paras. 26–7, and Judge Crawford, Dissenting Opinion, paras. 3-6. See also Proulx, V-J., ‘The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?’, (2017) 111 AJIL Unbound 96 , at 96–8.

63 See supra notes 910, 51–5 and accompanying text.

64 RMI Cases, supra note 14, Judge Robinson, Dissenting Opinions, para. 38.

65 G. Abi-Saab, Les Exceptions Préliminaires dans la Procédure de la Cour internationale de Justice : Etude des Notions Fondamentales de Procédure et des Moyens de leur Mise en Oeuvre (1967), at 116. On the development of this requirement at that time, see Abi-Saab, ibid., at 118–25. See also K. Wellens, Negotiations in the Case Law of the International Court of Justice: A Functional Analysis (2014), 87–9.

66 RMI Cases, supra note 14, Judge Robinson, Dissenting Opinions, para. 38.

67 See generally RMI Cases, supra note 14, Judge Bennouna, Dissenting Opinions, at 2 and 6; and Judge Sebutinde, Separate Opinions, paras. 2–9.

68 On the functional complementarity between those two organs, see V-J. Proulx, Institutionalizing State Responsibility: Global Security and UN Organs (2016), 143–8.

69 That provision states that ‘[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests’.

70 See also P. Webb, International Judicial Integration and Fragmentation (2013), 128.

71 See Maritime Delimitation in the Black Sea (Romania v. Ukraine), Merits, Judgment of 3 February 2009, [2009] ICJ Rep. 61; Tomka, P., ‘The Guyana/Suriname Arbitration Award of 2007’, (2012) 8 PCA Awards Series 1, at 1619 .

72 See Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Merits, Judgment of 31 March 2014, [2014] ICJ Rep. 226; and Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 14.

73 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Application Instituting Proceedings, 16 January 2017, available at www.icj-cij.org/files/case-related/166/19314.pdf. Ukraine also requested the indication of provisional measures, available at www.icj-cij.org/files/case-related/166/19316.pdf. The Court declined to indicate provisional measures relating to the Terrorist Financing Convention: Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 106.

74 RMI Cases, supra note 14, Judge Bennouna, Dissenting Opinions, at 2.

75 See Davis, K.D., ‘Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court’, (2016) 25 Minnesota Journal of International Law 79 .

76 Bianchi, A., ‘Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case’, (2017) 111 AJIL Unbound 81 , at 86. See also Anghie, supra note 53, at 62–7.

77 Nuclear Weapons Advisory Opinion, supra note 60, at 264 (also cited in RMI v. India, supra note 14, para. 19; RMI v. Pakistan, supra note 14, para. 19; and RMI v. UK, supra note 14, para. 20).

78 On enforcement of obligations erga omnes, see C.J. Tams, Enforcing Obligations Erga Omnes in International Law (2005); M. Ragazzi, The Concept of International Obligations ‘Erga Omnes’ (1997), at 7–12; and A. De Hoogh, Obligations Erga Omnes and International Crimes (1996), at 49–56.

79 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, [2006] ICJ Rep. 6, at 31–2, para. 64; and at 52, para. 125 (also citing East Timor (Portugal v. Australia), Judgment of 30 June 1995, [1995] ICJ Rep. 90, at 102, para. 29).

80 Not handling the additional preliminary objections drew criticism. See RMI Cases, supra note 14, Judge Gaja, Declarations; RMI v. India, supra note 14, Judge Bhandari, Separate Opinion, para. 51ff; RMI v. Pakistan, supra note 14, Judge Bhandari, Separate Opinion, para. 16ff; and RMI v. UK, supra note 14, Judge Bhandari, Separate Opinion, para. 16ff. The respondents’ other principal preliminary objections addressed reservations formulated in their optional clause declarations, the absence of third parties whose essential interests were at stake, and the lack of practical consequence of an eventual judgment. See RMI v. UK, ibid., paras. 23 and 58.

81 On SR for breaches of communitarian norms, see Crawford, J., ‘Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts’, in Fastenrath, U. et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (2011), 224–40. For related seminal accounts, see Simma, B., ‘From Bilateralism to Community Interest in International Law’, (1994) 50 Recueil des cours de l'Académie de droit international 217 ; and Crawford, J., ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Recueil des cours de l'Académie de droit international 325 .

82 See Alland, D., ‘The Definition of Countermeasures’, in Crawford, J.R. et al. (eds.), The Law of International Responsibility (2010) 1127 , at 1129; R. Provost, International Human Rights and Humanitarian Law (2002), 338, fn 2; Gross, L., ‘States as Organs of International Law and the Problem of Autointerpretation’, in Lipshy, G. (ed.), Selected Essays on International Law and Organization (1993), 167–97; and H. Kelsen, Peace Through Law (1944), 13–4. On anarchy in the global legal order, see authorities cited in Proulx, supra note 68, at 18–19, fn 17–8.

83 On SR invocation involving multiple parties, see J. Crawford, State Responsibility: The General Part (2013), 644–74.

84 RMI Cases, supra note 14, Judge Tomka, Separate Opinions, para. 35 (enlisting scholarly support).

85 Sicilianos, supra note 35, at 1135. See also Tams, supra note 78, at 53–8 and 80. The breach of such obligations ‘by one party prejudices the treaty regime between all’. See Crawford, ‘Responsibility’, supra note 81, at 227; and ILC Draft Articles on the Law of Treaties with Commentaries, 1966 YILC, Vol. II, at 216, para. 8, fn 117.

86 Crawford, ‘Responsibility’, supra note 81, at 226. See also Marek, K., ‘Contribution à l’Étude de l'Histoire du Traité Multilatéral’, in Diez, E. and Bindschedler, R. (eds.), Festschrift für Rudolf Bindschedler (1980), 1739 .

87 RMI v. India, supra note 14, paras. 35–42; and RMI v. UK, supra note 14, paras. 38–45.

88 See RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 22; and RMI v. Pakistan, supra note 14, Judge Crawford, Dissenting Opinion, para. 22: also underscoring that ‘Article 43 is not a pre-notification requirement, it is a notification requirement’. See also RMI v. India, supra note 14, Judge Tomka, Separate Opinion, para. 29; and RMI v. Pakistan, supra note 14, Judge Tomka, Separate Opinion, para. 29.

89 Georgia v. Russia, supra note 7, President Owada, Judge Simma, Judge Abraham, Judge Donoghue and Judge ad hoc Gaja, Joint Dissenting Opinion, at 143, para. 3: ‘the Court . . . has never before required prior notice of the claim and rejection by the respondent’; Georgia v. Russia, supra note 7, President Owada, Separate Opinion, at 174–5, paras. 11–13: characterizing it as ‘a new stringent requirement’; and Wellens, supra note 65, at 90.

90 RMI Cases, supra note 14, Judge Xue, Declarations, para. 6.

91 See also RMI v. India, supra note 14, Judge Tomka, Separate Opinion, para. 29; and RMI v. Pakistan, supra note 14, Judge Tomka, Separate Opinion, para. 29.

92 See Tams, supra note 78, at 160, fn 8.

93 RMI Cases, supra note 14, Judge Xue, Declarations, para. 8.

94 See L. Oppenheim et al., Oppenheim's International Law, (1992), Vol. I, at 5; Tams, supra note 78, at 158–92; Crawford, J., ‘The Standing of States: A Critique of Article 40 of the ILC's Draft Articles on State Responsibility’, in Andenas, M. (ed.), Judicial Review in International Perspective (2000), 2343 .

95 Perhaps the Court's own language leads to that conclusion. See RMI v. UK, supra note 14, para. 44: ‘the Marshall Islands, by virtue of the suffering which its people endured as a result of it being used as a site for extensive nuclear testing programs, has special reasons for concern about nuclear disarmament’ (emphasis added). See also ibid., para. 16.

96 See also RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 21. For the applicant's locus standi arguments, see Memorial, paras. 31–9 in RMI v. Pakistan, supra note 14, available at www.icj-cij.org/files/case-related/159/159-20150112-WRI-01-00-EN.pdf (also invoking these two provisions); Application Instituting Proceedings against the Islamic Republic of Pakistan, para. 35 in ibid., available at www.icj-cij.org/files/case-related/159/18294.pdf (defining the obligations at issue as erga omnes).

97 For a more progressive construction, see Gaja, Rapporteur G., ‘Resolution: Obligations Erga Omnes in International Law’, Institut de Droit International (2005), Arts. 1(a) and 5 available at www.idi-iil.org/app/uploads/2017/06/2005_kra_01_en.pdf.

98 Belgium v. Senegal, supra note 9, at 449–50, paras. 67–70. On this point in relation to SR, see J.R. Crawford, ‘Third Report on State Responsibility’, UN Doc. A/CN.4/507 and Add. 1–4 (2000), paras. 106–7, Table 1.

99 Memorial, supra note 96, para. 35 in RMI v. Pakistan.

100 See RMI Cases, supra note 14, Judge Tomka, Separate Opinions, Section II. Admissibility.

101 RMI v. India, supra note 14, Judge Tomka, Separate Opinion, paras. 35 and 38.

102 See RMI v. UK, supra note 14, Judge Tomka, Separate Opinion, paras. 38–9.

103 See RMI v. UK, supra note 14, Judge Xue, Declaration, paras. 9-11.

104 RMI v. UK, supra note 14, Judge Crawford, Dissenting Opinion, paras. 33–4. For a critique of Monetary Gold and the ‘strict inter-State outlook’, see ibid., Judge Cançado Trindade, Dissenting Opinion, paras. 128–31.

105 Ironically, there was no guarantee that this amendment would shelter the UK from further litigation, since RMI v. UK held that there was no justiciable ‘dispute’ before the Court. See Krisch, supra note 44. The UK amended its declaration again in 2017, now excluding ‘any claim or dispute which is substantially the same as a claim or dispute previously submitted to the Court’ (emphasis added).

106 The text of the updated declaration is available at www.icj-cij.org/en/declarations/gb.

107 South West Africa Cases, supra note 20, at 346. See also RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, paras. 20-1; and RMI v. Pakistan, supra note 14, Judge Crawford, Dissenting Opinion, paras. 20–1: highlighting that ‘[t]his does not require the Court to treat the underlying relations as bilateral ab initio’. Interestingly, in 1987 Damrosch hypothesized that ‘the two-party, zero-sum dispute may well already be the exception rather than the rule’. See Damrosch, L.F., ‘Multilateral Disputes’, in Damrosch, L.F. (ed.), The International Court of Justice at a Crossroads (1987) 376 , at 376.

108 RMI v. India, supra note 14, paras. 36 and 45; RMI v. Pakistan, supra note 14, paras. 36 and 45; and RMI v. UK, supra note 14, paras. 39 and 48.

109 RMI v. India, supra note 14, Judge Crawford, Dissenting Opinion, para. 21; and RMI v. Pakistan, supra note 14, Judge Crawford, Dissenting Opinion, para 21.

110 For a comparison between that decision and the RMI Cases, see Venzke, supra note 53, at 68–74.

111 D. Joyner, ‘My Reaction to the Dismissal of the Marshall Islands Cases by the ICJ’, Arms Control Law, 5 October 2016, available at armscontrollaw.com/2016/10/05/my-reaction-to-the-dismissal-of-the-marshall-islands-cases-by-the-icj.

112 Ibid.; and Davis, supra note 75, at 79.

113 See D.H. Joyner, International Law and the Proliferation of Weapons of Mass Destruction (2009), 230–3.

114 Several judges criticized the Court's formalism. See RMI v. India, supra note 14, Vice-President Yusuf, Declaration, para. 12; Judge Tomka, Separate Opinion, paras. 20 and 26; Judges Bennouna, Dissenting Opinion, at 1–4; Judge Cançado Trindade Dissenting Opinion, paras. 11–13, 21–2, 30–2 and 318; Judge Sebutinde, Separate Opinion, paras. 1, 10, 13, 16, 26, 31–2; Judge Robinson, Dissenting Opinion, paras. 27, 39 and 53 (implicitly); Judge Crawford, Dissenting Opinion, paras. 5 and 18; and Judge ad hoc Bedjaoui, Dissenting Opinion, paras. 9, 11, 24, 48, 51 and 77; and RMI v. Pakistan, supra note 14, Vice-President Yusuf, Declaration, para. 12; Judge Tomka, Separate Opinion, paras. 20 and 26; Judge Bennouna, Dissenting Opinion, at 1–4; Judge Cançado Trindade, Dissenting Opinion, paras. 11–13, 21–2, 30–2 and 318; Judge Sebutinde, Separate Opinion, paras. 1, 10, 13, 16, 26, 31–2; Judge Robinson, Dissenting Opinion, paras. 27, 39 and 53 (implicitly); Judge Crawford, Dissenting Opinion, paras. 5 and 18; and Judge ad hoc Bedjaoui, Dissenting Opinion, paras. 9, 11, 24, 48, 51 and 77. But see RMI v. India, ibid., Judge Tomka, Separate Opinion, para. 17; and RMI v. Pakistan, ibid., Judge Tomka, Separate Opinion, para. 17: rejecting the idea that Georgia v. Russia marked the ‘beginning of a more formalist approach’.

115 See Ranganathan, S., ‘Nuclear Weapons and the Court’, (2017) 111 AJIL Unbound 88 .

116 See Bianchi, supra note 76, at 85–6.

117 See RMI v. India, supra note 14, Judge Tomka, Separate Opinion, paras. 39–41. See also Judge Weeramantry, Separate Opinion, in Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Merits, Judgment of 25 September 1997, [1997] ICJ Rep. 7, 117–18, remarking that the ICJ's inter-State dispute settlement function fails to do justice to the erga omnes character of certain obligations; and Crawford, ‘Responsibility’, supra note 81, at 238–40.

118 Kennedy, D., ‘The Nuclear Weapons Case’, in Boisson de Chazournes, L. and Sands, P. (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), 462 , at 465.

119 Ibid.

120 UN Doc. A/RES/71/258 (2016), paras. 8–14.

121 See Proulx, supra note 68, especially at Part II; and Proulx, V.-J., ‘An Incomplete Revolution: Enhancing the Security Council's Role in Enforcing Counterterrorism Obligations’, (2017) 8 Journal of International Dispute Settlement 303 .

122 But see RMI Cases, supra note 14, Judge Xue, Declarations, paras. 12–13, drawing from the preamble through a reference to the Nuclear Weapons Advisory Opinion.

123 UN Doc. S/RES/984 (1995), para. 6.

* Assistant Professor, National University of Singapore's Faculty of Law []. I am indebted to Tony Anghie for helpful discussions. I express my deep gratitude to the Journal’s Editorial Board and the two anonymous peer reviewers. I am grateful for the support received through the Singapore Ministry of Education Academic Research Fund Tier 1 (WBS No R-241-000-138-133). All views and errors remain my own.

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