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Necessity of “objective awareness” for the “existence of dispute”

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Indian Journal of International Law

Abstract

It has been a year since the ICJ for the first time declined jurisdiction because the respondent was not aware that there was a dispute – the “objective awareness” test. The court was deeply divided on this issue, and the decision has been widely criticized for its adoption of the objective awareness test. This article argues that the Court was correct in applying the objective awareness test. The awareness of the respondent has always been found by the PCIJ and ICJ – whether directly or indirectly – and there are sound policy reasons that necessitate it. Firstly, for a dispute to exist for the ICJ to exercise jurisdiction, the extent of disagreement between the parties has to reach a certain degree of seriousness. Such a degree of seriousness cannot exist if the respondent is unaware of the dispute. Secondly, unlike the observation by the judges in the minority, the objective awareness test flows from the jurisprudence of the PCIJ and the ICJ. Thirdly, flexibility at the stage of jurisdiction does not imply that the dispute has to be routinely held to exist. Fourthly, if the respondent is caught unaware and surprise litigation is allowed, it will undermine the confidence of States in the international adjudication process, particularly those that have accepted the compulsory jurisdiction of the ICJ. Lastly, it would make the expression of disagreement at multilateral negotiations impossible. States will be uncomfortable expressing their views freely since in every disagreement there would be roots of a dispute.

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Notes

  1. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 4 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 <http://www.icj-cij.org/files/case-related/159/159-20161005-JUD-01-00-EN.pdf> accessed 4 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), Preliminary Objections, Judgment of 5 October 2016 <http://www.icj-cij.org/files/case-related/160/160-20161005-JUD-01-00-EN.pdf> accessed 4 November 2017.

  2. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 [38] <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 4 November 2017.

  3. Nico Krisch, Capitulation in The Hague: The Marshall Islands Cases EJIL Talk! <https://www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases/> accessed 4 November 2017; Shashank P Kumar, The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ EJIL Talk! <https://www.ejiltalk.org/the-marshall-islands-case-against-indias-nuclear-weapons-program-at-the-icj/> accessed 4 November 2017; Edoardo Stoppioni, The ICJ Decisions in the Marshall Islands Cases or the Unintended Consequences of Awareness SIDIBlog <http://www.sidiblog.org/2016/11/24/the-icj-decisions-in-the-Marshall-islands-cases-or-the-unintended-consequences-of-awareness/> accessed 4 November 2017; Vincent-Joël Proulx, The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?, III AJIL Unbound (2017) 96–101; Michael A Becker, The Dispute That Wasn’t There: Judgments in the Nuclear Disarmament Cases at the International Court of Justice, 6(1) Cambridge Intl L J (2017) 4–26; Alberto Alvarez-Jimenez, The International Law Gaze: Marshall Islands v United Kingdom. A Recent Nuclear Weapons Fiasco by the International Court of Justice, New Zealand L J (2017) <http://researchcommons.waikato.ac.nz/bitstream/handle/10289/11280/Marshall.Islands.UK.Alvarez.Jimenez..pdf?sequence=11> accessed 4 November 2017; AT Anghie, Politic, Cautious, and Meticulous: An Introduction to the Symposium on the Marshall Islands Case–Corrigendum, AJIL Unbound (2017) 111, 102–102 <https://doi.org/10.1017/aju.2017%3e.%5baq>.

  4. Andrea Bianchi, Choice and (the Awareness of) Its Consequences: The ICJ’s “Structural Bias” Strikes Again in the Marshall Islands Case, 111 AJIL Unbound (2017) 82, 83–85.

  5. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 [15] <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 4 November 2017.

  6. The legal arguments in all the cases are the same hence the case with India is used as the basis.

  7. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Memorial of Marshall Islands [13, 14] <http://www.icj-cij.org/files/case-related/158/158-20141216-WRI-01-00-EN.pdf> accessed 5 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan), Memorial of Marshall Islands [19, 65–67] <http://www.icj-cij.org/files/case-related/159/159-20150112-WRI-01-00-EN.pdf> accessed 5 November 2017 to be read with Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan), Application Instituting Proceedings against Pakistan by the Republic of Marshall Islands to the International Court of Justice [13, 14] <http://www.icj-cij.org/files/case-related/159/18294.pdf> accessed 5 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), Memorial of Marshall Islands [207–228] <http://www.icj-cij.org/files/case-related/160/160-20150316-WRI-01-00-EN.pdf> accessed 5 November 2017.

  8. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] 267 [105 (2) F] <http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf> accessed 15 November 2017.

  9. Ibid.

  10. Ibid.

  11. Text is available at: Treaty on the Prohibition of Nuclear Weapons, A/CONF.229/2017/L.3/Rev.1 <http://www.undocs.org/en/a/conf.229/2017/L.3/Rev.1>, accessed 15 November 2017.

  12. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] 255 [73] <http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf> accessed 15 November 2017.

  13. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 20 September 2017, para 26.

  14. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 [26] <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 20 September 2017.

  15. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Memorial of Marshall Islands [14–18] <http://www.icj-cij.org/files/case-related/158/158-20141216-WRI-01-00-EN.pdf> accessed 5 November 2017.

  16. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Judgment of 5 October 2016 [27–28] <http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf> accessed 20 September 2017

  17. Ibid [30, 32].

  18. Ibid [31].

  19. Ibid [41].

  20. Ibid [45].

  21. Ibid [43, 46].

  22. Ibid [46] (footnotes excluded).

  23. Ibid [47].

  24. Ibid [48].

  25. Ibid [52].

  26. Ibid [53].

  27. Ibid [51–52].

  28. Ibid [22, 32].

  29. Ibid [40].

  30. Land and Maritime Dispute (Nicaragua v Columbia), Preliminary Objections, [2007] ICJ Rep 832 [138].

  31. Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-4: Questions of Jurisdiction, Competence and Procedure, 34 Brit YB Intl L (1958) 1, 88.

  32. Ibid [90].

  33. Chittharanjan F Amerasinghe, Jurisdiction of International Tribunals (Kluwer Law International, The Hague, 2003) 21–22.

  34. Statute of the International Court of Justice, 26 June 1945, art. 38, 59 Stat 1031, 1060, T.S. No. 993; Mavrommatis Palestine Concessions (Greece v Great Britain), Judgment of 30 August 1924, [1924] PCIJ (Ser A) No 2, 11; Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Rep 6 [23]; Helnan International Hotels A/S v The Arab Republic of Egypt, Decision on Jurisdiction [2006] [52–57]; C Schreuer, What Is a Legal Dispute, in, I Buffard, J Crawford, A Pellet & S Wittich (eds) International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner, 959-980 (Martinus Nijhoff Publishers, Leiden/Boston, 2008) 960; R Jennings, Reflections on the Term “Dispute”, in, R St J Macdonald (ed) Essays in Honour of Wang Tieya (Springer, Netherlands) 401, 404 (1993); Case Concerning the Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, Judgment of 2 December 1963, [1963] ICJ Rep 37.

  35. Interpretation of Peace Treaties, Advisory Opinion, [1950] ICJ Rep 74 <http://www.icj-cij.org/files/case-related/8/008-19500330-ADV-01-00-EN.pdf> accessed 15 November 2017.

  36. Case Concerning the Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, Judgment of 2 December 1963, [1963] ICJ Rep 37.

  37. Christian Tomuschat, Article 36, in, Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian Tams (eds), The Statute of the International Court of Justice: A Commentary, 2nd edn (OUP, New York, 2012) 641–642; Robert Kolb, International Court of Justice (Hart Publishing, Portland, 2013) 300–303.

  38. South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Judgment, [1962] ICJ Rep <http://www.icj-cij.org/files/case-related/47/047-19621221-JUD-01-00-EN.pdf> accessed 15 November 2017; South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Dissenting Opinion of Judge Morelli, [1962] ICJ Rep 567 [2] <http://www.icj-cij.org/files/case-related/47/047-19621221-JUD-01-08-EN.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Owada [6] <http://www.icj-cij.org/files/case-related/158/19140.pdf> accessed 15 November 2017.

  39. Helnan International Hotels A/S v The Arab Republic of Egypt, Decision on Jurisdiction of 17 October 2006, ICSID Case No ARB/05/19 [52] <https://www.italaw.com/sites/default/files/case-documents/ita0398_0.pdf> accessed 15 November 2017.

  40. 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 [35].

  41. Robert Kolb, International Court of Justice (Hart Publishing, Oxford, 2013), 306.

  42. Christoph Schreuer, What Is a Legal Dispute?, in, I Buffard, J Crawford, A Pellet & S Wittich (eds) International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner (Brill, Leiden, 2008) 961.

  43. South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Dissenting Opinion of Judge Morelli, [1962] ICJ Rep, 567–568 <http://www.icj-cij.org/files/case-related/47/047-19621221-JUD-01-08-EN.pdf> accessed 15 November 2017.

  44. Christian Tomuschat, supra note 37, 597.

  45. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [3] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017.

  46. Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No 6, [1925] PCIJ (Ser A), No 6, 14.

  47. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [1] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Sebutinde [30] <http://www.icj-cij.org/files/case-related/158/19154.pdf> accessed 15 November 2017. In the words of Judge Sabutine: the objective awareness test is ‘not only alien to the established jurisprudence of the Court but also directly contradicts what the Court has stated in the past and with no convincing reasons.’; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Robinson [4] <http://www.icj-cij.org/files/case-related/158/19158.pdf> accessed 15 November 2017: Judge Robinson: ‘There is not a single case in the Court’s case law that authorizes the Majority’s proposition that the determination of the existence of a dispute requires a finding of the respondent’s awareness of the applicant’s positive opposition to its views; that is, that the absence of evidence of the respondent’s awareness of the other party’s opposing view is fatal to a finding that a dispute exists.’

  48. Mavrommatis Palestine Concessions (Greece v UK), [1924] PCIJ (Ser B) No 3 (August 30) [19] <http://www.worldcourts.com/pcij/eng/decisions/1924.08.30_mavrommatis.htm> accessed 6 November 2017.

  49. South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Judgment of 21 December 1962, [1962] ICJ Rep 319, 328.

  50. East Timor (Portugal v Australia), Judgment, [1995] ICJ Rep 100 <http://www.icj-cij.org/files/case-related/84/084-19950630-JUD-01-00-EN.pdf> accessed 15 November 2017.

  51. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, Judgment, [1996] ICJ Rep (II) 615 [30].

  52. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, Judgment, [1996] ICJ Rep (II) 615 [28].

  53. Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment, [2005] ICJ Rep 19 [25].

  54. Ibid.

  55. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, [2012] ICJ Rep 444 [54]. For the criticism of the formalistic approach taken by the Court, refer to the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, Separate Opinion of Judge Abraham, [2012] ICJ Rep 444 [18–19] <http://www.icj-cij.org/files/case-related/144/144-20120720-JUD-01-02-EN.pdf> accessed 15 November 2017.

  56. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, Judgment, [2011] ICJ Rep 85.

  57. Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment, [2003] ICJ Rep 19 [26–27].

  58. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, [2008] ICJ Rep [51–64]; Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Judgment, [1996] ICJ Rep 809 [16–22]. Anglo-Iranian Oil Co Case, Jurisdiction, Judgment of 22 July 1952, [1952] ICJ Rep 103–107.

  59. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), Preliminary Objections, Judgment of 17 March 2016, [2016] ICJ Rep [73].

  60. Ibid [72].

  61. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [3–6] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Robinson [26–27] <http://www.icj-cij.org/files/case-related/158/19158.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Sebutinde [30–32] <http://www.icj-cij.org/files/case-related/158/19154.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Bennouna 5–6 <http://www.icj-cij.org/files/case-related/158/19144.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Declaration of Vice-President Yusuf [7–8] <http://www.icj-cij.org/files/case-related/158/19138.pdf> accessed 15 November 2017; Vincent-Joël Proulx, The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice? 111 AJIL Unbound (2017) 96, 98.

  62. See The Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), Preliminary Objection, [1939] PCIJ (Ser A/B) No 77 82–83; Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, [1998] ICJ Rep 316–317 [92].

  63. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Owada [14] <http://www.icj-cij.org/files/case-related/158/19140.pdf> accessed 15 November 2017.

  64. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [6] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017.

  65. Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J Tams (eds), The Statute of the International Court of Justice: A Commentary (OUP, Oxford, 2012) 1514; RB Bilder, The Fact/Law Distinction in International Adjudication, in, RB Lillich (ed) Fact Finding before International Tribunals (Brill Nijhoff, Netherlands, 1992) 95–98; Franco German Mixed Arbitral Tribunal in Heim and Chamant case, III RDTAM (1992) 50, 55. The Court has in previous instances held that it has jurisdiction as there existed a legal dispute over “fact and law”: Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Rep 6, 17–18 [23–25]; East Timor (Portugal v Australia), Judgment of 30 June 1995, [1995] ICJ Rep 90, 99 [21–22].

  66. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Sebutinde [31] <http://www.icj-cij.org/files/case-related/158/19154.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [2] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Robinson [24] <http://www.icj-cij.org/files/case-related/158/19158.pdf> accessed 15 November 2017.

  67. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Separate Opinion of Judge Owada [12] <http://www.icj-cij.org/files/case-related/158/19140.pdf> accessed 15 November 2017.

  68. East Timor (Portugal v Australia), Judgment, [1995] ICJ Rep 100 [22].

  69. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Bennouna 2 <http://www.icj-cij.org/files/case-related/158/19144.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Declaration of Judge Gaja [4] <http://www.icj-cij.org/files/case-related/158/19152.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Robinson [52–55] <http://www.icj-cij.org/files/case-related/158/19158.pdf> accessed 15 November 2017; Vincent-Joël Proulx, The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice? 111 AJIL Unbound (2017) 96, 98.

  70. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Bennouna 2 <http://www.icj-cij.org/files/case-related/158/19144.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Cançado Trindade [7, 12–13] <http://www.icj-cij.org/files/case-related/158/19146.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Robinson [55] <http://www.icj-cij.org/files/case-related/158/19158.pdf> accessed 15 November 2017; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Crawford [8–10] <http://www.icj-cij.org/files/case-related/158/19160.pdf> accessed 15 November 2017, [8–10]; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Opinion Dissidente De M Le Juge Ad Hoc Bedjaoui [44–45] <http://www.icj-cij.org/files/case-related/158/19163.pdf> accessed 15 November 2017.

  71. Application of the Convention on Prevention and Punishment of Genocide (Croatia v Serbia), Preliminary Objections, [2008] ICJ Rep 438 [80].

  72. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Preliminary Objections, Judgment, [1998] ICJ Rep 25–26 [42–44]; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary Objections, Judgment, [1998] ICJ Rep 130–131 [42–44]; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, [2012] ICJ Rep (II) 444 [54].

  73. Nuclear Tests (New Zealand v France), Judgment, [1974] ICJ Rep 457; Shabtai Rosenne, The Law and Practice of the International Court 1920–2005, vol I (M. Nijhoff Publishers, Leiden, 2006) 535.

  74. Nuclear Tests (New Zealand v France), Judgment, [1974] ICJ Rep 457.

  75. ‘Even assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article II was not yet effective, it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant's suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications.’: Mavrommatis Palestine Concessions (Greece v Great Britain), Judgment of 30 August 1924, [1924] PCIJ (Ser A) No 2, 34.

  76. Ibid, 35.

  77. Christian Tomuschat, Article 33, in, Bruno Simma (ed) The Charter of the United Nations – A Commentary, vol I, (OUP, Oxford, 2012) 591.

  78. See Vincent-Joël Prolux, 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, NUS Working Paper Series, Paper No 2017/007, July 2017 <http://law.nus.edu.sg/wps, p> accessed 7 November 2017.

  79. Robert Kolb, International Court of Justice (Hart Publishing, Oxford, 2013), 307.

  80. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Memorial of Marshall Islands [16–17] <http://www.icj-cij.org/files/case-related/158/158-20141216-WRI-01-00-EN.pdf> accessed 15 November 2017.

  81. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), Jurisdiction of the Court and Admissibility of the Application, Declaration of President Abraham [5] <http://www.icj-cij.org/files/case-related/158/19136.pdf> accessed 15 November 2017.

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    Aniruddha Rajput

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Correspondence to Aniruddha Rajput.

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Member, UN International Law Commission; Consultant, Public International Law and International Arbitration, Withers LLP, London, UK; Advocate Supreme Court of India. I thank Sarthak Malhotra, Vishakha Choudhary, Vaishali Movva and Tanishtha Vaid for their research assistance.

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Rajput, A. Necessity of “objective awareness” for the “existence of dispute”. Indian Journal of International Law 58, 85–109 (2018). https://doi.org/10.1007/s40901-018-0091-x

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